view. Affirmed. case, evidence [291] "deemed typical of been pursued in the proceeding under rethe whole rate structure" will support a finding as to each rate in the structure by raising a rebuttable presumption concerning each rate; that typical "evidence" in this sense means, not evidence directly representative of every individ-[292] UNITED STATES EX REL. CHI ual rate, but evidence tending to show the general situation; that a like presumption arises in a division case; that the data dealing with the traffic in the aggregate, which was furnished by the exhibits, constituted such typical evidence; that, in this proceeding, information concerning individual rates and divisions was not essential; and that the course pursued by the examiner is, in substance, that upheld in the New England Divisions Case (Akron, C. & Y. R. Co. v. United States) 261 U. S. 184, 196199, 67 L. ed. 605, 612-614, 43 Sup. Ct. Rep. 270. CAGO, NEW YORK, & BOSTON RE- V. INTERSTATE COMMERCE COMMIS- (See S. C. Reporter's ed. 292–297.) Carriers car company not within Transportation Act. A corporation owning railroad cars which it merely rents to railroad companies on a mileage basis is not within the provision of the Transportation Act of 1920, guaranteeing the amount of railway operating income to carriers, although Director General during the period of its cars were taken over and used by the Federal control. [No. 288.] The argument is not sound. The power conferred by Congress on the Commission is that of determining, in respect to each joint rate, what divisions will be just. Evidence of individual rates or divisions, said to be typical of Argued May 2, 1924. all, affords a basis for a finding as to any one. But averages are apt to be 1924. Decided May 26, misleading. It cannot be inferred that ON WRIT of Error to the Court of every existing division of every joint Appeals of the District of Columbia rate is unjust as between particular car- to review a judgment affirming a judg riers, because the aggregate result of the ment of the Supreme Court, which denied movement of the traffic on joint rates a mandamus to compel the Interstate appears to be unjust. These aggregate Commerce Commission to issue a certifiresults should properly be taken into cate for compensation under the Transconsideration by the Commission; but it portation Act. Affirmed. was not proper to accept them as a substitute for typical evidence as to the individual joint rates and divisions. In the New England Divisions Case, tariffs and division sheets were introduced which, in the opinion of the Commission, were typical in character and ample in quantity to justify the findings made in respect to each division of each rate of every carrier. A like course should have the joint service performed by the Orient and the part performed by its connection; the revenue arising from the joint service, and how that revenue was divided. For example: The exhibits showed that, during 1921, the Santa Fe and the Orient interchanged 26,278 tons of freight; that, with respect to such freight, the Orient performed 8,162,294 ton miles of transporta tion and the Santa Fe 5,793,098 ton miles; that the revenue arising from this joint service was $218,827.71, of which the Orient received $106,889.59 and the Santa Fe $111,938.12; that the per ton mile revenue of the Orient was 1.309 cents and the per ton mile revenue of the Santa Fe 1.932 cents. See same case below, 53 App. D. C. 111, 288 Fed. 649. The facts are stated in the opinion. Messrs. William G. Wheeler and Edward M. Hyzer argued the cause and filed a brief for plaintiff in error: The introduction of the disjunctive phrase "or system of transportation" makes impossible a construction which confines 209 to railroad companies operating as carriers. 554, 65 L. ed. 1087, 41 Sup. Ct. Rep. 593. Missouri P. R. Co. v. Ault, 256 U. S. Plaintiff in error is a common carrier. Hutchinson, Carr. § 47; J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co. 130 Iowa, 327, 4 L.R.A.(N.S.) 1060, 114 Am. St. Rep. 419, 106 N. W. 749; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872; American Exp. Co. v. Ogles, 36 Tex. Civ. App. 407, 81 S. W. 1023; Kettenhofer v. Globe Transfer & Storage Co. 70 Wash. 645, 42 L.R.A. (N.S.) 902, 127 Pac. 295, Ann. Cas. 1914B, 776; Merchants' Dispatch Transp. Co. v. Bloch Bros. 86 Tenn. 392, Federal Control Act, that the railway 6 Am. St. Rep. 847, 6 S. W. 881; Jack-operating income of such carrier as a son Architectural Iron Works v. Hurl- whole shall not be less than one half the but, 158 N. Y. 34, 70 Am. St. Rep. 432, amount named in such contract as an52 N. E. 665; Caye v. Pool, 108 Ky. 124, nual compensation. 49 L.R.A. 251, 94 Am. St. Rep. 348, 55 S. W. 887; Gurley v. Armstead, 148 Mass. 267, 2 L.R.A. 80, 12 Am. St. Rep. 555, 19 N. E. 389; Buckland v. Adams, 97 Mass. 124, 93 Am. Dec. 68; Tap Line Cases (United States v. Louisiana & P. R. Co.) 234 U. S. 1, 24, 58 L. ed. 1185, 1194, 34 Sup. Ct. Rep. 741. Mr. J. Carter Fort argued the cause, and, with Mr. P. J. Farrell, filed a brief for defendant in error: The term "carrier by railroad," in § 209, means a railroad company operating as a carrier. Wells, F. & Co. v. Taylor, 254 U. S. 175, 187, 188, 65 L. ed. 205, 212, 213, 41 Sup. Ct. Rep. 93; Higgins v. Erie R. Co. 89 N. J. L. 629, 99 Atl. 98; State ex rel. Great Northern Exp. Co. v. District Ct. 142 Minn. 410, 172 N. W. 310. The car company is not a carrier at all, and would not fall within the provisions of § 209, under any possible construction of the term "carrier by rail road." Pullman Co. v. Linke, 203 Fed. 1017; Ellis v. Interstate Commerce Commission, 237 U. S. 434, 443, 444, 59 L. ed. 1036, 1040, 1041, 35 Sup. Ct. Rep. 645; Re Private Cars, 50 Inters. Com. Rep. 652; Re Perishable Freight Investigation, 56 Inters. Com. Rep. 499. The general purpose of the guaranty provision confirms the view that "carrier by railroad" does not include the car company. Denn ex dem. Scott v. Reid, 10 Pet. 522, 9 L. ed. 518; American Exp. Co. v. United States, 212 U. S. 522, 53 L. ed. 635, 29 Sup. Ct. Rep. 315. Section 209, if its meaning were doubtful, should be construed strictly against plaintiff in error. Slidell v. Grandjean, 111 U. S. 412, 437, 28 L. ed. 321, 329, 4 Sup. Ct. Rep. 475. By the same section, subd. (a), the term "carrier" is defined to mean: "(1) A carrier by railroad or partly by railroad and partly by water, whose railroad or system of transportation is under Federal control at the time Federal control terminates, and (2) a sleeping car company whose system of transportation is under Federal control at the time Federal control terminates. By subd. (g), p. 466, the Interstate Commerce Commission is directed to "ascertain and certify to the Secretary of the Treasury the several amounts necessary to make good the foregoing guaranty to each carrier." On March 15, 1920, plaintiff in error, hereafter called the Car Company, filed with the Commission its written acceptance of the provisions of § 209, and at a later time applied to the Commission for the ascertainment and certificate mentioned in subd. (g). The Commission denied the application upon the ground that the Car Company was not a carrier within the meaning of the act. Thereupon, a mandamus was sought from the supreme court of the District of Columbia, to compel the Commission to comply with the provisions of subd. (g), but that court, after a hearing, discharged the rule and dismissed the petition. Upon appeal to the court of appeals, this judgment was affirmed. App. D. C. 111, 288 Fed. 649. 53 The The single question presented is whether the Car Company is a "carrier by railroad." Immediately prior to Fedral control, the Car Company owned 1,340 refrigerator cars, which were operated over various lines of railroad under contracts with the railroad companies. [294] The Car Company did not own or control any railroad property or facilities, aside from these cars. contracts provided for payment of compensation for the use of the cars by the railroad companies on the By 209 (c) of Transportation Act basis of mileage,—that is, a fixed sum (February 28, 1920), chap. 91, 41 Stat. for each mile over which the cars at L. 456, 464, Comp. Stat. § 10,0711dd, were run. The cars were under the Fed. Stat. Anno. Supp. 1920, p. 81, the control of the railroad companies, subUnited States guarantees, for a period ject to the observance, on their part, of six months after March 1, 1920, with of the directions of the Car Company as respect to any carrier [293] with which to the distribution of the cars. The Car a contract has been made fixing the Company solicited freight from shippers, amount of just compensation under the for which it was generally paid commis Mr. Justice Sutherland delivered the opinion of the court: to be "in accord with the ordinary acceptation of the words," and this ordinary meaning was enforced by a consideration of certain provisions of the act, which were enumerated. sions; and exercised a degree of super-rier." If this definition be applied here, vision over the shipment. Sometimes it disposes of the question against the cars containing shipments were delivered contention of the Car Company, since it by noncontract railroads, from which the is plain that it does not operate a railCar Company received payment of the road,—that is, it is not a railroad commileage charges. Bills of lading cover-pany acting as a common carrier. The ing shipments were generally made by contention, however, is that this definithe railroad companies; but a small per- tion was confined to the words as used centage, perhaps 10 per centum, of the in the Employers' Liability Act, and that shipments originating west of Chicago, they are used in the Transportation Act were rebilled on the forms of the Car in a different sense. It is quite true that Company, subject to tariffs and classifi- because words used in one statute have cations of the railroad companies then a particular meaning they do not necesin effect. Waybills were made out by sarily denote an identical meaning when the railroad companies, and all freight used in another and different statute. charges were paid to the railroad com- But in the Taylor Case, the definition panies, no payment for transportation was not made to rest upon any peculiarbeing made by the shippers to the Carity in the act under review, but was said Company. The Car Company was incorporated to manufacture, sell, or rent freight cars, rolling stock, and for other specified purposes; but nothing is said in its articles of incorporation in respect of any operation as a carrier. It filed no tariffs with the Commission, as interstate railroad carriers are required to do; nor did it keep its accounts in accordance with the rules of the Commission. The refrigerator cars were taken over and used by the Director General of Railroads during the period of Federal control, and compensation therefor paid to the Car Company. Upon the expiration of such control the cars were surrendered to the Car Company. The court below accurately summarized the testimony as showing, "that the Refrigerator Company is not [295] incorporated as a carrier, does not control or use the necessary facilities for performing carriage, does not hold itself out to perform carriage by publishing rates applicable thereto, and does not in fact perform carriage or receive any compensation from shippers whose shipments move in its cars. The cars are rented to railroad companies. They are subject to the control of the latter, and are, to all intents and purposes, their property during the period of the lease. În a word, the Refrigerator Company carries nothing." In Wells, F. & Co. v. Taylor, 254 U. S. 175, 187, 188, 65 L. ed. 205, 212, 213, 41 Sup. Ct. Rep. 93, this court defined the words "common carrier by railroad," as used in the Employers' Liability Act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. § 8657, 8 Fed. Stat. Anno. 2d ed. p. 1208, to mean "one, who operates a railroad as a means of carrying for the public,—that is to say, a railroad company acting as a common car In Ellis v. Interstate Commerce Commission, 237 U. S. 434, 443, 444, 59 L. ed. 1036, 1040, 1041, 35 Sup. Ct. Rep. 645, it was held that the Armour Car Lines, which owned, manufactured, and maintained refrigerator, tank, and box cars, and let them to railroads or to shippers, [296] was not a common carrier subject to the Act to Regulate Commerce (February 4, 1887), § 12, chap. 104. 24 Stat. at L. 379, 383, Comp. Stat. § 8576, 4 Fed. Stat. Anno. 2d ed. p. 448. The facts in respect to ownership of cars, use, relation to the railroads, etc., were much the same as those in the present case. After reciting them, this court said: "It has no control over motive power or over the movement of the cars that it furnishes as above, and, in short, notwithstanding some argument to the contrary, is not a common carrier subject to the act. 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 reasonable request,-not that the owners and builders shall be regarded as carriers, contrary to the truth. The control of the Commission over private cars, etc., is to be effected by its control over the railroads that are subject to the act. The railroads may be made answerable for what they hire from the Armour Car Lines, if they would not be otherwise; but that does not affect the nature of the Armour Car Lines itself." We need not review the arguments and contentions made here to RELATION OF JESSE W. BARRETT, KANSAS V. NATURAL GAS COMPANY. (No. 155.) NATURAL GAS COMPANY, V. STATE OF KANSAS ON THE RELA- the contrary. It is enough to say that,, [298] STATE OF MISSOURI ON THE under the facts, the Car Company is not a carrier by railroad, or, indeed, a common carrier at all, within the ordinary acceptation of the words, and there is nothing in the terms of the Transportation Act which suggests a different view. Such inferences as are to be drawn from the provisions of the act, as pointed out by the court below, are the other way. The guaranty itself is in respect "of KANSAS railway operating income." The Car Company's income may be "operating income," but certainly it is not "railway operating income." The income arises not from operating a railway, but from the use of facilities let to the railway companies for fixed compensation. Stress is laid on the assertion that there is no specific language in the contracts, except in one instance, to [297] the effect that the cars are leased. It is not necessary that there should be. In pursuance of the contracts the cars were delivered to, operated and controlled, and their use as instrumentalities of transportation paid for by, the railroads. This is enough to establish a letting for hire; and there is nothing in the contracts or in any of the details of their performance which requires a different conclusion. STATE OF KANSAS ON THE RELA TION OF FRED 8. JACKSON, Attorney for Public Utilities Commission of the State of Kansas, etc., Appt., V. CENTRAL TRUST COMPANY OF NEW (See S. C. Reporter's ed. 298-310.) Commerce over rates. gas power of states The transportation of gas through pipe lines from one state to another, for sale to distributing companies, is interstate commerce, so that the state authorities have no control over the rates to be charged for it, and the fact that Congress has taken no action in the matter is immaterial. [For other cases, see Commerce, 1. b. in Di gest Sup. Ct. 1908; I. b, in 1918 Supp.; L b, in 1923 Supp.) [Nos. 155, 133, and 137.] If the Car Company is a carrier by railroad, it would seem to follow that sleeping car companies and express companies are likewise included within the words. Evidently, however, Congress did not think so, since § 209 of the act contains special provisions in respect of these companies, which would have been entirely unnecessary if they had been so included. The contention that the Car Company, if not a carrier by railroad, is a "system of transportation," and hence within the words of the statutory defini- Argued April 21, 1924. tion, may be readily disposed of. The phrase forms part of the definition: "A carrier by railroad, or partly by railroad A and partly by water, whose railroad or system of transportation is under Fed States for the Western District of Missouri denying an injunction to prevent eral control," etc. It is plain that the the increase of gas rates. Affirmed. words, "whose railroad or system of Also transportation," etc., are not to be read independently, but as qualifying the lanN WRIT of Error to the Supreme guage immediately preceding; and they are to be taken distributively, as though the clause had read, "a carrier by railroad, whose railroad is under Federal control, or, a carrier partly by railroad and partly by water, whose system of transportation is under Federal control." It follows that the judgment of the lower court is right, and it is affirmed. 1924. Decided May 26, PPEAL by relator from a decree of the District Court of the United Court of the State of Kansas to re view a judgment granting a writ of mandamus to compel the supplying of Note. As to state regulation of natural gas rates as affected by the commerce clause of the Federal Constitution -see note to Pennsylvania Gas Co. v. Public Serv. Commission, 64 L. ed. U. S. 434. gas at a specified rate. Reversed. Also an APPEAL by relator from a decree of the District Court of the United States for the District of Kansas refusing to enjoin an increase in the rates for supplying natural gas. Affirmed. See same case below, No. 155, 282 Fed. 341; No. 133, 111 Kan. 809, 208 Pac. 622; No. 137, 282 Fed. 680. The facts are stated in the opinion. Mr. Frank E. Atwood argued the cause, and, with Mr. L. H. Breuer, filed a brief for the state of Missouri and the Public Service Commission: Interstate commerce in natural gas is local in its nature, is peculiarly of local concern, makes provision for local needs, pertains to local public service, and is subject to reasonable state regulation. West v. Kansas Natural Gas Co. 221 U. S. 229, 55 L. ed. 716, 35 L.R.A. (N.S.) 1193, 31 Sup. Ct. Rep. 564; Haskell v. Kansas Natural Gas Co. 224 U. S. 217, 56 L. ed. 738, 32 Sup. Ct. Rep. 442; Pennsylvania v. West Virginia, 262 U. S. 553, 67 L. ed. 1117, 32 A.L.R. 300, 43 Sup. Ct. Rep. 658; Pennsylvania Gas Co. v. Public Serv. Commission, 252 U. S. 23, 64 L. ed. 434, P.U.R.1920E, 18, 40 Sup. Ct. Rep. 279; Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 57 L. ed. 442, 33 Sup. Ct. Rep. 229; South Covington & C. Street R. Co. v. Covington, 235 U. S. 537, 59 L. ed. 350, L.R.A.1915F, 792, P.U.R.1915A, 231, 35 Sup. Ct. Rep. 158; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 372, 60 L. ed. 1050, 1052, 36 Sup. Ct. Rep. 665; Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. ed. 540, 27 Sup. Ct. Rep. 360; North Carolina Pub. Serv. Co. v. Southern Power Co. 33 A.L.R. 626, 282 Fed. 837; State ex rel. Caster v. Flannelly, 96 Kan. 372, P.U.R.1916C, 810, 152 Pac. 22; Manufacturers' Light & Heat Co. v. Ott, 215 Fed. 944; Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 555, 12 L.R.A. 652, 3 Inters. Com. Rep. 613, 28 N. E. 76; Mill Creek Coal & Coke Co. v. Public Serv. Commission, 84 W. Va. 662, 7 A.L.R. 1091, 100 S. E. 562; Heyman v. Hays, 236 U. S. 178, 59 L. ed. 527, 35 Sup. Ct. Rep. 403; Re Rahrer, 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; McDermott v. Wisconsin, 228 U. S. 115, 57 L. ed. 754, 47 L.R.A.(N.S.) 984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A, 39. Mr. J. W. Dana argued the cause for the Kansas City Gas Company. Mr. Robert D. Garver argued the cause, and, with Messrs. Herbert 0. Caster and Richard J. Higgins, filed a brief for the Kansas Natural Gas Company: The business of Kansas Natural that is herein sought to be regulated by the state through the Commission is interstate commerce. West v. Kansas Natural Gas Co. 221 U. S. 229, 55 L. ed. 716, 35 L.R.A. (N.S.) 1193, 31 Sup. Ct. Rep. 564; Haskell v. Kansas Natural Gas Co. 224 U. S. 217, 56 L. ed. 738, 32 Sup. Ct. Rep. 442; Public Utilities Commission v. Landon, 249 U. S. 236, 63 L. ed. 577, P.U.R.1916C, 834, 39 Sup. Ct. Rep. 268. Kansas Natural is not subject to reg ulation by the Commission as to the rates to be charged by it to local gas distributing companies in the state of Missouri because the business being conducted by Kansas Natural is interstate commerce. Covington & C. Bridge Co. v. Kentucky, 154 U. S. 218, 38 L. ed. 968, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; Dahnke-Walker Mill. Co. v. Bondurant, 257 U. S. 282, 66 L. ed. 239, 42 Sup. Ct. Rep. 106; Barton v. Clyne, 258 U. S. 495, 66 L. ed. 735, 23 A.L.R. 229, 42 Sup. Ct. Rep. 397; Pennsylvania v. West Virginia, 262 U. S. 553, 67 L. ed. 1117, 32 A.L.R. 300, 43 Sup. Ct. Rep. 658. Messrs. Robert D. Garver and H. 0. Caster filed a separate brief for the Kansas Natural Gas Company: The business of transporting gas by pipe line from one state into another is interstate commerce. Public Utilities Commission v. Landon, 249 U. S. 236, 63 L. ed. 577, P.U.R. 1919C, 834, 39 Sup. Ct. Rep. 268; Pennsylvania Gas Co. v. Public Serv. Commission, 252 U. S. 23, 64 L. ed. 434, P.U.R.1920E, 18, 40 Sup. Ct. Rep. 279. Mr. Fred S. Jackson argued the cause and filed a brief for the State of Kansas ex rel. A. E. Helm: Sale of natural gas is local in its nature. State ex rel. Caster v. Flannelly, 96 Kan. 372, P.U.R.1916C, 810, 152 Pac. |