the facts in a particular case. A shipper comes to the Chicago, Burlington & Quincy Railroad Company with a load of cattle in his crate, and says: "I want this crate load of cattle sent to Council Bluffs. I want the crate delivered to the Burton Company here again at Chicago, and you must pay that company a rental of so much a mile for each mile, out and back, that the crate is carried." Or he comes with the crate empty, and says: "I want this crate sent to Council Bluffs, where I will load it with cattle, and send it back to Chicago; You cancollect from me the usual freight on a crate of cattle from Council Bluffs to Chicago; and you must pay to the Burton Company a rental for each mile, out and back, that the crate is carried." We answer: "We have crates enough of our own. We do not want your crate, and can neither afford to pay you for the use of it, nor carry it both ways for one freight." He answers: 66 You take the crates of the Lake Shore Railroad Company over your road, and pay them a rental for their use. We answer: We do, when we need crates in our business, but we prefer their crates to yours. They are better suited to our business, will carry more than one kind of goods, and yours will not; and so we can get freight on the loads in the crates both ways." It should be kept clearly in mind that the railroad company gets payment for hauling the freight in the car, not for hauling the car. On the contrary, it is claimed that it should pay the owner for the use of the car. No matter how you put it, it gets back to the simple demand: "You must haul our car (or use our crate) whenever asked to do so. You must not charge the owner of the freight in such car (or crate) any higher rate than you charge the owner of freight in any other car (or crate); and you must pay us for the use of the car (or crate)." It is therefore, respectfully submitted that it all turns on the question: Is a railroad company bound to accept, use and pay for all cars and other instrumentalities of railroad traffic offered to it? they must equally have it as to locomotives, terminal facilities, road bed, brakes, couplers, grease, fuel, and every detail of railroad property and management, and the act would amount to the appointment of a commission to run and manage all the railroads in the United States which do an interstate business, the taking, the spending of the company's money, and the management of its property, out of the hands of the company. Congress has made no attempt to grant such an authority to the Commission, and it may well be doubted whether it could do so. The next question is: Has not Congress, by the terms of the Act, specifically limited the power of this Commission, so that it cannot give to the cars of others the use of the track of any railroad company, and has no power to make any order in regard to the same? It is respectfully submitted that it has. By the last clause of the third section of the Act it is provided "That this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." It was suggested that the Burton Stock Car Company did not come under the terms of this clause, as it was not a "common carrier." As was also suggested before the Commission, this is true, so long as the Burton Company confines its business to the manufacture and selling or leasing of cars; but when it comes to a railroad with its cars loaded or unloaded, and requests that they be carried over such railroad -not as so much freight to be carried-but as a car or vehicle for the transportation of freight over such road, it comes as a common carrier, within the meaning of this section, just as much as a railroad company would which had hired the cars from the Burton Company. How can it be held otherwise? Take an example: the Lake Shore Company buys ten stock cars from the Burton Company. A train comes over the Lake Shore Road made up of the ten cars of the Burton patent belonging to the Lake Shore Company, and ten cars of the Burton patent belonging to the Burton Company, all twenty cars being loaded with cattle. If a railroad hires crates for the transporta- The Commission clearly cannot order that the tion of pigs, fruits, or baggage from A, and Chicago, Burlington & Quincy Railroad Compays him by way of milage, must it also take pany accept and run over its line the ten cars B's and pay him a milage? And if not crates belonging to the Lake Shore Road. Can they for those purposes, why crates or cars for oth-order the Chicago, Burlington & Quincy to er purposes? It should be kept in mind that the additional charge in the tariff is put on instead of making a charge for hauling the empty cars. If the cars are offered to us as so much freight to be carried, we certainly have a right to make a reasonable charge. take and run over its line the ten cars belonging to the Burton Company? A mere statement of the proposition is sufficient to show that it is untenable. The fourth question is: Assuming that the Commission has full power to make the order asked for, could it properly do so, having due The second question is: Has Congress grant-regard to the whole question? It must be kept ed, or attempted to grant, by the Interstate Commerce Act, to this Commission, any power to consider or decide upon the quality or fitness of the equipment of railroad companies? It is respectfully submitted that the only powers of this honorable Commission are those specially granted by this Act, and that the Act must be strictly construed. The Act contains no reference to or suggestion of any power in the Commission to consider or decide upon the quality or fitness of the equipment of railroad companies. If they have it in regard to cars, in mind that a railroad, considered as a machine for transportation purposes, is a great and delicate machine, requiring the most careful and exact management, in order to do its business in such a way as to satisfy its patrons, and do the business successfully, safely, and profitably; that any interference which will take the management in any of its details out of the hands of the men trained and appointed for that purpose will have a tendency to make the whole machine go wrong; that an order that railroad companies must accept, run, and Q. State whether the tendency is not to increase the length of stock cars lately. A. It is, up to thirty-four feet. It used to be twenty-eight. pay for all cars mechanically correct and prop- | fully long enough. It was stated that Mr. erly constructed, might and would have a Stone said that the length of the car was twentendency to so interfere with the management ty-eight feet, and next that it was thirty feet, as to prevent the safe, prompt, proper, and and that was the standard, and they do not profitable doing of the business railroad com- want any on their road longer than thirty feet. panies are called upon to do. It would inter- Mr. Stone made no such statements. His fere with the proper discharge of their duties statement in answer to questions on cross exto the public, by requiring the company to amination, was as follows: haul over its road trains of empty cars which | could not be used for the transportation of other freight, and so using up its motive power, and leaving the companies without proper cars at proper places to attend to its necessary traffic, and in a thousand ways taking out of their hands the management of their own business. If, on the other hand, it is ordered that cars of a certain kind and pattern be taken when offered, it should be borne in mind that the car is only a part of the whole great machine; that the car is no more an essential part the safe, speedy, and proper transportation of merchandise or cattle, than the locomotives, signals, road bed, rails, interlocking switches, and many other things used in connection with a railroad; and the Commission must, if it undertakes to determine upon the value or propriety of using a car, also determine upon the value of all other portions of the great machine called a railroad. In fact, if the Commission can and should order either that all cars offered, or that cars of any particular kind or kinds should be taken, it would work greatly to the injury of both the public and the railroads, and railroads could no more be run on satisfactory bases under such an order than a cotton mill could, were it required to take portions of its machinery for manufacturing from anyone who had, or thought he had, or whom a commission thought had, a piece of machinery fitted for such manufacturing. The fifth question is: Has the complainant proved any discrimination? The evidence of fered showed the following facts: That railroad companies receive from other companies, and pay milage for, such cars, freight, cattle, oil, refrigerator, coal, etc., as they need in the transaction of their own business, and such cars only; that when they have cars of their own ready for use, they tránship from cars of others into their own cars, unless the expense of such transhipment is greater than the expense of taking cars of such other person or company; that they never take cars simply on the demand or request of others, but simply when it is to their own advantage, and then under special agreement; that refrigerator, coal, and other special classes of cars are taken from others only when the company has not enough of the same to do their business; that the companies complained of were abundantly supplied with cars to do their cattle business. Further, the evidence showed that the cars of the complainant were of such construction that they could not be loaded with lumber or steel rails; that the compartments in the Burton car were only sixteen feet long, and that what is called sixteen foot lumber is generally a little over that; that, moreover, the doors of the Burton cars were in the side, so that it would practically be impossible to put the lumber in, even if the compartment was Q. The needs of commerce and the comfort of the stock have, I suppose, called for that? A. No sir; two things called for it: the first to make cars more available for general use. The twenty-eight and thirty foot cars were both too short to take in two lengths of sixteen foot lumber, and too short to take in thirty foot steel rails, and in order to get the benefit of return loads of lumber and rails, there were strong reasons for making the car thirty-four feet long, so that it would take two lengths of sixteen foot lumber without going above the 40,000 pounds capacity of the car. Otherwise it was impossible to load it full with lumber and rails. The evidence further was that a very small percentage of cattle were carried west, and that a very small percentage of these cars could consequently be carried west loaded, but must be taken empty; that, so far as the Chicago, Burlington & Quincy Railroad Company is concerned the western freight consisted mainly of lumber and steel rails, with a good many railroad ties; that of the whole milage on the Chicago, Burlington & Quincy Railroad, 80 per cent of cars went loaded, and 20 per cent empty, and that of the west bound cars probably 70 to 75 per cent went loaded. Now, taking a case on the Chicago, Burlington & Quincy Railroad; do the facts show discrimination in any form on the present ratio? A Burton car is wanted at Council Bluffs, 500 miles from Chicago, for a load of cattle. The car is procured in Chicago and hauled to Council Bluffs empty, the company receiving no pay for such hauling. It is hauled back loaded, and the shipper is charged the tax rate $70 plus 20 per cent additional, making $84, which the Chicago, Burlington & Quincy Railroad Company receives for having hauled the car 1,000 miles-500 empty, 500 loaded. A Lake Shore Railroad car is hauled from Chicago to Council Bluffs. The rate for that haul on a load of lumber or steel rails is about $40, but as, say only, 70 per cent of the cars go west loaded, we get an average of $28 per car. That car is loaded back with cattle, and we get the tariff rate, $70, making for our total trip $98. Out of this the Chicago, Burlington & Quincy Railroad Company pays the Lake Shore Company milage of three fourths of a cent per mile, or, on 1,000 miles. $7.50, leaving net to the Chicago, Burlington & Quincy Railroad Company, $90.50, or $6.50 more than we get on the Burton car. If, on the contrary, we haul the car, paying the milage and charging the freight which the complainant requests, we should receive $70, and should pay out for milage $7.50, leaving net on the haul $62.50, against about $90 on the common car. But it is submitted that the tariff rate is not extortionate nor in any sense a discrimination, but is made with the intent of being and is fair and reasonable, and not more than is charged to other persons for doing a like service in transportation, under substantially similar circumstances and conditions; and it is further submitted as a restatement, that: 1, a railroad company is not, in law, bound to use upon its line the cars of another person or company, and pay rent for the same; and that the fact that it does so hire from one or more persons or companies in no way obligates it to hire from others; 2, that under the Interstate Commerce Act, your honorable Commission is in no way authorized to consider or determine upon the quality or fitness of the equipment of railroads; 3, that by and under said Act, your honorable Commission is specifically restricted from ordering that a railroad company give to any common carrier or to this complainant the use of its tracks; 4, that even if full power existed, it would be very unwise and very injurious to the people, as well as to the railroads, to make the order asked for; 5, that on the evidence given, the rate charged to the Burton Stock Car Company and shippers, by its cars, is reasonable and not extortionate, and in no sense a discrimination under the Interstate Act. In regard to the Chicago, Burlington & Northern Railroad Company, it may be pointed out that no particular case was made, that no evidence was offered that the Burton Company had ever applied to that company to haul any of its cars, loaded or empty; but this point we do not press, as this Company is a party to the classification; and the real question is the general one, as to whether any such order as is asked can or should be made. Messrs. Samuel Shellabarger, John S. Blair, and John F. Dillon, for the Union Pacific and Missouri Pacific Railway Companies, respondents: The exact point and substance of the petition of complainant in this case is that the complainant is the owner of certain cars suited to the transportation of cattle and live stock over railroads; that such cars are better adapted for such transportation than the ordinary cars, and their use is sought for and desired by the public; that they are lighter and of easier haul than the ordinary cattle cars; and 100 or more railroad companies allow them to be put upon their lines for said transportation purposes on the usual terms, under which railroads receive and allow three fourths of a cent per mile to the owner of the car, but that the defendant, The Union Pacific, and other companies, have refused to accept the cars of complainant, except upon payment of extortionate terms, unjust to complainant and detrimental to the public. And the petition expressly relies upon sections 1, 2, and 3 of the Interstate Commerce Act as the ones containing the provisions which defendant is alleged to have violated. The substance of the provisions bearing on this alleged unjust demand and refusal found in these sections are as follows: 1. Section 1 requires charges, by common carriers subject to the Act, to be "reasonable and just," and declares unlawful all which are "unjust and unreasonable." 3. Section 3 declares it unlawful for the carrier to give "undue or unreasonable preference or advantage to any particular person", etc.. "or locality," "or any particular description of traffic," "or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." " Section 3 further requires all such carriers, according to their respective powers," to "afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate, in their rates and charges, between: such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracts or terminal facilities to another carrier engaged in like business." The exact legal question presented by the present issue and considered in the light of the facts, either conceded or which may be admitted for the sake of the legal point, may be condensed thus: Do the provisions of the Interstate Commerce Act in sections 1, 2, and 3, or the principles of the common law, oblige these companies to accept from the complainant corporation, a private car manufacturing company and not a common carrier, its manufactures in the shape of cars, and to transport the same over their lines as rolling stock (as distinguished from freight) upon any terms whatever? Points in reply to this question: We insist that the answer to this question must be in the negative for the following reasons: I. The strongest possible view in favor of complainant's contention is that which presents the claim in this light, to wit: that its cars are received on other railroads as part of their trains, and which cars, in process of transportation from State to State, reach connections with the Union Pacific, or some other defendant company, and there demand that complainant's cars shall be received by such company on its line as part of its trains, the same as other cars of like kind are received. Under this state of facts and conditions of making the demand it is claimed that the position of the complainant is different from that of a manufacturer making cars and taking them to a railroad company and demanding their adoption as part of the lines of the defendant, in this: that in the latter case complainant's car has become, and is, at the time of the demand, a part of the actual interstate commerce of the country, owing to its coming to the defendant's line in the shape of being part of a train of interstate commerce; and, being thus embodied in such interstate commerce, it cannot be discriminated against. As already remarked, there is no possible view in favor of the contention of complainant. INTERSTATE COMMERCE REPORTS-THE COMMISSION. stronger than the one just stated; and this con- This is so because the concluding paragraph After having made this provision command. ing reasonable facilities for interchange of traffic between connecting lines, and after prohibiting discriminations in rates and charges between such connecting lines, an express limitation is put upon the character and extent of the rule defining these facilities and interchanges by the controlling words which conclude the section and which are: JULY, evident, yet the supreme court has had repeated as other railroad companies, and, like them, 32 (85 U. S. bk. 21, L. ed. 792), the court is In Union Pac. R. R. Co. v. Peniston, 18 Wall. ing that the Union Pacific has certain agencies still more emphatic on this point. After statto perform under the laws of its creation, on behalf of the government, the court adds these words regarding the nature of the property rights of the Union Pacific. 66 graph lines are neither in whole nor in part, 'Notwithstanding this the railroad and telethe property of the government. The ownership is in the complainants, a private corporation, though existing for the performance of public duties. The government owns none of its stocks," etc. III. This brings us, then to the question: 'But this shall not be construed as requir-principles of law upon connecting common What obligations are imposed by the general ing any such common carrier to give the use of its track or terminal facilities to another carrier engaged in like business." Thus the Statute itself makes it plain and literal, to a demonstration, that no carrier is required "to give the use of its track or terminal facilities to another carrier engaged in like business." In other words, this clause protects all connecting lines in their right to use their own cars for the purposes of transportation. Of course this right to use its own cars is subject to all the provisions and conditions of the common law and of the statutes requiring the car. rier to furnish reasonable facilities for all descriptions of transportation of persons and property. Subject to that general obligation every carrier is, by the last clause of section 3, left in the absolute possession of the right to furnish its own cars for its own lines. The effect of this provision is to leave all carriers subject to this Law at liberty to make contracts regarding what cars from other lines shall be transported over their lines. Because of the unmistakable character of this last clause of section 3 it would be useless to analyze other provisions of this statute bearing on this point, because, since this closing provision of section 3 cannot be misunderstood, it limits, according to its plain words, and qualifies every other provision in the Law, were there any, favoring the contention of complainant; II. Owing to the vital importance of this matter, it is proper, however, to present other considerations leading to the same result. One of these considerations may be stated thus: These companies, although owing certain duties to the public, are, strictly and to all intents and purposes, private corporations, and as such possess the same dominion over their own property as other like private corporations. carriers touching the matter of receiving the cars of other people upon their lines? lines of this country, generally, including the The question here is not whether the railroad Union Pacific and Missouri Pacific, are regarded by the Law as public highways in the sense that they should be open to the trains of right in the respective roads to exclude such other connecting railroads, and there was no other trains from their lines. complainant is not to be permitted, by its own This is so because the demand here of the locomotives, to run its cars over our lines. This demand is, in law, radically different from that. Its demand is that we shall take upon our lines and transport with our own locomotives the cars of other lines, leaving our own cars idle. We are, therefore, here not troubled with the right of other companies to occupy our this question (were there any question) as to lines with their trains and locomotives. whether, on general principles, there is an ob- in paragraph III, is explicitly and unmistak- The syllabus of those cases is an excellent usage or by the common law to transport the "Railroad companies are not obliged, either by the common law or by usage, to do more as express carriers than to provide the public at large with reasonable express accommodations; and they need not, in the absence of a statute, furnish to all independent express companies equal facilities for doing an express business upon their passenger trains." It will be observed in this case, foot of page 6 (795), that the demand made against the railroad companies was that, in the absence of contracts, the defendant railroads should be decreed by the courts to "transport at all times the express matter, safes, and messengers of the said Southern Express Company by the same trains and with the same accomodations thereon and its depots and stations as it may transport its own express matter or as it may accord to itself." This was the pith of the contention and the one repudiated by the court. In that case the court, on page 20 (800), says: "The controversy in each case is not with the public, but with a single express company. And the real question is not whether the railroad companies are authorized by law to do an express business themselves, nor whether they must carry express matter for the public on their passenger trains in the immediate charge of some person specially appointed for that purpose, nor whether they shall carry express freights for express companies as they carry like freights for the general public, but whether it is their duty to furnish the Adams Company or the Southern Company, facilities for doing an express business upon their roads, the same in all respects as those they provide for them selves or afford to any other express company." On page 21 (800), the court, in repudiating the contention of the express companies, says: "It is neither averred in the bill nor shown by the testimony that any railroad company in the United States has ever held itself out as a common carrier of express companies-that is to say, as a common carrier of common carriers. Again the court says, page 24 (801): "So long as the public are served to their reasonable satisfaction it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual, when it affords the public all reasonable express accommodations. If this is done, the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. public require the carriage, but the company may choose its own appropriate means of carriage, always provided they are such as to insure reasonable promptness and security." On page 26 (802): The "The exact question, then, is whether these express companies can now demand as a right what they have heretofore had only as by permission. That depends, as is conceded, on whether all railroad companies are now by law charged with the duty of carrying all express companies in the way that express carriers, when taken, are usually carried, just as they are with the duty of carrying all passengers and freights when offered in the way that passengers and freights are carried. The contracts which these companies once had are now out of the way, and the companies at this time possess no other right than such as belong to any other company or person wishing to do an express business upon these roads. If they are entitled to the relief they ask, it is because it is the duty of the railroad companies to furnish express facilities to all alike who demand them." Such is the body and effect of this decision, and it is, we submit in legal principle, conclusive against the demand of the complainant in this case, that we shall be obliged to receive in the shapes in which complainant may choose to bring the same to us its lines of cars upon our lines. To the same point is the case in 115 U. S. 587 (499), where the Pullman Palace Car Company asserted an obligation on the part of the Missouri Pacific Railway Company to haul the cars of the Pullman Company because of the nature of the business in which the latter company was engaged, which consisted "of hiring or otherwise arranging with railway companies to use its cars" under written contracts for a term of years. The court says, page 597 (502): "It may be, as is also alleged, that it has become indispensable in the conduct of the business of a railroad company to run on passenger trains sleeping and drawing room cars, with the conveniences usually afforded by such cars for night travel;' but it by no means follows that the railway is in law obliged to arrange with the Pullman Company for such accommodations. According to the bill itself, two such car companies cannot successfully carry on a competing business on the same road; and the custom has been for the Pullman Company, if possible, to contract for the exclusive right. The business is always done under special written contracts. These contracts must necessarily vary, according to the special circumstances of each particular case. Certainly, it cannot be claimed that a court of chancery is competent to require these companies to enter into such a contract for the furnishing and hauling of Pullman cars, as the court may deem reasonable. A mere statement of the proposition is sufficient to show that it is untenable." In the Atchison etc. R. R. Co. v. Denver etc. R. R. Co. 110 U. S. 667 (Bk. 28, L. ed. 291), the sections (4 and 6 of article 15) of the Constitution of Colorado, under consideration, were as follows: "Sec. 4. All railroads shall be public highways and all railroad companies shall be common carriers. Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any designated points within this State, and connect at the state line with railroads of other States or Territories. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad. "Sec. 6. All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this State, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freight or passengers within this State, and no railroad company, nor any lessee, manager, or employee thereof, shall give any preference to individu |