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als, associations, or corporations in furnishing | company to transport cars of others, or when cars or motive power.' such intent is clearly manifest from the terms. of the statute or charter, they are under such obligation.

The claim on the part of the Denver & New Orleans Company was that the right to connect the roads included the right of business intercourse between the two companies, such as is customary on roads forming a continuous line, and that if the companies fail or refuse to agree upon the terms of their intercourse, a court of equity may, in the absence of statutory regula-mals and other things conveyed by any railtions, determine what the terms shall be. way company or canal company, but also carThe court said, per Waite, Chief Justice, page riages, wagons, trunks, boats, and vehicles of 679 (296): every description adapted for running or passing on the railway or canal of any such company.'

"The word traffic shall include not only passengers and their luggage and goods, ani

"To our minds it is clear that the constitutional right in Colorado to connect railroad with railroad does not itself imply the right of connecting business with business. The railroad companies are not to be connected, but their roads. A connection of roads may make a connection in business convenient and desirable, but the one does not necessarily carry with it the other. The language of the Constitution is that railroads may intersect, connect with, or cross' each other. This clearly applies to the road as a physical structure; not to the corporation or its business "

Again, p. 680-681 (296): "He certainly may select his own agencies and his own associates for doing his own work. "The Atchison, Topeka and Santa Fé Company, as the lessee of the Pueblo and Arkansas Valley Railroad, has the statutory right to establish its own stations and to regulate the time and manner in which it will carry persons and property, and the price to be paid therefor."

Smith, J., in Wager v. Troy Union Railroad Company, 25 N. Y. 526 (A. D. 1862), says:

"The railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in the soil, and thus appropriates a portion of the street to its exclusive use and for its particular mode of conveyance. In the one case all persons may travel on the street or highway in their own common modes of conveyance; in the other no one can travel on or over the rails laid down, except the railroad company and with their cars specially adapted to the tracks."

We therefore start in the general discussion with the fact fixed in the case that these com panies stand, in regard to their right of dominion over their property, as every other private corporation does.

V. In the absence of statutory requirements the railroad companies have a right to buy or hire locomotives, cars, and all agencies of transportation when and where they please. Their obligations as common carriers, and such obligations as are imposed upon them by the Interstate Commerce Act, are quite distinct from their duties as owners of the track and locomotives; and if they see fit to use on their own lines the cars of other persons, whether common carriers or stock car companies, they have the right to make their own selections and by agreement to fix their own

terms.

As is fully pointed out by Bradley, J., in Lake Superior etc. R. R. Co. v. United States 93 U. S. 442 (Bk. 23, L. ed. 967), it is only when the charter or statute expressly requires a railway

The legislation in Great Britain has, since 1854 (17 and 18 Vict. chap 31), been explicit on the subject. Section 1 of that Act reads:

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And the same definition is found in "The Regulation of Railways Act, 1873" (36 and 37 Vict. chap 48). That Congress had these statutes before it during the consideration of the Act of February 4, 1887, is manifest when it is observed that section 3 is almost identical in language with section 3 of 17 and 18 Vict. chap. 31.

See Harper, Law of Interstate Commerce, pp. 66, 96, 194.

Drawing thus from the English Statutes, it would be singular for Congress to omit the definition we have quoted if it had in contemplation, while regulating commerce between the States, the enforced use by the railroad companies of cars or equipment belonging to others. The words "all instrumentalities of shipment or carriage" in the first section of the Act of February 4, 1887, are substantially the same, but they are not given as included within the word "property," in the transportation of which the carriers are engaged.

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VI. That it would be absolutely impracti cable for a railroad company to keep up a proper equipment and supply the public demand for transportation if bound to accept the cars of others without a correlative obligation to furnish them when needed, and a right to inquire whether others will have them in readiness has been abundantly shown by the testimony, to which we will not refer in detail.

VII. One of the vital positions of the defendants is based on the proposition that the entire history of railroads throughout the

world has established it as one of the axioms of railroad administration that each railroad company or system which becomes a unit or single autonomy, responsible as a common carrier for the management of the affairs of the company or system, must be indeed a unit or one controlling mind in such administration and management, and that if outsiders are allowed to dictate in matters affecting the actual running of the vast, complexed, and dangerous machinery of these systems, then ruin must be the result.

This proposition is expressly admitted in the argument for the Burton Car Company; and the reply made to it is, in effect, that what this complainant demands is, in no degree, an attempt to force on railroad managements anything that conflicts with their complete dominion over the running of their own respective trains, etc., and is, on the contrary, simply a demand that they shall accept the Burton trains or cars and shall put them into their own trains there, however left, wholly under their own management.

Such is the exact substance of Mr. Burton's | three fourths of a cent per mile. The evidence reply; but the reply is unsound for many and obvious reasons:

shows that prior to the adoption of the present classification the companies charged the same 1. The cases above cited, especially "The price for a loaded Burton car as for a common Express Case," establish that it is, by law, car, lengths being equal, and then charged made to be a part of the autonomy and right (circ.) five cents a mile for the return of the car. of self government of every such railroad com- Now, as in the movements of traffic a number pany to make choice as to how and by what of cars must be returned one way or the other instrumentalities and appliances it shall per-empty; it would seem clear, even if we are form the duties which it owes to the public as bound to accept and transport private cars, a common carrier, and that when its duty to that we are not bound to hunt up return the general public is reasonably satisfied as to freight for them, and if, when their loads are any class of transportation then no individual discharged at the destination, they do not wish has any right to dictate to the carrier as to to load them and if, also, we have empty cars how or in what "safes" or by what other in- owned by us or hired by us under contract, it strumentality the cafriers shall discharge that would be no undue discrimination to load our duty. own cars, return theirs empty, and charge for 2. If Mr. Burton has the right to dictate to the cost of transportation. It has been shown the carrier that he shall transport cattle in Mr. that the ordinary cattle car weighs about Burton's cars and he shall leave his own idle, 20,000 pounds and the load about the same. then, so has every other one of the vast public The rate from Omaha to Chicago on the Chithe same right to dictate as to every other con-cago, Burlington & Quincy for a car loaded with ceivable instrumentality of railroad transpor- cattle is $70, and the return trip of the empty tation which he may conceive to be a better car is certainly worth 50 per cent more, makthing than that in use, and there can be no ing $105 as a fair and reasonable charge for the limit to this right of forcing on the carrier round trip of a Burton car. What they had whatever the discretion of the Commission been charged under the old classification was may deem a better tool for making the trans $70 for outward trip and 56-100 of a cent per portation than the one in use. ton per mile (the actual cost of movement) on the return, which for a 20,000 pound car from Omaha to Chicago (500 miles) is $28 or $98 in toto. The present rates for the Burton thirty foot car, loaded, from Omaha to Chicago and return is $70+20 per cent, making $84. Now, if we add to this the other element of alleged discrimination, to wit: the price which by agreement the Chicago, Burlington and Quincy Company (inter alia) pay to other companies for the use of cars, we have $7.50 for the car-round trip and the total of $91.50, the net receipt by the Chicago, Burlington & Quincy Company as against the $105 which we have shown to be a reasonable and just charge.

That such an outside control over the instruments of transportation is an end of all railroad administration is simply self evident. Among others it would have the following effects:

It would deprive the carrier of the right to decide whether the tendered car or other thing was safe or fit to be run in his train, and yet leave such carrier responsible for all the consequences of its being unfit.

It would either reduce to idleness the rier's own machinery or render it impossible to determine how much machinery he must supply for the public use.

All railroad managements are obliged to and do carry on their trains, duplicates of each part of their machinery liable to break, and thus repairs are instantly made, all of which would be impossible if the carrier is obliged to accept and to make part of his trains the alien car of every comer who may think his a better one.

These illustrations might be indefinitely multiplied, but need not be, the truth being that the position of the complainant is inconsistent with railroad administration.

VIII. Was the charge a reasonable one? The evidence shows that neither the Burton Car Company nor the shippers of live stock therein have suffered from any unjust or unreasonable charge, and that they have not been unreasonably discriminated against.

The test presented by the complainant is, on the one hand, the rate charged to shippers of live stock on the ordinary cars and the price paid (by convention) by one railway company, when its necessities require it to use the cars of another railway company. Blending these two separate and distinct items he compares the result with the fact that respondents charge shippers on the Burton stock cars 20 per cent more than shippers on the ordinary cars, and refuse to the Burton Stock Car Company the milage paid to other railway companies of

The evidence before the Commissioners demonstrated that, on account of the dimensions of the compartments on the Burton stock car and the immovability of its cribs, etc., it was unadapted to the kinds of freight relied upon for return trips, and therefore must be returned empty. But above and beyond this fact we assert with confidence that even if we are bound to take and transport cars furnished to us by private parties, our duty ends with the delivery of the car at its destination or to another company, and that the railroads, if called upon to hold the car for a return load, are entitled to charge therefor, and are not bound to divide the traffic which comes to it in such a way as to fill or partially fill complainant's car; and that a charge for the return trip is legitimate and proper unless complainant tenders to us, loaded on its car, freight to its working capacity.

Messrs. Burton Hanson and John W. Cary, for the Chicago, Milwaukee, & St. Paul R. Co., respondent:

I. There was no case made against the respondent on the hearing. The only testimony offered was a letter written by B. H. Langley, respondent's division freight agent, under date of April 30, to Mr. Hadlock, the Chicago manager of the complainant, which stated the rates for the shipment of live stock transported in

special or palace live stock cars. The rate
given was the same as that mentioned in the
western classification under date of April 1,
1887. Mr. Burton testified that he did not
know, of his own personal knowledge, of
any transaction of the Burton Stock Car Com-
pany with the Chicago, Milwaukee & St. Paul
Railway Company between April 5, and May
6, 1887, other than this letter. So far as the
testimony shows no car of the Burton Stock
Car Company was offered to the respondent for
transportation betweeen those dates. Section
13 of the Interstate Commerce Act provides
that when any person or corporation shall com-
plain against any common carrier, they may
apply to the Commission by petition which
shall briefly state the facts. Rule 8 of the rules
of practice adopted by this Commission pro-
vides that the petitioner or complainant must,
in all cases, prove the existence of the facts al-plained against is not bound in the law to re-
leged, to constitute a violation of the Act, un-ceive and carry. The words "traffic" and
less the carrier complained of shall admit the "property" mentioned in the Interstate Com-
same, or shall fail to answer the complaint. merce Law mean such property and such traf-
fic as the carrier is bound, in the law, to re-
ceive and carry; and it is only when a discrim-
ination is made against such property and
such traffic that this Commission has the right
to interfere. It is therefore respectfully sub-
mitted that this Commission has no power to
make an order prescribing the terms upon
which the respondent shall receive and trans-
port the Burton stock car when loaded with
live stock or any other property over its lines
of road.

By looking at the petition filed herein, the Commissioners will see that it contains no specific statement or allegation of facts which show, or tend to show, any breach of duty on the part of the respondent. Neither is there any testimony in the record which shows that the respondent in any way discriminated against the complainant between the 5th day of April and the 6th day of May, 1887. It is therefore submitted that the complaint herein should be dismissed, so far as the Chicago, Milwaukee & St. Paul Railway is concerned.

transport the same over respondent's line of
railway for the purpose of delivering them to
the buyer or lessee, then the respondent would
be bound to receive them as freight and trans-
port them to destination upon the same terms
and conditions as it would receive other freight
of a like character. Railway companies are
only common carriers of rolling stock such as
freight cars, passenger cars and locomotives,
belonging to other companies, when the same
is presented to them to be transported as
freight to some point of delivery where they
are to be put into use as rolling stock. When
so received and transported they are received
and transported as freight. I have said this
much for the purpose of showing that there
can be no discrimination when the article
against which it is claimed discrimination is
directed is such that the carrier which is com-

II. The Chicago, Milwaukee & St. Paul Railway Company is not a common carrier and bas never held itself out to be a common carrier of cars owned by various persons and corporations, when such cars are loaded with either persons or property. I mean this: If the Wagner Sleeping Car Company should present one of its cars filled with passengers to the Chicago, Milwaukee & St. Paul Railway Company at Chicago, Ill., for transportation to St. Paul, Minn., it, as a common carrier, would not be bound to receive and transport it. "A common or public carrier is one who undertakes as a business for hire or reward to carry from one place to another, goods for all persons who may apply for such carriage, provided the goods be of a kind which he professes to car ry." While the respondent professes to carry live stock, it does not hold itself out as undertaking generally to carry such freight in any cars other than its own. It professes to and does furnish cars of its own for the carriage of live stock and other classes of traffic; but it does not profess or undertake to haul the cars of other persons or corporations which may be offered to it, when such cars are loaded with freight. It can be compelled to receive and carry the freight, but it has the right to reject the cars.

The Burton Stock Car Company is not a common carrier. There is no proof that it is a common carrier. Its articles of incorporation were not introduced in evidence, and nothing appears showing its powers, its rights or its duties. It is safe, therefore, to assume that it is nothing more than the manufacturer and lessor of a patented stock car. If it sells or leases any cars, and it becomes necessary to

III. General Butler attempted to show that the Burton stock car was a great improvement upon the ordinary cattle car, in respect to the convenience, accommodation and comfort of live stock. Admitting that the claims which were made in behalf of the Burton Stock Car Company in this respect are true, is this a matter with which this Commission has a right to deal? The law compels a common carrier to furnish adequate and proper facilities for doing the business which it professes and undertakes to perform. It requires common carriers of live stock to furnish proper cars for receiving, handling and transporting it. If it fails in this, the party injured has a complete remedy in the law. This Commission was not organized and has not the power to interfere in this respect, and say that certain cars are not proper and that certain cars are proper for the carriage of live stock.

If, therefore, the carrier furnishes proper cars, and when the transportation covers a longer period than twenty-four hours, it unloads, feeds and waters the stock as required by the Act of Congress, it has performed its full duty, and nothing more can be required of it. Certain it is, the law does not compel railway companies to adopt the Burton stock car or any other palace stock car for the transportation of live stock. This being true, Why should this respondent be compelled to receive the Burton stock car upon its lines of road for the transportation of live stock? It has sufficient stock cars of its own for the proper conduct of its business. This the Commission is bound to assume, because it will be presumed that the respondent has been and is still performing its duty to the public in this respect, viz: of furnishing sufficient cars to do the

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business which it professes and undertakes to do. The discrimination claimed is that the respondent receives cars of other railway companies, transports them over its lines of road and pays three quarters of one cent per mile for the milage made, whether loaded or empty, and that it refuses to allow any mileage for the Burton stock car, and, in addition, charges an excess of the tariff rates for live stock transported in the Burton stock car. The reasons for this discrimination, if it may be called such, were fully explained upon the hearing, and it is unnecessary for me to restate them at this time. Your Honors will remember the testimony showed, and it was not disputed, that when one railway company receives the cars of another railway company, it is done entirely with the consent of the receiving company. That is, the Union Pacific Company, connecting with the respondent at Council Bluffs, cannot compel the respondent to receive its cars, although they are loaded with freight consigned to Chicago. Whether the cars will be received or not is left entirely to the discretion of the receiving company. If it does receive them, it pays three fourths of one cent per mile as milage. This compensation is entirely a matter of agreement between the various railway companies.

or carriage." Under such circumstances, these cars sustain the same relation to the connecting line as do the cars owned by the company which has so received the Burton stock car upon its road. To illustrate: supposing the Union Pacific Railway Company chooses to receive the cars belonging to the Burton Stock Car Company. At Cheyenne, Wyoming, it makes up a train of cars composed partly of its own cars and partly of cars belonging to the Burton Stock Car Company, and loads the same with live stock consigned to Chicago, Ill., over the Chicago, Milwaukee & St. Paul Railway. What I contend is that the Union Pacific Railway Company is in no better position, under the Law, to compel the Chicago, Milwaukee & St. Paul Railway Company to receive the Burton stock car, than it is with respect to its own cars, and that the Burton Stock Car Company is in no better position, under the Law, to compel the Chicago, Milwaukee & St. Paul Railway Company to receive its cars and transport them to Chicago than is the Union Pacific Railway Company.

True, as claimed by General Butler, many of the cars which one railway company receives from a connecting line are hauled many miles empty, and that, notwithstanding this, the regular milage is paid; but Your Honors must bear in mind that, at the same time, the connecting line has cars of the other line which it is hauling empty and for which it is likewise paying the regular milage. Herein it will be seen each company as to which this arrangement exists stands on an equal footing. Each has something to give to the other for what it receives from the other. This is not true in respect to the Burton Stock Car Company. What has it to give in return for milage when its cars are being hauled empty? The proof shows that, as a general rule, its cars are hauled empty one way.

Under the last clause of section 3 of the Interstate Commerce Law, the Union Pacific Railway Company could not lawfully require the Chicago, Milwaukee & St. Paul Railway Company to receive its cars at Council Bluffs and transport them to Chicago. Section 3, after providing that every common carrier shall afford all reasonable 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, says: "But this shall not be construed as requiring any such common carrier to give the use of its track or terminal facilities to another carrier engaged in like business." This clause, coming in close connection with that part of the Statute which forbids discrimination, there can be no doubt of its true meaning. It means just what it says, viz.: "That no railway company shall be reThe fact that this respondent, the Chicago, quired to give the use of its track or terminal Milwaukee & St. Paul Railway Company, has facilities to another carrier." This is as it should sufficient and adequate equipment of its own be. A railway company, having incurred the for the safe and proper transportation of live expense of purchasing right of way, constructstock, as well as of all other classes of freight, ing its road, and fully equipping it, as it is in is a complete and satisfactory answer to every the law bound to do, ought not to be compelled claim that is made against it in this proceed to give the use of its road to any other person, ing. If the Commission should make the or- corporation or carrier engaged in a like busider asked for by the Burton Stock Car Com-ness. To hold otherwise means the displacepany, it would mean, if followed out to its ment and disuse of the very property and legitimate conclusion, the displacement of as facilities which, in the law, a railway compamany cars of the Chicago, Milwaukee & St. ny, when it engages in the business of transPaul Railway Company as the Burton Stock porting persons and property, is bound to Car Company or any other company should provide. It means also, that any person or see fit in the future to offer to it. This would corporation that chooses to manufacture cars entail not only a loss of property, but a loss which are more or less equipped with improveof profits to the respondent. ments that are patented, whether freight or passenger, can properly insist that they be received by railway companies as part of their equipment, and transported over their various lines of railway, the same as their own cars are carried, whenever any person shall desire to ship his property in some one or more of such improved cars. So long as a railway company furnishes a car that is proper for the transportation of the particular kind of freight offered

IV. While I contend that the Burton Stock Car Company is not a common carrier, and cannot be considered as such in this proceeding, yet, when these cars are received by a railway company and are loaded with live stock or other freight, and are placed in a train of cars, they become part and parcel of the train, and, in the language of the Interstate Commerce Law, are instrumentalities of shipment

to it, the shipper cannot rightfully object or demand that some other or particular kind of a car be furnished. That is, the shipper cannot designate the particular kind of a car in which his freight shall be carried, any more than a person offering himself as a passenger can rightfully demand to be carried in a parlor car, instead of the ordinary passenger coach. But it is unnecessary to discuss this feature of the claim made by General Butler, as no complaints have been made before this Commission on the part of any shipper that adequate and proper facilities are not being given by railway companies for the carriage of live stock.

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4. That the Chicago, Milwaukee & St. Paul Railway Company has the right to receive the Hammond, or Swift, or Armour refrigerator car, or the Street cattle car, and carry them over its lines of railway, and at the same time to refuse to receive the Burton stock car, for the same reason that it has the right to give facilities to one express company, and decline to give them to another express company.

See Express Cases, 117 U. S. 1 (Bk. 29, L. ed. 792).

5. That should this Commission hold that the various railway companies which are re spondents herein, or any one of them, are bound to receive the Burton stock car when loaded with live stock, and transport the same so loaded over their lines of railway the same as they transport live stock loaded in their own cars, then it is respectfully submitted that the charges which such railway companies make for such service, as stated in the western classification, under the date of April 1, for the transportation of live stock in special or palace live stock cars, not the property of railway companies, are reasonable and just, and are not in any sense a discrimination against the Burton Stock Car Company. The service is not like and contemporaneous," and the "circumstances and conditions" are widely dissimilar, as shown by the undisputed testimony on the hearing. Respectfully submitted.

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REPORT AND OPINION OF THE COMMISSION.

Walker, Commissioner:

The above entitled cause has been heard upon complaint, answers and proofs. The Burton Stock Car Company complains against the Chicago, Burlington and Quincy Railway Company and Chicago and Alton Railway Company: Union Pacific Railway Company; Lake Shore and Michigan Southern Railway Company; Cleveland, Columbus, Cincinnati and Indianapolis Railway Company; Chicago, Burlington and Northern Railway Company; Hannibal and St. Joseph Railway Company; Missouri Pacific Railway Company; Chicago, Milwaukee and St. Paul Railway Company; and the Burlington and Missouri River Railway Company; alleging in substance that it owns a large number of cars designed for and adapted to the humane transportation of live stock, for the use of which over a hundred railroad companies pay complainant a milage of three quarters of a cent per mile per car, which is illeged to be a customary milage paid by all railroad companies for the use of cars of other railroad companies and owners of cars; while the dedemand for the transportation of live stock in fendants refuse to pay this milage, and also the Burton cars a charge additional to the tariff rate for carrying live stock in ordinary cars, at the rate of 120 per cent of said tariff rate on Burton cars thirty feet in length, increased

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per cent for each additional foot or fraction of a foot of length. The refusal to pay said milage, and said extra charge upon the live stock carried in the Burton cars are alleged to constitute unjust discrimination and extortion, forbidden by sections 1, 2, and 3, of the Act to regulate commerce. There is no charge that the defendant companies or any of them refuse to receive and haul the complainant's cars; but the complaint is directed solely to the refusal to pay milage, and to the extra charge made shippers, as above stated. The complaint concludes as follows: "And said Burton Stock Car Company prays that it may be relieved from such unjust discrimination, and that said railroad companies may be enjoined and restrained from making any extortionate demands and charges, and that said railroad companies may be ordered to haul and operate the cars of the Burton Stock Car Company on the same terms and conditions as they operate their own and the cars of other railroads, individuals, and private companies, and that they may also be ordered to report and account to said Burton Stock Car Company for such milage as has been earned in the past or may be earned in the future over the sev eral lines referred to, by the cars of the said Burton Stock Car Company, and for such further relief as may be deemed just and proper by your honorable Board."

The answer of the Chicago, Burlington and Quincy Railroad Company admits the payment of milage, at the rate stated, to other roads and owners of cars, for the use of their cars running on its lines, but says that the character of said cars and the conditions under which they are used are totally different from the cars of complainant and the conditions of their operation; so that the failure to pay

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