lation by the Railroad Commission as may be deemed conclusive evidence of a dedication provided by the Legislature."

of such property to public use, since it could
not have exercised such right other than in
"behalf of a public use" (section 1238, Code
Civ. Proc.) as "an agent of the state or per-
son in charge of such use" (section 1001, Civ.
In State ex rel. Turnpike Co. v.
Code).
American & E. News Co., 43 N. J. Law, 381,
it is said:

"The fact that the Legislature has granted the right to take private property clearly evinces a legislative intent to lay such companies under an obligation to the public to permit the use of their lines by all persons, under reasonable regulations; and in accepting the benefit of this law, the recipient of the same assumes the performance of this duty to the public."

As appears from the record, petitioner asserted and proved that it was a common carrier in the transportation of oil, thereby bringing itself directly within the provisions of the Constitution (section 23, art. 12) hereinbefore referred to. Having thus acquired such right of way by holding itself out as a common carrier and as agent of the state in charge of a public use, without which it could not have seized property vested in private ownership, it should not now be heard in disclaimer of the profession so made and upon the faith of which judgment in its favor condemning the property to the public use of which it was in charge, was

and the Producers' Agency, upon the faith | 5. EMINENT DOMAIN 2(1) "TAKING" of which it is claimed the pipe line was constructed. They are not affected by the order made. If such contracts are valid, no legal action had by the commission could impair the obligation thereof; if invalid, the argument based thereon is without force.

Where pipe line companies, transporting oil, made no irrevocable dedication of property to public use, such as the exercise of the power of eminent domain, in order to make them subject to the regulation of Const. art. 12, § 23, and St. 1913, p. 657, regulating common carriers of oil by pipe line, or otherwise, it must be shown that they voluntarily devoted their facilities to the indiscriminate use of the public for hire, so as to become common carriers. Its declared purpose was an investigation 4. CARRIERS 4 PIPE LINE COMPANIES REGULATION-PUBLIC CARRIERS "COMMON to determine what corporations and associations were subject to the provisions of said

Pipe line companies, owning oil fields and act of the Legislature. Pursuant to an ortransporting only oil produced therein, or pur-der therein made, petitioners and a number chased by them from other producers for the operation of their own business, not constituting of other corporations engaged in the transa monopoly of the transportation, are not com-portation of crude oil and its products by mon carriers of oil, within Const. art. 12, § means of pipe lines appeared before the com23, or St. 1913, p. 657, regulating common carmission at a stated time and place to show riers of oil for hire, or otherwise, and need not file schedules of rates with the Railroad Com- cause why each of them should not file with mission. the commission the data and information

therein specified, and otherwise comply with to the provisions of the Public Utilities Act the law.

At the hearing had evidence was adduced touching the subject of inquiry, upon which the commission made its findings and order which it is sought herein to have annulled. Section 23, art. 12, of the Constitution of California, as amended in October, 1911, pursuant to which the act in question was adopted, is as follows:

every private corporation, individual, or association of individuals

(a) engaged in transporting crude oil, petroleum or the products thereof through a pipe line, "directly or indirectly, to or for the public, for hire, compensation or consideration of any kind, paid, given, extended or received, directly or indirectly, for such transportation"; (b) any like person or body "in favor of whom the right of eminent domain exists," engaged in such transportation to or for the public for hire, through a pipe line "constructed or maintained upon, along, over or under any public highway"; (c) any corporation, individual or association of individuals transporting crude oil, petroleum or the products thereof, to or for the public, for hire "or otherwise," by means of a pipe line "constructed, operated or maintained across, upon, along, over or under the right of way of any railroad corporation or other common carrier required by law to transport crude oil, petroleum or products thereof, as a common carrier."

“Every private corporation, and every individual or association of individuals, owning, operating, managing, or controlling, any commercial railroad, interurban railroad, street railroad, canal, pipe line, plant, or equipment, or any part of such railroad, canal, pipe line, plant or equipment within this state, for the transportation or conveyance of passengers, or express matter, or freight of any kind, including crude oil, or for the transmission of telephone or telegraph messages, or for the production, generation, transmission, delivery or furnishing of heat, light, water or power, or for the furnishing Restated, subdivision (a) of section 1 emof storage or wharfage facilities, either directly braces only those engaged in the business of or indirectly, to or for the public, and every com- transporting oil as common carriers. Submon carrier, is hereby declared to be a public utility subject to such control and regulation division (b) is the same as subdivision (a), by the Railroad Commission as may be provided except that the act in its operation is reby the Legislature, and every class of private stricted to those in whom the power of emcorporations, individuals, or associations of indi-inent domain exists (though not exercised), viduals hereafter declared by the Legislature to be public utilities shall likewise be subject to such control and regulation. The Railroad Commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities, as shall be conferred upon it by the Legislature, and the right of the Legislature to confer powers upon the Railroad Commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this Constitution."

con

By this provision of the Constitution the people of the state, however novel, if not startling, the proposition may be, have in clear and unmistakable language declared: That "every class of private corporations, individuals, or associations of individuals hereafter declared by the Legislature to be public utilities, shall * * *be subject to * * trol and regulation" by the Railroad Commission, as provided by the Legislature, and this without reference to the character of the business, whether it be a bootblack stand, grocery store, or agricultural pursuit conducted in a purely private capacity; and, further, that "the right of the Legislature to confer powers upon the Railroad Commission respecting public utilities, is hereby declared to be plenary and to be unlimited by any provision of this Constitution."

[1] Acting in pursuance of the power so conferred, the Legislature adopted the act referred to as chapter 327, section 3 of which provides that:

"Any pipe line constructed, acquired, owned, operated, maintained, managed or controlled by any private corporation, or individual or association of individuals, for any of the purposes or under any of the conditions specified in section 1 or section 2 of this act, is hereby declared to be a public utili and subject to the provisions of the Public Utilities Act.'

Referring to section 1, divided into four subdivisions, we find that by subdivisions designated (a), (b), and (c) the Legislature

and whose pipe lines are constructed over public highways. Subdivision (c), retaining the provision that the transportation be for the public for hire, adds after the word "hire" the words "or otherwise," and restricts the operation of the provision to pipe lines constructed along the rights of way of common carriers required to transport oil. It thus appears that subdivisions (a), (b), and (c) of section 1 apply solely and alone to those who, by means of pipe lines, are engaged in the transportation of crude oil and its products to or for the public.

As bringing the petitioners within the provisions of these subdivisions, the commission found as a fact that in the transportation of crude oil and its products by means of pipe lines from the San Joaquin Valley petitioners were common carriers thereof, or, in the language of the statute, they were engaged in transporting such articles "to or for the public for hire." In our opinion, there is no evidence to support this finding as to either of the petitioners.

[2] In his work on Carriers, Mr. Moore, at page 20, vol. 1, defines a common car

rier as:

One who "holds himself out as such to the world; that he undertakes generally and for all persons indifferently to carry goods and deliver them for hire; and that his public profession of his employment be such that, if he refuse. without some just ground, to carry goods for any one, in the course of his employment and for a reasonable and customary price, he will be liable to an action."

It is one who offers to carry goods for any person between certain termini and who is bound to carry for all who tender their goods and the price of carriage.

[3] Whether the business conducted by petitioners was that of a common carrier as

may not be said that the intention of the Leg- which was one-half of the full carrying caislature in enacting subdivisions (a), (b), and pacity. The other interest in the capacity of (c) of section 1 of the act was to subject to said pipe lines so owned by the Associated public use pipe lines engaged in the business Oil Company has never at any time since the of transporting oil other than for the public. | construction thereof been devoted to the Indeed, such legislation, if attempted, would carrying of oil or products other than those have been futile, since under the Fourteenth either produced by the Associated Oil ComAmendment of the federal Constitution no pany or purchased in the oil field by it in its state shall deprive any person of property business of producing, buying, and selling oil, without due process of law, and to take or both in crude and refined forms. In 1913 its devote private property to public use without daily production of oil amounted to 16,500 compensation is such deprivation. The rec- barrels, and at the same time it was purchasord discloses no action on the part of either ing about 30,000 barrels per day, which, as petitioner which constitutes an irrevocable | found by the commission, amounted to about dedication of its property to a public use, 22 per cent. of the entire production of the such as the exercise of the sovereign power state. It thus appears that one half of all of the state in eminent domain. Wyman on the oil transported through these pipe lines Public Service Corporations, § 214; State ex was produced by the Kern Oil & Trading rel. Turnpike Co. v. Am. & E. News Co., 43 Company, so owned by the Southern Pacific N. J. Law, 381. Hence, in order to bring pe- Company, for the use of the latter, and the titioners within the purview of the provisions other half so transported was either prounder consideration, it must have been made duced or bought by the Associated Oil Comto appear that they had voluntarily devoted pany, by whom it was transported and detheir transportation facilities to the indis-livered to itself at the termini of said pipe criminate use of the public for hire, thus con- lines. stituting them common carriers.

At

With reference to the other petitioner, Associated Oil Company: As stated, it had a daily production of 16,500 barrels and acquired by purchase 30,000 barrels per day, making a total of 46,500 barrels; hence, its one-half the capacity of the Associated Pipe Line Company being only 19,000 barrels per day, left an amount for transportation by other means of 27,500 barrels. For the purpose of such transportation, it, in addition to ownership in the Associated Pipe Line Company, owns a pipe line running from the oil fields to Gaviota, and one from the Coalinga field to Monterey, the capacity of each of which is some 15,000 barrels per day. no time since the construction thereof has the Associated Oil Company transported any oil through either of these pipe lines, save and except such as it produced, together with that so purchased in the field and transported for delivery to itself at the termini of said pipe lines, where it was sold to consumers in its crude or refined form, or reshipped to other points for sale to consumers. The only efficient means of transporting oil from the San Joaquin Valley oil fields, which in July, 1913, as found by the commission, amounted to some 6,500,000 barrels, was by means of pipe lines of the petitioners and those of a number of other companies engaged in the transportation of oil, all of which product, except that produced by the Kern Oil & Trading Company and Associated Oil Company, together with the 30,000 barrels per day purchased by said last-named company, was transported through and by means of such other independent pipe lines in which petitioners had no interest.

As to the Associated Pipe Line Company, the evidence shows that it was incorporated in August, 1907, "for the acquisition, construction, leasing, owning, maintenance, and operation, but not as a common carrier, of pipe lines for transportation of oil within the state of California, together with necessary pumping stations thereunder." At the time in question the Southern Pacific Company was, through a subsidiary company known as the Kern Oil & Trading Company having charge of its oil bureau, engaged in developing oil lands owned by it in Kern county, the production from which was intended for its own use, and, as a means of delivering the oil so produced to points along its line of railroad, it joined with the Associated Oil Company in the construction of two pipe lines, the aggregate daily carrying capacity of which, in 1913, was 38,000 barrels. The cost of construction represented by the capital stock of the Associated Pipe Line Company was equally divided between the Associated Oil Company and the Kern Oil & Trading Company, and under their agreement, no charge being made for the transportation of oil other than the actual cost of operation and maintenance of the pipe line, each was entitled to one-half the carrying capacity of said lines, one of which was known as the Rifle line, being 281 miles in length, and the other, known as the Hot line, 138 miles in length. At all the times since the construction of these pipe lines the Kern Oil & Trading Company has devoted its onehalf of the carrying capacity of said lines solely and alone to the transportation of oil produced by it and delivered to its pro- [4] We are unable to perceive anything in prietary company, the Southern Pacific Com- the facts established which does not compel pany, for the sole use of the latter. In 1913 the conclusion that petitioners were engaged

use.

Subbdivision (d) of section 1 embraces every one

"owning, using, operating, managing or controlling, directly or indirectly, or participating in the ownership, use, operation, management or control, directly or indirectly, under lease, contract of purchase, agreement to buy and sell, or other contractual or tacit agreement or arrangement of any kind or character whatsoever, of any pipe line, or pipe lines, or any part of any pipe line, or pipe lines, plant or equipment, or pipe line system, or any part of any pipe line system, for the transportation of crude oil, petroleum or the products thereof, of and from, or of, or from any oil field or place of production within the state of California, to any distributing, refining, or marketing center or reshipping point therefor within said state, whereby, or under, or through which, directly or indirectly, such corporation, or any corporation or association of corporations, or individual or association of individuals secures, or is enabled to secure, or attempts to secure, or tends to secure, the control of, or monopoly of the purchasing of, or the control of, or monopoly of the transportation of such crude oil, petroleum or the products thereof."

oil through these pipe lines. Respondent lays | Ct. 622, 37 L. Ed. 463, and Del Mar v. EshleIngreat stress upon a decision of the United man, 167 Cal. 666, 140 Pac. 591, 948. States Supreme Court entitled U. S. v. Ohio deed, our attention is directed to no authoriOil Co., 234 U. S. 548, 34 Sup. Ct. 956, 58 L. ty in this state or elsewhere holding otherEd. 1459. To our minds, there are many wise. features of this case which clearly distinguish it from that at bar. In the Ohio Oil Company Case it appears that the Standard Oil Company had acquired control of all pipe lines to which the oil fields east of California were tributary, thus giving it a monopoly of the means of transportation; that a part of the pipe lines constituting the system were in fact common carriers. Having thus made itself master of the fields without the necessity of owning them or producing any oil itself, it, through its subordinates, refused to carry oil unless the same was sold to it, or to its subsidiaries and through them to it, on terms dictated by itself. It was there held that since, subject to such condition of sale to it, the company carried everybody's oil to market, the act of Congress declaring the pipe lines so operated to be common carriers was not a taking of the property for the use of the public, since upon the facts found such pipe lines had been by the owners thereof devoted to public In the case at bar a large part of the oil transported through the pipe lines by the Associated Oil Company is produced by it. The amount of 30,000 barrels per day purchased bears a comparatively small proportion to that produced in the oil fields tributary to its lines. The fact of such limited purchase, in competition with a number of other oil pipe line companies to which said oil field is tributary, cannot, under the opinion in the Ohio Oil Company Case, however interpreted, be deemed to constitute it a common carrier, or engaged in transporting oil for the public. Indeed, the opinion of the Supreme Court in the case of U. S. v. Uncle Sam Oil Co., found in the same book (page 561), is authority for holding the contrary view. The fact that "the business is such that the public needs the use in the same, and that the conduct of the same is a matter of consequence," as found by the commission, is immaterial to the question. In one of the so-called elevator cases, that of Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, it is said: "When, therefore, one devotes his property to a use in which the public has an interest, he, in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created."

But so long as he uses his property for private use, and in the absence of devoting it to public use, the public has no interest therein which entitles it to a voice in its control. Other cases to the same effect are Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247; Weems Steamboat Co. v. Peoples' Co., 214 U. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222; Monongahela Nav. Co. v. U. S., 148 U. S. 336, 13 Sup.

As bringing petitioners within this provision of the act, the commission found that "the purpose of chapter 327 of the Laws of 1913 is to terminate and prevent a monopoly in the oil pipe line business," and found as a fact that the Associated Oil Company and Associated Pipe Line Company, together with three other companies named as engaged in like business, "have secured the control and monopoly of the transportation of crude oil, petroleum, and the products thereof from the San Joaquin Valley oil fields," and that, while section 5 of the act excepts from the provisions thereof companies, individuals, and associations the nature and extent of whose business is not of public interest or consequence, "the five companies (among which were petitioners) serving the San Joaquin Valley fields cannot be regarded as coming within the exception," and further found as a fact that the nature and extent of the business of said five companies, including petitioners, "is such that the public needs no use in the same, and the conduct of the same is not a matter of public consequence.”

The finding as to the control and monopoly secured by petitioners is attacked upon the ground of insufficiency of evidence to support the same. The evidence touching the subject is most meager and unsatisfactory. In effect it shows that five companies, including petitioners, operating pipe lines in transporting oil, a part of which was produced by each of them, were also buyers of crude oil in the fields from the independent producers thereof, who, since none of said companies transported oil other than that produced by themselves or such as they acquired by purchase, had no efficient means of shipping their oil to market, and hence contracted to