was given the Commission over water lines, not, however, going to the extent of making subject to the Commission vessels carrying from port to port without connection with rail lines. § 162. Railroads. Topic A. Callings Subject The cases at law defining the public character of railroad transportation are so numerous that it is difficult to select any one in particular as an illustration. "It is now too well settled in this State to admit of questioning, that railroad companies are common carriers, and as such, that they are amenable to the liabilities imposed by the law applicable to common carriers as the same is administered in this State." 39 But this is applicable only to such railroads as make it a business to carry for the public. "A logging railroad appurtenant to a saw-mill, constructed wholly on private grounds and operated for private purposes is not a common carrier charged with all the duties and responsibilities incumbent by the laws of the land upon common carriers." 40 As the original Act to Regulate Commerce was primarily designed to bring railroad transportation under the intimate control of the federal government, the Commission established thereby has never had any question of the character of the business of a railroad engaged in carrying between the States. The Commission has always recognized that it is dealing with a business essentially monopolistic in character, wherein without regulation of rates by the Government there would not naturally be a sufficient regulation by the process of competition. 11 The Commission also has had little difficulty in determining what a railroad is; but there is no necessity for it to make nice distinctions as to what 39 Southwestern Railroad Co. v. Webb, 48 Ala. 585. 40 Wade v. Critcher & M. C. Lum ber Co., 74 Fed. 517, 20 C. C. A. 515, 41 U. S. App. 45. 41 Advance in Rates-Eastern Case, 20 I. C. C. 243, constitutes carriage strictly as distinguished from other services, as everything ancillary to the provision of transportation is specifically put under its jurisdiction as well as the carriage itself. However, once in a while the question comes up as to when transportation by rail in this general sense has finally come to an end, by the employment thereafter in handling the traffic of other facilities of a different character. 42 § 163. Water lines. As the main purpose of the Act was to regulate transportation by railroad, the regulation of water lines was merely incidental and collateral. 43 Water carriers were not subjected to the control of the Commission, because it was believed that their rates were largely dictated by competition, and it was understood that freedom to quote such rates as they found necessary from day to day, was essential to the carrying on of this commerce to best effect.44 This has not always proved to be the case; the Commission has found for instance that water transportation between the Atlantic seaboard and Galveston has never been open to free competition. 45 It should be noted in this connection that it has recently been held in a State court that the rates of a steamship company plying on the high seas between two ports in the same State are subject to the jurisdiction of the State Commission. 46 Water carriage is not as yet subject to the jurisdiction of the Commission at Washington. As has been seen, only when there is a rail and water route established by some common arrangement is there any service subject to the 42 Kansas City v. Kansas City V. & T. Co., 24 I. C. C. 22. 43 In re Jurisdiction over Water Carriers, 15 I. C. C. 205. 44 Cosmopolitan S. S. Co. v. Hamburg American S. P. Co., 13 I. C. C. 266. 45 Southwestern Shippers Traffic Asso. v. A., T. & S. F. Ry. Co., 24 46 Wilmington Transp. Co. v. Railroad Commission (Cal.), 137 Pac. 135, aff. U. S. Sup. Ct. Feb. 1, 1915. Compare United States v. Pacific Ry. & N. Co., 228 U. S. 87, 57 L. ed. 742, 33 Sup. Ct. 443. 47 Act. Even so, a water carrier, by engaging in interstate transportation with a railroad, does not subject its allwater business to the jurisdiction of the Commission. 48 The Commission, to be sure, may now force the establishment of through routes where one of the parties is a water line.49 But it is doubtful whether the jurisdiction of the Commission to establish through routes can be exercised except over carriers subjecting themselves to the Act. 50 The Commission may pass upon the propriety of whatever rail and water rates are filled with it, but only such rates.51 But rates once established may subsequently be cancelled, if there is a bona fide withdrawal from the arrangement under which they were offered. 52 § 164. Passenger transportation. The pack carriers of mediæval times concerned themselves only with goods; it was not until the day of the stagecoach that the carriage of passengers became a practice. It is needless to state that our railways to-day are in general public carriers of passengers as well as common carriers of goods. Examples, however, will occur where a railway has confined its carriage to the carriage of goods only; and in such case it cannot be called upon to take passengers. 53 On the other hand, if the railroad is operating as a carrier of freight only, it need not run trains. for passengers.54 But the usual fact is that the railroad in question has undertaken to carry passengers as well as 47 Mutual Tr. Co. v. United States, 178 Fed. 664. 48 Augusta & Savannah Steamboat Co. v. O. S. S. Co. of Savannah, 26 I. C. C. 380. 49 Murray L. & T. Co. v. D. & H. Co., 25 I. C. C. 388; see also Milwaukee P. & F. Exch. v. Crosby Transp. Co., 30 I. C. C. 653. 50 Aransas P. C. & D. Co. v. G. H. & S. A. Ry. Co., 27 I. C. C. 403. 51 Echols & Co. v. A., T. & S. F. Ry. Co., 26 I. C. C. 110; see also Southwestern Shippers Traffic Asso. v. A., T. & S. F. Ry. Co., 24 I. C. C. 570. 52 Lumber from Louisiana to North Atlantic points, 27 I. C. C. 186; see also Milburn Wagon Co. v. Lake Shore & M. S. Ry. Co., 18 I. C. C. 144. 53 Wiggins Ferry Co. v. East St. L. V. Ry., 107 Ill. 450. 54 Commonwealth v. Fitchburg R. R. Co., 12 Gray, 180. goods. 55 And then it is bound as a public carrier, when not overcrowded, to take all proper persons who may apply for transportation over its line, on their complying with reasonable rules of the company.56 It has never been questioned in the Commission that the provisions of the Act are as explicit as to its application to the carriage of passengers as to the transportation of goods. 57 And it has been held in the courts that a carrier of passengers is as much subject to the Act as a carrier of goods. 58 § 165. Street railways. The Commission from the first maintained that street railways carrying passengers from one State to another were within the provisions of the Act; and it frequently asserted this jurisdiction over railways of this sort, whatever the character of their service, 59 However, the Supreme Court has recently held that a street railway running across an interstate bridge, and exclusively engaged in carrying passengers, is not within the scope of the word "railroad" used in the Act, as the Commission was designed to deal with the railroad which plays a part in commerce between States, not with the railway which has no real function in such business.60 The Act, it should be noted, makes no distinction between railroads that are operated by electricity and those that use steam locomotives; both are subject to its provisions when engaged in interstate transportation, and are entitled to equal consideration in any controversy before the Commission.61 55 Caldwell v. Richmond & D. R. Co., 89 Ga. 550, 15 S. E. 678. 56 Galena & C. Y. R. R. Co. v. Yarwood, 15 Ill. 468. 57 West End Improvement Co. v. T. C. B. Ry. & B. Co., 17 I. C. C. 239. 58 Louisville, N. O. & T. T. R. R. v. State, 66 Miss. 662, 6 So. 203, 2 Int. Com. Rep. 18. 59 Willson v. R. C. R. R., 7 I. C. C. Rep. 83; Citizens of Somerset v. Washington Ry. & Elec. Co., 22 60 Omaha & C. B. St. Ry. Co. v. Int. Com. Comm., 230 U. S. 324, 33 Sup. Ct. 890. 61 Chicago & M. Elec. R. Co. v. Illinois C. R. Co., 11 I. C. C. 20. It would seem, therefore, that it is not motive power which is conclusive, but the character of the line in question, and it would follow that interurban lines of a commercial character are common carriers subject to the act.62 It is the duty of such roads to provide cars and all other facilities necessary to properly serve the public; and through routes and joint rates may now be established over them.63 But it is plainly the provision of the Act, as it now reads, that through routes and joint arrangements may not be required between a steam road and an electric railway that does not transport freight as well as passengers.64 § 166. Express companies. Express companies are peculiarly an American institution, which has flourished under the decisions of the courts to the effect that the railroad can make exclusive arrangements with the expressman of their choice; and since they live by the grace of the railroads, their existence can properly be justified only to the extent that their service is more efficient and more reasonable than that which would be given by the railroads themselves. And according to the way the Commission views their function, the express companies are agencies of the railroad for doing a small parcel business, to be treated as freight forwarders by passenger train, giving supplemental service and intermediate care.65 Express service is desired because shipments to smaller communities are not of sufficient size to warrant movement in carload quantities; and freight service is too slow except where package cars are run.66 The main object of an express service is expedition; and express rates should not be so low as to attract busi 62 Louisville Board of Trade v. I. C. & S. T. Co., 27 I. C. C. 499. 63 St. Louis, S. & P. R. R. v. P. & P. U. Ry. Co., 26 I. C. C. 226. 64 Cincinnati & C. T. Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486. 65 The Express Cases, 117 U. S. 1, 29 L. ed. 791, 6 Sup. Ct. 542. 66 In re Express Rates, 24 I. C. C. 380. |