Summary
APPEALS FROM THE UNITED STATES COMMERCE COURT.
These are all appeals from decrees of the United States Commerce Court (209 Fed. Rep. 244) annulling orders of the Interstate Commerce Commission refusing in whole or in part to compel certain common carriers which had filed schedules cancelling former schedules covering through routes and joint rates with the Louisiana & Pacific Railway Company, the Woodworth & Louisiana Central Railway Company, the Mansfield Railway & Transportation Company and the Victoria, Fisher & Western Railroad Company, appellees, hereinafter referred to as tap lines, to establish or reestablish through routes and joint rates and to grant allowances and divisions to the tap lines.
The Commission, after an extensive investigation of the tap lines in the lumber regions, particularly ha the States of Arkansas, Missouri, Louisiana and Texas, on April 23, and May 14,1912, filed its report and supplemental report (23 I. C. C. 277, 549). The report deals at some length with the manner in which logs and lumber are moved in that territory and the practices attending such ^traffic. The Commission found the identification of the road with the industry, the necessity of incorporation to secure divisions and allowances, the great amount in the aggregate paid by the trunk lines to the tap lines, and the resulting discrimination, the fact that allowances were dependent upon the bargain the tap lines might exact from the trunk lines for a proportion of their traffic and not upon the amount of service rendered, and the fact that most of the lumber mills were aaear public carriers and that the tap lines would not be kept in operation if the mills were removed. General principles for determining the character of carriers were set forth, and the conclusion stated .that the real relation of a tap line was a question to be decided upon the facts in each case.
The Commission entered upon a particular examination of the various lines under investigation, among others, the appellees in these appeals. It found:
The Louisiana & Pacific Railway Company, controlled by the R. A. Long interests, owning a controlling interest in the Hudson River Lumber Company, the King-Ryder Lumber Company, Longville Lumber Company and the Calcasieu Long Leaf Lumber Company, consists of the following tracks, all of which were originally constructed as private lagging roads: (1) a track from De Ridder Junction, Louisiana (all of the lines involved in these Cases are within that State), to Bundicks, a distance of eight miles. The mill of the Hudson River Lumber Company in whose interest this track is operated is located at De Ridder within a few hundred feet of the trunk lines; Bun-dicks is apparently a logging camp with a company store. (2) A track from Lilly Junction to Walla, about seven and one-half miles, the latter being a point in the woods where the King-Ryder Lumber Company has a commissary and where is located a small independent yellow-pine mill, owned by the Bundick Creek Lumber Company. The mill of the King-Ryder Compapy is at Bon Ami, a town of 2,000, located on the Lake Gharles & Northern Railroad Company'a short distance from and connected by it with Lilly Junction. (3) A track of two miles at Longville, a town of 2,000 people, where the Longville Lumber Company has its mill and a store, and where also are several independent stores. (4) A track of nine miles from Fayette to Camp Curtis, a place of 200'population, where the Calcasieu Long Leaf Lumber Company has a store, its mill being at Lake Charles. (5) A track of one mile from Bridge Junction to Lake Charles station. The towns De Ridder, Bon Ami, Lilly Junction, Longville, Fayette and Lake Charles are connected by The Lake Charles & Northern Railroad, a Southern Pacific Railway Company line, originally built by the Long interests as a part of the Louisiana & Pacific, and sold to the Lake Charles & Northern with the reservation of,trackage rights advantageous to the Louisiana & Pacific. By means of this arrangement the Louisiana & Pacific connects with the Kansas City Southern and the Santa Fe at De Ridder, with the Frisco at Fulton (a station south of Fayette) and with the Southern Pacific, Iron Mountain and Kansas City Southern at Lake Charles. Its equipment consists of 22 locomotives, 6 cabooses, 41 freight cars and 270 logging cars, and a private car used by its-officers, who are connected with the lumber companies, in traveling around the country. The lumber companies have many miles of unincorporated logging tracks connecting with the Louisiana & Pacific at various points. There are a number of other stations on the line, among them Bannister, where the Brown Lumber Company owns a small independent mill.
The operation is this: The lumber companies load the logs and switch them over the logging spurs to connection with the tap line which hauls them to the mill, an average distance of 30 miles, for which no charge is made. The tap line switches the carloads of lumber from the mill at Lake Charles, a distance of three-quarters of a mile, to the Southern Pacific; at De Ridder only a few hundred feet to the trunk lines; from the Lake Charles mill to the Frisco a distance of 18 miles; from the Bon Ami mill to the Southern Pacific at Lake Charles a distance of 40 miles, and from the Longville mill to the Southern Pacific at Lake Charles a distance of 24 miles, — the average haul for the controlling companies being nearly 20-miles. By written agreement 50% of the lumber must be routed over, the Frisco and 40% over the Southern Pacific, but this is not always done. 243,122, tons of lumber, as against 8,819 tons of merchandise were shipped in 1910, 98% of the whole tonnage being supplied by the controlling interests. The passenger receipts for 1910 were $473.77. A logging train runs daily on each branch and there is one “mixed” train, loaded chiefly with logs and lumber, between Lake Charles and De Bidder. The allowances paid by the trunk lines range from lp2 to 5^c per 100 pounds out of their earnings under the group-lumber rate. The operating revenue for the year ending June 30, 1910, was $220,985.94, with operating expenses of $145,433.69, and there was an accumulated surplus of $73,581.07 on that date.
The Commission found that no charge was made for hauling the logs to the mills by the tap line and that for the short switching service allowances were made as above stated, and concluded that it regarded the whole arrangement as indefensible and unlawful, and saw no ground upon which any allowance might lawfully be made.
The Woodworth & Louisiana Central Railway Company and the Rapides Lumber Company, situated at Woodworth, are identical in interest. The mill is near the Iron Mountain which has a spur track to the mill, and the tap line has a standard gauge track from the mill to La Moria, about six miles, where it connects with the Southern Pacific Railway, Texas & Pacific Railway and Chicago, Rock Island & Pacific Railway, and a narrow gauge track in the other direction for 18 miles whence spur tracks go into the timber. The equipment consists of 1 standard gauge locomotive, 5 narrow gauge locomotives and 2 standard and 9 narrow gauge cars. The steel in the logging spurs and 4 of the narrow gauge locomotives used by the lumber company on the spurs are owned by the tap line and leased to the lumber company; while the right of way for the narrow gauge track is leased from the lumber company.
The. tap line hauls the logs from its terminus to the mill without charge, where they are dumped by the trainmen into the mill pond. The carloads of lumber are switched by the tap line from the, planing mill to the place where they are taken by the Iron Mountain, about 25 feet. About 95% of the lumber goes through La Moria, being switched there by the tap line; the allowances from the Iron Mountain out of through rates being from V/2 to 5^e per 100 pounds, while from the trunk lines at La Moria from 2 to 5^c. There are no joint rates except on lumber. For the year ending June 30; 1910, there was 40,707 tons of freight handled for the lumber company and 2,100 tons of outside traffic. It has no passenger business. Its operations for that year showed a deficit, but there was a surplus from previous years of nearly $10,000. It files annual reports with the Commission.
The Mansfield Railway & Transportation Company and the Frost-Johnson Lumber Company are identical in interest. The tap line extends, from Mansfield to a logging camp in the woods known as Hunter, a distance of about 16 miles and the line which was originally incorporated by the citizens of Mansfield in 1881 consisting of 2 miles of track from the town to a connection with the Texas & Pacific at Mansfield Junction. Later the Mansfield Company acquired the two-mile track and equipment, and the. interests controlling it purchased a large amount of timber lands near Mansfield at a point called Oak Hill where a mill was built, and spur tracks were laid into the timber, which were later turned over to the Mansfield Company, with the free privilege reserved to the Lumber Company to operate logging trains between the timber and the mill, which operation is performed by a, subsidiary company. The purchase price did not reflect the value of the reservation. There are about 25 miles of unincorporated logging tracks. The1 tap line also has a connection with the Kansas City Southern. It owns a locomotive, a passenger coach and a box car.
The service performed by the tap line is switching cars between the mill and the Kansas City Southern about three-fourths of a mile, although the mill is within' 300 feet of the Kansas City Southern and was formerly connected by a spur track which was abandoned and taken up, and to the Texas & Pacific, a distance of two and one-half miles. The tap line bears the expense of maintaining its tracks extending into the woods.
No other yellow-pine mills are served by the tap line, but there is a hardwood mill adjacent to the Frost-Johnson mill, obtaining a substantial portion of its logs from the latter company or subsidiaries, the price including delivery at the hardwood mill, the logs being hauled by the logging company under its trackage right. Some logs are also obtained from the Texas & Pacific, for the switching of which the hardwood mill pays the tap line $2.50 a car or less. The tap line maintains joint rates on hardwood as well as yellow-pine.
Practically no traffic other than that in which the Lumber Company is interested moves over the track from Mansfield to Hunter, but a good deal of outside traffic moves over the original two miles from Mansfield to Mansfield Junction. 16,539 tons of miscellaneous freight was handled during the year ending June 30, 1910, most of which passed over the Mansfield Junction branch, and much of which was for the controlling interests or their employes; while during the same time 28,596 tons of lumber were handled, 91.4 per cent, of which was supplied by the Lumber Company. A daily train is operated by the tap line in each' direction on regular schedule, handling passengers, mail and, express; but in 1910 the passenger revenues were only $1,209.76, while its freight revenues were $25,617.19.
The Commission noticed the abandonment of the 300 foot spur track and then the payment of an allowance of 1 to 4c per 100 pounds, and held that it was a mere manipulation of the situation in order to establish an unlawful relation; and also held that since the tap line crosses the right of way of the Texas & Pacific within a short distance, the allowance of a like amount by the Texas & Pacific for switching from the mill to Mansfield and down to the junction was unlawful.
The Victoria, Fisher & Western Railroad Company and the Louisiana Long Leaf Lumber Company have the same stockholders and officers. The tap line extends from Victoria, where it connects with the Texas & Pacific, to Fisher, where it crosses the Kansas City Southern Railway, and then extends to Cain, in all about 31 miles. A part of the track was built some time ago and was acquired by the Lumber Company in 1900. In 1902 the Railroad Company was incorporated and its stock exchanged as a stock dividend for the line. There are about 25 miles of logging spurs and sidetracks. The equipment consists of 5 locomotives, 4 cabooses, 3 box cars, 1 flat car and 105 logging cars. It does not operate any trains on regular schedule. There are two mills owned by the Lumber Company, one about a mile from the junction with the Texas & Pacific and the other about half a mile from the tracks of the Kansas City Southern.
The tap line hauls the logs from the forest to the mill, charging $1.50 per 1,000 feet, which is supposed to cover only the service performed on the logging spurs and not the haul over the main track. The greater part of the lumber from Fisher is turned over to the Kansas City Southern, involving a one-half mile switch by the tap line, and from Victoria is moved by the tap fine one mile to the Texas & Pacific; a small amount of the lumber from each mill is taken by the tap line to the more distant trunk line, but the same divisions are paid. The allowances range from % to 4c per 100 pounds, and the joint rates are the same as the rates published from adjacent mills on the trunk lines, except traffic moving to Texas, for which 134c per 100 pounds is added to the junction-point rate. No passengers are carried, and of 316,676 tons of freight for the year 1910, over 99% was furnished by the proprietary company. And the accumulated surplus at the end of June, 1910, was $13,509.17.
The Commission held that the tap line could not participate as a common carrier in joint rates on the products of the proprietary company, but said that the lumber rate of the trunk lines applied from the adjacent mills and that they might make a reasonable allowance for switching.
The Commission made an order in such matter on May 14, 1912, which it amended on October 30, 1912. The amended order, so far as these appeals are concerned, provided:
"The Commission upon the record finds in the case of the . . . Woodworth & Louisiana Central Railway Company; Mansfield Railway & Transportation Company; Louisiana & Pacific Railway Company; Victoria, Fisher & Western Railroad Company; that the tracks and equipment with respect to the industry of the several proprietary companies are plant facilities, and that the service performed therewith for the respective proprietary lumber companies in moving logs to their respective mills and performed therewith in moving the products of the mills to the trunk lines is not a service of transportation • by a common carrier railroad but is a plant service by a plant facility; and that any allowances or divisions out of the rate on account thereof are unlawful and result in undue and unreasonable preferences and unjust discriminations, as found in the said reports,” and it ordered that the trunk lines should cease and for' two years abstain from making any such allowances to the tap lines named. ;
The Commission further ordered that if the trunk lines failed by a time stated, to reestablish the through routes and joint rates in effect oh April 30, 1912, on traffic other than the products of the mills of certain proprietary companies, among others, the appellees herein, it would upon proper petition enter an order requiring the establishment of such routes and rates or enter upon an inquiry with respect thereto, and further provided that all divisions of joint rates should be submitted to the Commission for approval.
The appellees thereupon by their several petitions filed in the United States Commerce Court sought to have the order of the Commission, so far as applicable to them, enjoined and annulled. The Interstate Commerce Commission, the Atchison, Topeka and Santa Fe Railway Company, the Gulf, Colorado and Santa Fe Railway Company and the Railroad Commission of Louisiana intervened. The Commerce Court said that the question was whether the Commission had acted arbitrarily and on improper considerations in determining under what circumstances a common carrier tap line would be deemed to be performing a mere plant service for a proprietary company, and held that as the service rendered to the proprietary and non-proprietary mills by the tap lines was the same, and as it was held to be a transportation service by an interstate common carrier as to the non-proprietary mills, it must be held to be a similar service as to the proprietary mills, and concluded that the Commission was without power to prohibit the making of joint rates by the trunk lines and the tap lines and the payment of some division of such rates to the tap lines for their services in hauling logs to and lumber from the proprietary mills, and annulled the order of the Commission in this respect and so far as it applied to the appellees.
The United States and the Interstate Commerce Commission, and the Atchison, Topeka & Santa Fe Railway Company and the Gulf, Colorado and Santa Fe Railway Company entered separate appeals from the decrees of the Commerce Court in the four cases instituted by the appellees.
The trunk lines sought to cancel their tariffs prescribing divisions and allowances to the tap lines. The latter filed petitions with the Commission, complaining of this action. They requested that an answer be required from each trunk line, that an investigation be entered into, and that through routes and joint rates be established between the trunk lines and the tap, lines. The Commission found that the tap lines were plant facilities of the lumber companies, denied the relief prayed, and by a single order dismissed the several petitions. This order was a negative order. As no affirmative order was entered against the tap lines, which they might annul or enjoin, the Commerce Court was without jurisdiction. Proctor & Gamble Co. v. United States, 225 U. S. 282; Hooker v. Knapp, 225 U. S. 302.
In cases of preference and discrimination, this court has held that judicial review is limited to the single inquiry, Was there substantial evidence before the Commission to support the order? In their petitions to the Commerce Court, the tap fines alleged much matter other and different from that which they adduced before the Commission. They also offered new evidence. A^ong other things, they sought to. show conditions which they had created after the hearing before the Commission relating to the operation of the tap fines, and also to swell substantially the volume of the tonnage handled for others than the proprietary companies. They now seek to destroy the report and order of the Commission with a record which was-not before it. Congress did not contemplate a retrial of the same issues of fact before another tribunal. The Commerce Court was right in disregarding the testimony taken before it, and in striking it from the record. I. C. C. v. Un. Pac. R. R. Co., 222 U. S. 541, 550; I. C. C. v. Louis. & Nash. R. R. Co., 227 U. S. 88; United States v. Balt. & Ohio R. R. Co., 225 U. S. 306, 323.
The Commission had the right to look behind the fact of separate incorporation to ascertain the actual relations of the parties. The tap lines are not bona fide common carriers of the traffic of the lumber companies, but they are mere devices created for the purpose of taking over the switch tracks and logging equipment of the several lumber companies, and converting allowances, which would otherwise be bald rebating transactions, into private divisions between the appellee tap lines and the trunk lines, in order to evade the provisions of the Act to Regulate Commerce,. and simultaneously to maintain advantages over other shippers of lumber. Miller & Lux v. Canal Co., 211 U. S. 293; So. Pacific Co. v. I. C. C., 219 U. S. 498, 521; United States v. Union Stock Yard, 226 U. S. 286, 304; United States v. Lehigh Valley R. R. Co., 220 U. S. 257; Fourche River Co. v. Lumber Co., 230 U. S. 316; Crane Iron Works v. United States, 209 Fed. Rep. 238.
The particular preferences and advantages to the lumber companies may be thus summarized: 1. The allowance of l^c to 5c per 100 pounds from the freight rate, and the resultant advantages of these lumber companies over their competitors in the transportation and sale of lumber in the markets. Some of the mills turn out 2,500 cars per year; 4c per 100 pounds, on the basis of 50,000 pounds to the car, would 'amount to $50,000 to a single company within a single year. 2. The use by the lumber companies of the tracks, switches and sidings as holding yards for loaded and empty cars, which enables them to evade all demurrage and car service charges. The tap lines hold for the lumber companies the cars of the trunk lines on the basis of 50c a day-after 6 days free time, instead of the lumber companies paying the usual $1 and $2 per day over 48 hours free time. 3. The use of free interstate transportation over the trunk fines distributed wholesale to the officers and agents of the lumber companies and used by them in travelling in the interest of the lumber companies, or in their own interest.
In order 'to gain these preferences and discriminations, the lumber companies are making the transportation of their enormous traffic a matter of bargain with all of the trunk fines, and the sale of it to the one or two which pays the highest allowances. With the power wielded in controlling the routing, the lumber companies are forcing the trunk fines to make allowances to the tap fines, of which the stockholders of the lumber companies are getting the benefit.
The conclusions reached by the Commission did not proceed upon arbitrary and unlawful distinctions and are supported by substantial evidence.
The switching service within 3 miles of the trunk fine, being one which the trunk fine held itself out to perform under the through rate, was a service “connected with transportation” when performed by the shipper or its agent. Switching for a greater distance so performed was purely an accessorial service. Taenzer & Co. v. C., R. I. & P. Ry. Co., 191 Fed. Rep. 543; C. & A. Ry. Co. v. United States, 156 Fed. Rep. 558; affirmed, 212 U. S. 563; Central Yellow Pine Association v. V. S. & P. R. Co., 10 I. C. C. 193; Fourche River Co. v. Bryant Lumber Co., 230 U. S. 316, 322; United States v. B. & O. R. R. Co., 231 U. S. 274; I. C. C. v. Diffenbaugh, 222 U. S. 42; Matter of the Transportation of Hutchinson Salt, 10 I. C. C. 1, 9; Star Grain Co. v. A., T. & S. F. Ry. Co., 17 I. C. C. 338; Fathauer Co. v. St. L., I. M. & S. Ry. Co., 18 I. C. C. 517; Industrial Lumber Co. v. S. L. W. & G. Ry. Co., 19 I. C. C. 50; Santa Fe Ry. v. Grant Bros., 228 U. S. 177, 185; Crane Iron Works v. United States, 209 Fed. Rep. 238; Kaul Lumber Co. v. Central of Georgia Ry. Co., 20 I. C. C. 450; United States v. B. & O. Ry. Co., 231 U. S. 274; General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237; Solvay Process Co. v. D., L. & W. R. R. Co., 14 I. C. C. 246; Re Allowances for Sugar Transfer, 14 I. C. C. 619; C. & O. Ry. Co. v. Standard Lumber Co., 174 Fed. Rep. 107; Industrial Railways Case, 29 I. C. C. 212; Le Roy Fibre Co. v. C., M. & St. P. Ry. Co., 232 U. S. 340, 354; Am. Sugar Co. v. D., L. & W. R. R. Co., 200 Fed. Rep. 652, 656; Mitchell Coal Co. v. Penna. R. R. Co., 230 U. S. 247, 264.
A plant facility tap line performing this service within the 3 mile limit was entitled to an allowance under § 15, but to no division out of the through rate. A common carrier tap line was entitled to a division or allowance out of the through rate on a haul of either more or less than 3 miles. The movement of the logs from the forest to the mill was not a transportation service to be paid for out of the through rate, but an accessorial service for which the shipper should pay.
Any allowance for switching within 1,000 feet of a trunk line was a mere device to effect an unlawful payment. These findings are within the principles approved by this court in Mitchell Coal Co. v. Penna. R. R. Co., 230 U. S. 247, 265, to the effect that an allowance to a tap line under § 15 “is lawful only when the trunk fine prefers, for reasons of its own and without discrimination, to have the lumber company perform the service.”
The Commerce Court affirmed in all respects the report and. order of the Commission, with the single and sole exception that the Commission had arbitrarily found the tap lines to be plant facilities of the lumber companies, and impliedly recognized them as common carriers of an insignificant amount of traffic of a few other shippers, amounting to only 1 or 2 per cent of the whole.
The tap lines, the lumber companies, and the trunk lines, in all of their arrangements among themselves, and in various forms, carefully and clearly separated the traffic of the proprietary companies from the traffic of other shippers, and the Commission simply treated the case as the parties themselves had made it.
The preferences and discriminations found by the Commission do not arise out of the insignificant amount of traffic handled for shippers other than the proprietary companies. Such shippers do not receive the allowance of lj/jc to 5c, or free demurrage and car service, or free passes. Rebates are not paid to the publie on insignificant amounts of traffic, but they are paid to private parties on large volumes of traffic.
■Any allowance whatever to as many as 57 tap lines was stricken down as unlawful, and the petitions were dismissed by negative orders. To 35 other tap lines the Commission allowed either a small division of the rate or an arbitrary switching charge, in the" amounts which the Commission found they were entitled to receive for the service which they rendered. To 5 other tap lines the Commission refused any allowance on the traffic of the proprietary companies. No trunk line has come forward to challenge the validity of the order. Those which were brought in by summons have answered that they would allow the. United States to defend. Out of a total of 97 tap lines against which the order was directed, 92 have accepted its terms. Only 5 have objected. Twice the report of the Commission has been sanctioned by this court to the extent of citing it as authority. Mitchell Coal Co. v. Penna. R. R. Co., 230 U. S. 247, 264, 265; Fourche River Co. v. Bryant Lumber Co., 230 U. S. 316, 322. The five objecting parties are met with the powerful presumptions of validity which accompany the order, which are reenforced by the nonaction of the great majority of the interested parties, and the sanction which this court has already given to the report in the cases already cited.
The tap line division is a rebate and the various steps taken by appellees in their attempts to legalize such rebate are mere devices to evade the payment of the published tariff rate in full.
The incorporation of the various tap line railroads and the other steps taken by them were for the sole purpose of continuing under the name of a division the old open rebate which was paid direct to the lumber companies. Masquerading as railroads, the lumber companies were making their traffic a matter of bargain and sale and by the device of a secret division were compelling the trunk lines to bid against each other in the dark for such business. Such was the proper finding of the Interstate Commerce Commission.
The points raised by appellees before the Commerce Court and before the Interstate Commerce Commission are without merit. The facts of récord and the law are that:
The service performed by each of the appellee railroads herein is not a service of transportation by a common carrier railroad within the meaning of the . Act to Regulate Commerce, but is an industrial service to the plant; the appellee railroads are plant facilities and perform a plant facility service for the proprietary lumber companies; there was abundant evidence upon which the Commission could base its finding that the participation by the appellee railroad in joint rates upon the logs and lumber of the proprietary lumber companies constitutes an undue and. unreasonable preference and subjects other shippers to unjust discrimination within the meaning of the Act to Regulate Commerce.
The Commission’s order does not result in undue or unreasonable preference or unjust discrimination within the meaning of the Act to Regulate Commerce, either as between common carriers subject to the Act to Regulate Commerce, or as between shippers.
The ordei does not deprive the appellees of their rights under the Constitution of the United States.
The Commodities Clause does not repeal the Act to Regulate Commerce with respect to the prohibitions against rebating and discriminations.
Cases heretofore relied upon by appellees can be distinguished.
In support of these contentions, see Armour Packing Co. v. United States, 209 U. S. 56; Blackstone v. Miller, 188 U. S. 206; Brundred v. Rice, 49 Ch. St. 640; Central Pine Assn. v. Shreveport &c. R. R. Co., 10 I. C. C. 193; Chicago & Alton R. R. Co. v. United States, 156 Fed. Rep. 558; 1 Cook on Corporations, 6th ed., 31; 2 Cook on Corporations, 6th ed., 1972, 1974, 1975, 1983, 1985, 1986, 1987; Corporation Tax Cases, 220 U. S. 107; Crane Iron Works v. United States, 209 Fed. Rep. 238; Crane Iron Works v. Central R. R. Co., 17 I. C. C. 514; Crane Railroad Co. v. Phila. & Reading Ry. Co., 15 I. C. C. 248; Demko v. Carbon Hill Coal Co., 136 Fed. Rep. 162; Eastern & Western Ry. Co. v. Rayley, 157 Fed. Rep. 532; General Electric Co. v. N. Y. C. & H. R. R., 14 I. C. C. 237; Hunter v. Baker Vehicle Co., 190 Fed. Rep. 665; Ill. Cent. R. R. Co. v. Int. Com. Comm., 206 U. S. 441; Industrial Railways Case, 29 I. C. C. 212; Re Divisions of Joint Rates, 10 I. C. C. 661; Re Hutchinson Salt, 10 I. C. C. 1; Re Investigation of Tap-line Connections, 23 I. C. C. 277, 283; Int. Com. Comm. v. C., R. I. & P. Ry. Co., 218 U. S. 88; Int. Com. Comm. v. D., L. & W. R. R. Co., 220 U. S. 235; Int. Com. Comm. v. L. & N. R. R. Co., 227 U. S. 88; Re Rieger, 157 Fed. Rep. 609; Kendall v. Klapperthal Co., 202 Pa. St. 596, 52 Atl. Rep. 92; Lehigh Mining Co. v. Kelly, 160 U. S. 327; Louis. & Nash. R. R. Co. v. Mottley, 219 U. S. 467; La. & Pac. Ry. Co. v. United States, 209 Fed. Rep. 247; Martin v. Martin Co., 88 Atl. Rep. 612; Miller & Lux v. East Side Canal Co., 211 U. S. 293; McKilvergan v. Alexander Lumber Co., 102 N. W. Rep. 332; New York, N. H. & H. R. R. Co. v. Int. Com. Comm., 200 U. S. 361; Northern Securities Co. v. United States, 193 U. S. 197; Peavey Elevator Case, 222 U. S. 42; Procter & Gamble v. United States, 225 U. S. 282; Santa Fe &c. Ry. Co. v. Grant Bros., 228 U. S. 177 ; Seymour v. Spring Forest Assn., 144 N. Y. 333; Solvay Process Co. v. D., L. & W. R. R. Co., 14 I. C. C. 246; So. Pac. Terminal Co. v. Int. Com. Comm., 219 U. S. 498; Swift v. United States, 196 U. S. 375; Union Pacific R. R. Co. v. Updyke, 222 U. S. 215; Taenzer & Co. v. C., R. I. & P. Ry. Co., 170 Fed. Rep. 240; S. C., 191 Fed. Rep. 543; United States v. Bags of Coffee, 8 Cr. 415; United States v. B. & O. R. R. Co., 231 U. S. 274; United States v. Del. & Hud. R. Co., 213 U. S. 366; United States v. Milwaukee Transit Co., 142 Fed. Rep. 247; United States v. Union Stock Yard, 226 U. S. 286; Wade v. Lutcher, 74 Fed. Rep. 517; Watson v. Bonfils, 116 Fed. Rep. 157; Williams v. Northern Lumber Co., 113 Fed. Rep. 382.
The service performed by each of the appellee railways is a service of transportation by a common carrier within the meaning of the Act to Regulate Commerce.
Appellee railways are not plant facilities and do not perform a plant facility service for the lumber companies, appellees herein.
There was no evidence upon which the Interstate Commerce Commission could base its finding that the participation by the appellee railways in joint rates upon the logs and lumber of the appellee lumber companies constitutes an undue or unreasonable preference, or subjects any party to any illegal discrimination within the meaning of the Act to Regulate Commerce.
The Commission’s order results in undue and unreasonable preference and unjust discriminations within the meaning of the Act to Regulate Commerce as between carriers subject to the Act to Regulate. Commerce and as between shippers.
The order deprives appellees of their rights under the Constitution of the United States.
The order of the Commission expressly overrides the exception contained in the Commodities Clause of the Act to Regulate Commerce.
In support of these contentions, see Amos Kent Co. v. Assessor, 114 Louisiana, 862; Butte & Pac. Ry. Co. v. Montana Union R. Co., 16 Montana, 504; Bridal Veil Lumber Co. v. Johnson, 30 Oregon, 581; 46 Pac. Rep. 790; Beaumont &c. R. R. v. A., T. & S. F., 24 I. C. C. 161, 163; Chapman v. Trinity Valley Ry. Co., 138 S. W. Rep. 440; Columbia Conduit Co. v. Commonwealth, 90 Pa. St. 307; Contra Costa. Ry. Co. v. Moss, 23 California, 323; Commodities Clause Case, 213 U. S. 366-417; Crane Iron Works v. United States, 209 Fed. Rep. 238; DeCamp v. Hibernia Ry. Co., 47 N. J. Law, 46; Diffenbaugh Case, 176 Fed. Rep. 409; Elevator Cases, 14 I. C. C. 324; 176 Fed. Rep. 409; 222 U. S. 42; Federal Sugar Case, 20 I. C. C. 200; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Greasy Creek Co. v. Ely Jellico Coal Co., 132 Kentucky, 692; General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237; Kans. & Tex. Ry. Co. v. North West. Coal Co., 161 Missouri, 288; 61 S. W. Rep. 864; Kettle River Ry. Co. v. Eastern Ry. Co., 43 N. W. Rep. 473; La. & Pac. Ry. Co. v. United States, 209 Fed. Rep. 247; Manufacturers Ry. Co. v. St. L., I. M. & So. Ry., 21 I. C. C. 304, 312; Madura Railway Co. v. Raymond Granth Co., 86 Pac. Rep. 27; Mitchell Coal Co. v. Pennsylvania Ry. Co., 230 U. S. 247, 264; Solvay Process Co. v. D., L. & W. R. R. Co., 14 I. C. C. 246; Ulmer v. Railway Co., 98 Maine, 581; 57 Atl. Rep. 1001; Union Stock Yard Case, 226 U. S. 286 ; United States v. Balt. & Ohio R. R. Co., 231 U. S. 274.
The interest of the State of Louisiana in these cases lifts them from the category of mere private controversy and places them on the plane of public questions.
Many important railroads now operating in Louisiana originated as tap lines.
There is a public necessity for the tap line railroads.
The questions here presented, being public in their nature, and not merely private controversy, are of great interest to the people of the State of Louisiana.
In support of the contentions of the State, see Agee v. Louis. & Nash. R. R. Co., 152 Alabama, 344; Amos Kent Brick Co. v. Tax Collector, 114 Louisiana, 862; Butte & Pac. R. Co. v. Montana Union Ry., 16 Montana, 504; Caldwell v. Richmond &c. R. Co., 89 Georgia, 550; Central Yellow Pine Ass’n v. Vicksburg &c. R. R. Co., 10 I. C. C. 193; Chi., B. & Q. R. R. Co. v. Cutts, 94 U. S. 155; Chi., B. & Q. R. Co. v. Porter, 43 Minnesota, 527; De Camp v. Hibernia Ry. Co., 47 N. J. Law, 43; Denver &c. R. Co. v. Cahill, 8 Colo. App. 158; Re Divisions of Joint Rates, 10 I. C. C. 385; Dock Co. v. Garrity, 115 Illinois, 155; Lake Superior R. R. Co. v. United States, 93 U. S. 442; McCloud Lumber Co. v. So. Pac. Co., 24 I. C. C. 89; National Dock Co. v. Central R. R. Co., 32 N. J. Eq. 755; N. Y. Cent. R. R. Co. v. Lockwood, 17 Wall. 357; Phillip v. Watson, 63 Iowa, 28; 18 N. W. Rep. 859; Star Grain Co. v. Atchison &c. Ry. Co., 17 I. C. C. 338; S. C., 14 I. C. C. 364; Tap Line Cases, 23 I. C. C. 277; Re Transportation Hutchinson Salt, 10 I. C. C. 1; Ulmer v. Lime Rock Ry. Co., 98 Maine, 579; United States v. Union Stock Yard, 226 U. S. 286; Winona R. R. Co. v. Blake, 94 U. S. 180.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
