gations to or for them, does not come within the provisions of the act, and is not bound to make any reports of its business to the commission. United States v. Railroad Co., 81 Fed. 783 (1897), following, C. N. O. & T. P. R. Co. v. Commission, 162 U. S. 184, 40 L. Ed. 935 (1896), and Commission v. B. Z. & C. R. Co., 77 Fed. 942 (1897). See also U. S. v. Geddes (6th Cir. C. C. A.) 131 Fed. 452 (1904), where the same ruling was made as to railroads subject to the Safety Act.

§ 136 (106). Parties subject to the act.-Before the amendments of 1906, enlarging the scope of the act, it had been held that the jurisdiction of the commission only extended to the common carriers described in the section. Section 2 of the act of February 19, 1903, infra, § 422, specifically provided that in any proceeding instituted before the commission or in the courts it should be lawful to include as parties in addition to the carrier all who are interested in or affected by the rule, regulation, or practice under consideration. This is the warrant for the occasional inclusion among parties defendant in proceedings before the commission of natural persons acting as agents of the various carriers in the publication of rates.

The application of the provisions of the act to pipe lines was made by the amendment of 1906. Owners of pipe lines had been held to be common carriers when doing business for the public as such. Griffin v. Pipe Lines, 172 Pa. 580. As the act now stands some of its provisions are made specifically applicable to railroads and others are clearly intended for railroads only. As to the owners of pipe lines who are not common carriers, and who use their pipe lines solely for the transportation of their own products, it would seem that they are not included in the act. Shipments from one place to another in the same territory were first included by the amendment of 1906. This extension of the scope of the act follows the precedent made in the AntiTrust Act, infra, § 464.

§ 137. Common carriers under the act.-This act limits its application with respect to transportation by rail of persons and property to carriers by rail or partly by rail and partly by water, which are "common carriers." The act does not define what will necessarily constitute a person or a corporation a common carrier, nor does it empower the commission to lay down

the tests. It follows that the expression "common carriers?' used by congress means those carriers which are common carriers at common law, and which have complied with such requirements as may have been imposed by constitutional or legislative authority.

This principle was declared and applied by the commission in the case of Manufacturers Railway of St. Louis, 21 I. C. C. R. 304. It was claimed that this company was not in fact a common carrier but a plant facility of a brewing association which latter owned the stock, and a very large proportion of the business of the railway company was that of the brewing association, and the traffic of the latter constituted one-thirtieth of the total traffic of the city of St. Louis. The case was presented on the application of the company that through routes be established to and from points on its lines in St. Louis and from and to points on its lines of each of the defendants railway company and points beyond, also for the fixing of reasonable divisions or absorptions out of the St. Louis rates to be paid to the manufacturer's railway for terminal services rendered by it. The company operated about twenty miles of track of which two and one-half miles were claimed as main track and the remainder as side tracks, switches and yard tracks. Of the total twenty miles six miles were lines from the brewing association, and used in part both for the services of the brewery and the public. It owned and operated four locomotives, and no passenger business or less than car load business originated on its lines. Out of the total of some 42,000 cars handled in the yard some 5,000 were handled by other industries or patrons and all of the remainder for the brewery association. It claimed, and the commission found that it was performing a business of a common carrier for the public, and the commission said that it was not within its authority to pronounce any carrier by rail not to be in fact or in law a common carrier, if it would have been held as such at common law. It was therefore ruled that the company was within the provision of the first section of the act, and that the payment to it of a reasonable and just proportion of the St. Louis rate for terminal services was not unlawful.

While the company was doing business as a common carrier it was also a plant facility. There was nothing in the act however or in any of its amendments, which affected the right of

ownership of a railroad by a shipper or shippers over the lines. That fact, however, did have a bearing on the determination of the amount of allowance of services under the principles declared by the commission in the investigation of "tap lines" and industrial lines (see infra, § 212) and the duty and responsibility, therefore, involved upon the carriers to guard closely these features so as not to make themselves liable under the statute for unjust discrimination or undue preference or advantages.

§ 138 (107). Express companies under the act.-Express companies were not included in the act prior to the amendment of 1906. U. S. v. Moreman, 42 Fed. 488 (1890); Southern Indiana Express Co., 31 C. C. A. 172, 92 Fed. 1022 (1899) affirming 88 Fed. 659.

Before the passage of the Interstate Commerce Act of 1886, the supreme court in the Express Company Cases, 117 U. S. 1, 29 L. Ed. 791 (1886), had decided that railroad companies were not required by usage or the common law to transport express traffic for the independent companies over their lines, and that they were not obliged to do more as express carriers than to provide the public at large with reasonable accommodations, and in the absence of a statute they were not obliged to furnish equal facilities to all express companies.

The commission has considered, in several cases, the regulation of express companies under the act. Thus, it is ruled that while express companies must serve their patrons under similar conditions without discrimination (12 I. C. C. R. 196, and 15 I. C. C. R. 15), it is also held (13 I. C. C. R. 475), that the main object of an express service is expedition; and express rates should not be so low as to attract business which might properly go by freight, and thereby congest and interfere with the service by express, and that the fact that express rates in and out of a particular business locality are higher than those in and out of a competing locality from a common source of supply is not of the same importance as in the case of freight rates, since the wholesaler ordinarily brings his merchandise in by freight and distributes it by freight; and that a comparison of express rates in one locality with those in another is of much greater value than a similar comparison between freight rates since the character of the business and the conditions under which it is trans

acted are more nearly the same. As to the conditions under which Pacific rates were found unreasonable, see 16 I. C. C. R. 32.

It is also ruled that the rates made by express companies upon small packages in competition with the United States mail are not to be taken as standards by which to determine the reasonableness of their rates upon larger packages. 13 I. C. C. R. 475, 16 I. C. C. R. 32. The relation of the express companies to the railroads in the matter of free transportation to their men and material, was discussed in 16 I. C. C. R. 246, and it was decided in American Express Company v. U. S., 212 U. S. 522, 53 L. Ed. 635 (1908), affirming 161 Fed. 606, that the express companies are prohibited from giving free transportation of personal baggage to their officers and employes and members of their families, and to the officers of other transportation companies and members of their families in exchange for passes issued by the latter to the officers of the express companies, by the Elkins Act of 1903 and by the Hepburn Act of 1906, which forbid all transportation of property at less than the published rates; and that the proviso to the Hepburn Act relates solely to the carriage of passengers and does not embrace free transportation by express companies, although by the terms of the act express companies are deemed common carriers.

In cases concerning express companies the commission has applied the same rule which is enforced in the case of other carriers. Thus, it was ruled in 15 I. C. C. R. 53, that it had no jurisdiction over claims for damages for delay in express shipments, as the obligation to deliver promptly and safely was enforced by common law and not by the Interstate Commerce Act. In 17 I. C. C. R. 115, certain express rates from New York city to Boise City, Idaho, were held unreasonable; and it was ruled that express companies as other carriers could not lawfully make a difference in rate based upon the time of the payment of the charges, and that it was a general principle that a through rate should not exceed the lowest combination of locals between the same points. 16 I. C. C. Rep. 394.

§ 139. Sleeping car companies.-These companies were included in the act with express companies in the amendment of 1906. It was ruled, in 16 I. C. C. Rep. 410, that the Pullman company operating sleeping cars at the joint expense of itself and

the railroad company interested was a common carrier, subject to the jurisdiction of the commission; that it was required to publish its rates and the regulations governing the application of such rates; and that these, when published, were subject to the consideration and correction of the commission. In this case the passenger offered a local ticket to an intermediate point and a mileage book beyond for transportation to his destination; thereupon the Pullman agent refused to sell sleeping-car accommodations on the ground that the tariff prohibited selling such accommodations except upon a through ticket, the price of which in this case was greater than the combination of the locals. The commission ruled that the Pullman company was within its rights and declined relief, but at the same time condemned such conditions, saying it was the almost invariable rule of the commission that the through rate should not exceed the combination of the locals.

In 18 I. C. C. Rep. 135, March, 1910, the commission considered the reasonableness of the rates for sleeping cars and reduced the price of the upper berth from St. Paul to Chicago to $1.50 as compared with $2.00 for the lower berth; while the lower berth from St. Paul to Seattle was reduced from $12.00 to $10.00; the upper to $8.50. Two of the commissioners dissented on the ground that existing passenger rates were in favor of the occupant of the sleeping car, and that the existing discrimination was really against the day-coach passenger who did not enjoy the sleeping-car privileges. This order of the commission was modified, 20 I. C. C. Rep. 21, upon the Pullman company offering a general reduction in the rates for upper berths of about twenty per cent as compared with the rates for lower berths and a.reduction also in the rates on long hauls, these reductions to apply all over the country.

§ 140 (108). Under common control, management or arrangement for a continuous carriage. The rulings of the commission as to what constitutes a common control, management or arrangement for a continuous carriage have been affirmed by the courts. The test of subjection to the act is through routing in interstate commerce. When a carrier unites with one or others in making a rate for interstate traffic and a through bill is issued therefor, it is subject to the act. In C., N. O. & T. P. R. Co. v. Commission, 162 U. S. 184, 40 L. Ed. 935 (1896), the supreme