Under the heading, "Terminal Roads, Elevator Charges, and Private Cars," the following was said:

jurisdiction than that which in any way occurred to it was necessary?

The act as it was enacted in 1887 defined "It has been suggested that the Congress the term "railroad" and the term "transshould prohibit railways from employing portation," the latter as follows: "And the any agency or using any facility in the term 'transportation' shall include all intransportation of property which is fur-strumentalities of shipment or carriage." nished by the owner of the property. We The definition was very comprehensive, and should hesitate to recommend at this time needed not the mobilization of its denotaso drastic a measure as that. Assuming tion; but this subsequently was attempted. that such a law would be a constitutional Words, indeed, were multiplied-was meanexercise of authority, it would seriously in- ing changed? terfere with property rights which have grown up under the present system. More: over, there are many instances in which the service can be rendered or the facility furnished more advantageously both to the shipper and railway, and without injury to the public, if provided by the shipper himself."

After commenting on the amendment to § 16 and the added § 16a, the Commission explained that—

In 1906 the term "transportation" was defined to "include cars and other vehicles and all instrumentalities and facilities of shipment or carriage. . . ." The words are not much less general than the words of the Act of 1887. There is no advance made by them or enlargement of meaning. There was simply a useless tautology. But granting it was not and that Congress deemed a special declaration of things to be necessary, such declaration did not alter "It will thus be seen that the substan- the relation of the companies to them. The tial amendments proposed are few in num-duty which attached to "instrumentalities" ber and easily understood, the remaining changes being merely such as are needful to harmonize other parts of the act with the main amendments . . . In brief, the proposed measure amends certain sections of the act to regulate commerce and is confined to such recommendations as are deemed necessary to effect its intended purpose, and thereby furnish adequate protection against excessive and discriminating charges."

It will be observed that there is not one word in the report that indicates that there was a necessity or desire for the power exercised in the order under review. Indeed, there was directly expressed an approval of private cars, and the opinion declared that they were a facility which could be furnished more advantageously both to the shipper and the railroad, without injury to the public, if provided by the shipper himself, and the recommendation was that they be brought under the jurisdiction of the Commission and thereby prevent oppressive and discriminatory practices; the principle being, to borrow from another, that all services incident to transportation, whether primary (carrying the goods) or accessorial (caring for the goods in transit whenever such care calls for special facilities or special equipment), should be subject to the same supervision and regulation. But is there anything in the words of the amendment which exhibits on the part of Congress a larger knowledge of conditions than the Commission had, and that Congress, in a broader comprehension and judgment of the conditions and their remedy, gave the Commission a greater

of the Act of 1887 attached to the things covered by its comprehensive generality,— to the things declared in the amendment of 1906, that is, to "cars," "vehicles," "facilities." And this duty under the Act of 1887, we have seen, had, in the opinion of the Commission, the sanction only of the common law. Under the amendment the most that can be said is that the duty is particularized. Its sanction is not enlarged.

But other words occur which, it is contended, have such effect. These words are: "And it shall be the duty of every carrier to provide and furnish such transportation upon reasonable request therefor

.

This, however, is but the expression of a necessary implication. It was useless to declare that whatever a carrier must do, he must do "upon reasonable request." The duty having been imposed, it necessarily could be demanded. But the expression of the right, if it needed 'expression, adds nothing of indication to the previous words of the tribunal by which the demand was to be enforced.

But it is said the duty having explicit declaration, the power to enforce it was found in § 12 as amended March 2, 1899, as follows: "And the Commission is hereby authorized and required to execute and enforce the provisions of this act." (25 Stat. at L. 855, 858, chap. 382, Comp. Stat. 1913, §§ 8569, 8576.)

But this casts us back to our general considerations, to which we may only add that there was no question of the duty of carriers either under the Act of 1887 or

"Practices" were not otherwise or pre-ing; and we cannot but believe that if becisely defined either in the report or in the amendment recommended and as finally passed. Regarding only its broad generality anything may be asserted of it; regarding its context and the conditions which existed, an immediate limitation of it is indicated, made necessary, as we shall presently show.

The private

portation would be exempt. The purpose aggregate, only 303 tank cars.
of the provision reviewed was declared to
be the regulation of facilities possessed by
the carrier, that there should be no unjust
discrimination, and the plain intent to be
that the shipper should not be required to
deal with any other than the carrier. And
this, as far as we can glean from the
extensive congressional literature, was the
end sought. In other words, it was on ac-
count of the abuses of the private car sys-
tem, not in its uses, that legislation was
urged.

ly owned tank cars east of the Mississippi
aggregate about 27,700, and the total num-
ber of tank cars owned in the United States
was given as approximately 40,000."

This, then, was the situation of the railroad, not dissimilar to that of other railroads, not therefore created in deliberate fault, but in accommodation to conditions useful to shippers, advantageous to the railroad, beneficial to the public, as the Commission had declared; and yet a change is suddenly required. The burden of the requirement we shall presently notice. Of course, if there is a duty upon a car

upon request, its enforcement cannot be arrested by the burden it imposes; but here again the thought obtrudes, which we have already expressed-it may be to tiresome extent-that if Congress had intended such consequence with all that it implies of expense, directly and indirectly, it would not have left its intention to be evolved from obscure language, but would have put it in explicit declaration and with notice and time for accommodation to it.

There was some sentiment outside of the Commission for the abolition of the private car system, but abolition was not attempt-rier to furnish tank or other special cars ed. It would have been a short cut to the solution of the problems and could easily have been accomplished by requiring the railroads to furnish all of the equipment necessary for taking care of all kinds of traffic. But neither the government nor the Commission contends for such an extreme, and to forestall the charge that the order has such tendency represents that the duty of the carrier to furnish special equipment is not absolute, but relative to the conditions of trade and the business of the shipper. This weakens the principle upon which the duty is based. If there be a duty, it would seem necessarily to be universal. And such contention is growing.

It is to be remembered that the tank car is both package and car, must have special mechanical means of loading and unloading. May these, too, be ordered? Are they not a "method and manner of presenting, marking, packing, and delivering property for transportation," to use the lan

A friend of the court appears in the form of a salt company and presents an argument in support of the order of the Com-guage of § 1, as amended? mission and asserts the right to a special equipment for the transportation of salt in bulk.

It is difficult to particularize all that the ruling of the Commission implies of power. What of omission or commission in the carLittle more need be said. Private cars rier's relation to the public may not be came into existence as conveniences or said to be a practice or practices in the necessities to particular businesses, develop- broad sense attempted to be given to those ing by degrees and differentiating accord- words? A railroad's powers are its duties, ing to conditions. It was said in argu- bearing, of course, obligations; and all of ment that there are different kinds of tank them by the asserted construction are swept cars for different oils and liquids, and there under the jurisdiction of the Commission, are cars for live stock, fruit, live poultry, -so swept by a single word, not of itself milk, and, as we have seen, salt in bulk. apposite, and determined besides by its asWhat others there are neither the recordsociation against the contention. This was nor the argument has given us information, apparent to the dissenting Commissioners nor the extent of their specialization. How- and repelled their concurrence. Well might ever, the information is not needed. The they have recoiled from going to such exfacts of the present case illustrate the con- treme upon doubtful implication, and have dition of the carriers of the country. De- been impelled to declare, as they did describing it, the Commission says: clare, that if such power was given, it logically and necessarily extended to every facility of transportation.

"The bulk of the movement of refined oil is in tank cars owned by the shippers. In 1887 the Pennsylvania Railroad acquired 1,308 tank cars, some of which have subsequently been sold to independent refineries. Defendant now owns 499 tank cars, all that remain of those purchased in 1887, and 482 of which are furnished to shippers of oil located on its lines. The other railroads east of the Mississippi river own, in the

As to whether this is desirable, we express no opinion, and we only mean now to say that it was not expressed as desirable in the statutes which we have considered, nor was there a word or a line from the Interstate Commerce Commission, so far as the record shows or intimates, of recommendation of such result. Indeed,

there is intimation that such result would | N. W. R. Co. 241 U. S. 55, 60 L. ed. 885, be radical, and, as said by the railroad 36 Sup. Ct. Rep. 501.

demand from a shipper to furnish cars for transportation at terminal points within forty-eight hours and at intermediate points within seventy-two hours after such demand, Sundays and legal holidays excepted. A penalty was imposed for each day's delay. This court held that by § 1 of the Hepburn Act Congress had legislated concerning the delivery of cars in interstate commerce by carriers subject to the act. This was based upon the definitions of § 1 of the provisions of §§ 8 and 9. The questions in the case were not those in the present case. The kinds of equipment were not involved nor the questions dependent upon them. The only question was as to whether Congress had entered the field of regula tion.

company, "the Safety Appliance Acts indi- The Hardwick Elevator Case passed upon cate that when Congress contemplates the a law of Minnesota, known as the Minneimposition of obligations with respect to sota Reciprocal Demurrage Law, which the equipment of carriers, it covers the sub-made it the duty of a railroad company on ject by careful, specific rules." And we may further say with the company that "it is pertinent to inquire why committees of Congress should consider, as they continue to do from time to time, the wisdom of devolving on carriers the duty to furnish steel coaches for passenger traffic, if already the provisions of the act to regulate commerce are broad enough to cover matters of this kind?" And there is strength in the observation of the railroad company that if the argument based upon the word "practice" or "practices" were sound, "it could be contended with equal reason that every detail of railroad operation is a practice within the meaning of the act; why should the Commission ask that it be empowered to require the use of the block signal system? (Report of 1913, page 82.) Why should the Commission make this request if, because of its jurisdiction with respect to practices, it is already endowed with power to regulate the details of operation of carriers?"

The United States and the Commission insist that they have authority of cases for their two fundamental propositions, to wit: (1) That it is the duty of the railroad to furnish equipment for the transportation of products; and (2) that the Commission has the jurisdiction to enforce that duty. The authorities upon the first proposition we are not concerned to review. The duty, as far as this question is concerned, may be admitted, certainly admitted in its general sense. But we need not pause to distinguish its application in the cases to special equipment as distinguished from common equipment, or how much the decisions were based upon the belief of the shipper, justified or encouraged by the railroads, that the equipment required would be furnished. With the second proposition we are concerned, and a consideration of the cases becomes necessary, as they are cases in this court and are cited to sustain the power of the Commission. They are as follows: Chicago, R. I. & P. R. Co. v. Hardwick Farmers Elevator Co. 226 U. S. 426, 57 L. ed. 284, 46 L.R.A. (N.S.) 203, 33 Sup. Ct. Rep. 174; Ellis v. Interstate Commerce Commission, 237 U. S. 434, 59 L. ed. 1036, 35 Sup. Ct. Rep. 645; Yazoo & M. Valley R. Co. v. Greenwood Grocery Co. 227 U. S. 1, 57 L. ed. 389, 33 Sup. Ct. Rep. 213; Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 58 L. ed. 1377, L.R.A.1915E, 942, 34 Sup. Ct. Rep. 790; Menasha Paper Co. v. Chicago &

In Yazoo & M. Valley R. Co. v. Greenwood Grocery Co. there was also involved a statute which penalized delays in delivering cars. It was held to be within the decision of the Hardwick Elevator Case, as it undoubtedly was.

In the Harris Case, the Carmack Amendment [34 Stat. at L. 593, chap. 3591, Comp. Stat. 1913, § 8592] was decided as not excluding a state statute allowing an attorney's fee in certain actions based on claims for small amounts against railway companies. It has no relevancy to the present case.

The Ellis Case grew out of a right asserted by the Interstate Commerce Commission to inquire whether Armour & Company, shipping packing-house products in commerce among the states, was controlling the Armour Car Lines and using them as a device to obtain concessions from the published rates for transportation. A series of questions were put to a witness in regard thereto which he refused to answer, and proceedings to compel his testimony were instituted. A question of the power of the Commission was presented and that was made to depend upon whether the Armour Car Lines was a common carrier subject to the Interstate Commerce Act. It was replied that the Car Lines Company had no control over the motive power and movement of the cars and was not a common carrier subject to the act. And this was said: "It is true that the definition of transportation in § 1 of the act includes such instrumentalities as the Armour Car Lines lets to the railroads. But the definition is a preliminary to a requirement that the carriers shall furnish them upon rea

sonable request, not that the owners and | vest the company of its duty as a carrier. builders shall be regarded as carriers, con- This might be if there was a duty; but the trary to the truth." The language was perfectly apposite to the question under consideration, the relation of the Armour Car Lines to the Armour Company and to the railroad. The cars the latter obtained from the Car Lines Company constituted the equipment of the railroad company and were, of course, subject to the provisions of the Interstate Commerce Act.

United States seeks to establish the duty from the offer of the company, and must take the offer as made, and cannot, nor can the Commission, ignore its explicit qualification that the company assumed no obligation to furnish tank cars. The finding of the Commission, therefore, was one of law, and not of fact, and is reviewable.

The railroad company, besides the contenThe question with which the present case tions of want of power in the Commission is concerned was not presented to the court to make the order under review, object to nor intended to be decided. The testimony it (1) in that it is defective because it sought by the Commission was to expose requires the company to supply cars for and prevent what were supposed to be dis-movement over the lines of other carriers; criminatory practices, and the right to re- and (2) that it is not administrative in quire the testimony depended, it was the character, but is uncertain, indefinite, and effect of the decision, upon the relation of unlawful. the Armour Company to the Armour Car Lines through the railroad, and whether what was paid to the Armour Car Lines was in effect paid to the Armour Company and made a means of discrimination. This view was rejected and it was said: "It does not matter to the responsibility of the roads whether they own or simply control the facilities, or whether they pay a greater or a less price to their lessor," the lessor of that case being the Armour Car Lines; and, as it was not shown that it was merely the tool of the Armour Company, it had immunity from the investigation. The case, therefore, is not authority for the proposition which it is urged to support.

Menasha Paper Co. v. Chicago & N. W. R. Co. needs no comment. It quotes but attempts no explanation of the words of the statute that is relevant to our present inquiry. Indeed, in all of the cases the points of inquiry and decision were different from the case at bar. They declared or enforced or recognized the general duty of carriers under the particular facts and the law to which the carriers were subject.

It is next contended by the United States that the railroad has held itself out specifically to carry oil in tank cars, and the fact, it is said, has been found by the Commission and is not reviewable, citing United States v. Louisville & N. R. Co. 235 U. S. 314, 320, 59 L. ed. 245, 250, 35 Sup. Ct. Rep. 113. We are unable to assent.

The railroad company in its answer to the petition before the Interstate Commerce Commission alleged that rule 29 of the official classification No. 39, providing rates for articles in tank cars, stated that the carriers whose tariffs were covered by such classification did not assume any obligation to furnish tank cars. There is a concession in the brief of the Interstate Commerce Commission that such was the published tariff, though contesting its efficacy to de

In support of the first contention the railroad company points out that the company owns more tank cars than all of the other carriers east of the Mississippi river, amounting at the time of the hearing to 499 cars. The total ownership of other cars east of the Mississippi river amounted to 303, and the privately owned tank cars to 27,700. It therefore appears, it is said, that the railroad ownership is less than 3 per cent of the total ownership, and that of this 3 per cent the company is furnishing more than half. The company, therefore, asserts that if it be compelled to furnish all of the tank cars required for the transportation of oil on its line, irrespective of their destination, it is obvious that a burden out of all proportion is placed upon it. It further complains that although the New York Central Railroad serves the oil companies equally with it, no order is made against that company, but, on the contrary, the entire burden is devolved upon it.

In support of the second contention, the company asserts that the order of the Commission is not administrative is indicated by decisions of this court in actions for failure to furnish cars. The cases are: Louisville & N. R. Co. v. F. W. Cook Brewing Co. 223 U. S. 70, 56 L. ed. 355, 32 Sup. Ct. Rep. 189 (1912); Eastern R. Co. v. Littlefield, 237 U. S. 140, 59 L. ed. 878, 35 Sup. Ct. Rep. 489 (1915); Pennsylvania R. Co. v. Puritan Coal Min. Co. 237 U. S. 121, 59 L. ed. 867, 35 Sup. Ct. Rep. 484 (1915); Illinois C. R. Co. v. Mulberry Hill Coal Co. 238 U. S. 275, 59 L. ed. 1306, 35 Sup. Ct. Rep. 760 (1915).

Again, it is charged that the order expressed by a legislative principle has the generality of such principle without any criterion of application. The order requires the company to "provide. upon reasonable request and reasonable notice,