of the statute results from, on the one hand, an indisputable jurisdiction over the prescribed delivery into suitable pens, the same having to be treated as an inseparable part of the rail transportation to be furnished by the railroads without separate charge, and, on the other hand, the assumption that we are without jurisdiction over respondent in performing such part of the transportation and its charges therefor which must be included in the line-haul rate. The Packers and Stockyards Act, August 15, 1921, expressly provides that nothing therein shall affect our jurisdiction or confer upon the Secretary of Agriculture concurrent jurisdiction over any matter within our jurisdiction. It is plain that Congress did not intend a neutral zone of no jurisdiction over respondent's charges and it is equally plain from the statement above quoted from Atchison, T. & S. F. Ry. Co. v. United States, supra, that jurisdiction over respondent's charges to "the place where transportation ends" was left with us.

Pursuant to the regulatory processes of the Interstate Commerce Act, respondent's charge for unloading livestock has been increased from 25 cents per car, where it stood for many years, to its present level of $1.25. Following the amendment contained in section 15 (5) of the act, the trunk lines filed supplements to their tariffs absorbing the increase from 25 cents to 50 cents, involved in Adams v. Mills, supra. In Live Stock Loading and Unloading Charges, (1921) 61 I. C. C. 223, a further increase to $1 was authorized. In 1923 and subsequent to the sublease of its railroad to the River road, which is here asserted as rendering respondent no longer a common carrier subject to the act, our jurisdiction was invoked, and exercised, in respect of a proposed increase from $1 to $2. Following hearing upon protest, the proposed increase was found not justified. Livestock Loading and Unloading Charges, 83 I. C. C. 248. Later respondent filed a supplement to its tariffs proposing to increase the charge to $1.25, which was not protested and became effective December 14, 1934. These several increases in respondent's charges show that our jurisdiction has been availed of, and has been exercised, very recently.

Respondent's second principal contention is that, since it performs the service of loading and unloading, as the agent of the line-haul carriers, it is not a common carrier itself. This contention, already fully discussed, is shown to be without merit by numerous decisions of the Supreme Court. Missouri Pac. R. Co. v. Reynolds-Davis Grocery Co., supra; United States v. Union Stock Yard, supra.

As above mentioned, in Adams v. Mills, supra, the Supreme Court said that it did not follow from the status of respondent as a common carrier "that it could not act as an agent of the line-haul carriers, nor that it was entitled to collect a part of its charges from the shippers," citing Missouri Pac. R. Co. v. Reynolds-Davis Grocery Co., supra. The issue under consideration was as to the lawfulness of the practice whereby a charge for unloading livestock other than as embodied in the line-haul rates, was exacted from shippers. The matter of immediate interest is the court's reference to the last-mentioned case, in which a switching carrier, whose published switching charge was absorbed by the line-haul carrier, was held to be agent for the line-haul carrier in completing delivery. This analogy, drawn between respondent's service and that of a switching carrier, in completing a transportation is, we believe, particularly apposite here. Although a measure of competition exists between carriers, including switching carriers, one thing that made regulation of their charges necessary was that, in respect of a great deal of their service, competition was absent. While a switching carrier, making delivery of a shipment to an

industry located on its line, is agent of the line-haul carrier, its switching charge is subject to regulation. Under the conditions existing at Chicago, respondent's yards are substantially the sole terminal in Chicago for the receipt of livestock and, as to the unloading of shipments destined to the yards, the railroads have to employ respondent to perform the service. Consequently the freedom of bargaining commonly entering into the creation of the usual relationship of principal and agent is not possible. Respondent is agent of the line-haul carriers precisely as is a switching carrier completing delivery for a line-haul carrier because it, too, is a common carrier whose charges are subject to regulation.

We are of opinion and find that respondent in the performance of these unloading and loading services is a common carrier subject to the provisions of the Interstate Commerce Act and as such is required to file tariffs with us covering its charges for unloading and loading livestock at its public stockyards in Chicago.

We further find that the schedules in which it proposes to cancel its tariffs on file with us are not justified. An order will be entered requiring cancelation of the suspended schedules and discontinuing this proceeding."

AITCHISON, Commissioner, concurring:

Accepting the ruling on evidence to be the law of the case, as it has been passed upon by the Commission, I concur in the result. However, I believe the objection to the testimony offered should have been overruled, as it appears to me to be relevant and material. What the decision would be with the proffered evidence before us cannot now be determined.

COMMISSIONER MEYER dissents for reasons stated in his dissent in Livestock Loaded and Unloaded at Chicago, 213 I. C. C. 330.

EASTMAN, Commissioner, dissenting:

The issue in this case is not likely to be set at rest until it is passed upon by the Supreme Court, and without doubt it will be adequately presented to the court by the parties in interest. I shall therefore state my conclusions briefly, without undertaking to support them by any lengthy argument or citation of authorities.

The yard company, in my judgment, is not now a common carrier by railroad. Past decisions of the Supreme Court that it was such a carrier rested upon its conjunction in ownership, operation, and service with a line of railroad. Such conjunction ceased when the line of railroad was leased, practically in perpetuity, to the New York Central.

The facts that the yard company has a remote reversionary interest in part of the line of railroad, and that it has charter power to operate a railroad, including the right of eminent domain, do not

& COMMISSIONER MEYER dissented and his dissent is shown in 213 I. C. C. at page 342. COMMISSIONERS AITCHISON, EASTMAN, LEE, and TATE did not participate in the disposition of this proceeding.

make it a carrier by railroad. That is dependent upon what it does. Such attendant circumstances are at times of significance in determining the nature of what is done, but not otherwise. Nor is the yard company a carrier by railroad because, in the lease, it covenants to exercise its right of eminent domain at the request and for the benefit of the lessee. That covenant is, in substance and effect, equivalent to a transfer of the right to the lessee along with the property. The loading and unloading of the livestock at the stockyards is a railroad service, and we have full power to regulate the charges which are levied upon shippers for this service, whether they are separate charges or included with the line-haul rates. In such regulation we may be guided by the reasonable cost of the service, if we find its actual cost to be unreasonable. The fact, however, that it is the duty of a railroad to deliver livestock at public stockyards into pens, and to make sure that the latter are "suitable", does not make the pens railroad premises, any more than the delivery by a motor carrier of shipments into the home or place of business of a consignee makes that home or place of business motor-carrier premises. There is nothing to prevent a railroad, where it has the duty of loading and unloading freight, from performing the duty through an agent, and that is often done. In no instance that I know of, other than that now before us, has it been contended that an agent so employed by a railroad for the loading and unloading of freight is, because of such agency and employment, a carrier by railroad. Here, however, the railroads have no option save to employ the yard company. The latter insists on performing the loading and unloading service and is in a position to enforce its desires in that respect. The result is that the railroads have no opportunity to perform the service directly with their own employees or, by obtaining competitive bids or similar procedure, to employ whatever agent is found willing to undertake the service for the lowest price. There is fear, therefore, that unless we can regulate the charges of the yard company, it will exact from the railroads exorbitant compensation which will, in turn, afford the railroads a reason for demanding an increase in their line-haul rates on livestock to Chicago.

This fear, I believe, underlies the decision of the majority and I am not prepared to say that it is a baseless or unreasonable fear, if the charges of the yard company for this service are to go unregu lated. That is, of course, not a reason for finding that the yard company is a carrier by railroad, but only goes to show that a situation exists which may be in need of remedy, perhaps by further legislation.

It is by no means clear, however, even if the yard company is found not to be a carrier by railroad, that the charges which it makes

against the railroads for the loading and unloading service will not be subject to public regulation. While that question is not for us to decide, it is so linked and involved with the question that is in issue that I venture to discuss it briefly.

Why is it that the yard company is in a position to insist upon loading and unloading the livestock for the railroads and therefore to enjoy a virtual monopoly of this employment? The answer to this question, I take it, lies in the fact that the yard company is a public stockyards and that the loading and unloading of the livestock is so intimately related to the proper conduct of that public business that it cannot well be divorced therefrom and placed under separate supervision. As I see it, therefore, although the law has made the loading and unloading of the livestock a duty of the railroads, it is a duty which must be performed, when the livestock is delivered to or received from a public stockyards, through the agency of those who are in charge of the stockyards, because it is essentially a part of the stockyards service.

While this may seem to be an anomalous situation, it is one which need give rise to no overlapping of jurisdictions or difficulties of administration. So far as the shippers are concerned, the loading or unloading of the livestock is a railroad service the compensation for which must ordinarily be included in the line-haul rates, and we have full jurisdiction over those rates, and also over any separate charges which the railroads may at times assess for the service. So far as the railroads are concerned, the loading or unloading is a service which must be performed for them, at a public stockyards, by those in charge of the stockyards, because it is an inextricable part of stockyards service. It follows, therefore, that the charges made against the railroads for such service at a public stockyards are subject to the jurisdiction of the Secretary of Agriculture under the Packers and Stockyards Act.

From an administrative standpoint, the division of duties which would result from this construction of the law would simplify matters, in comparison with the situation which will result from the decision of the majority. Under the latter decision, the yard company will be partly under the jurisdiction of this Commission and partly under the jurisdiction of the Secretary of Agriculture, involving much duplication of work. On the other hand, under the construction of the law which I believe to be sound, the yard company would be wholly under the jurisdiction of the Secretary of Agriculture.

Carriers employ agents for many purposes and under many different conditions. No uniform rule can be applied in determining the legal status of such agents, for it varies with the circumstances.

The conclusions which I have here reached as to the status of the yard company as a railroad agent are governed by the particular circumstances of this case.

I may add that I believe the Commission was in error in its ruling, described in the majority report, with respect to the admissibility of certain evidence proffered by respondent.

PORTER, Commissioner, dissenting:

The fundamental contention of the yard company is that it is no longer a common carrier subject to the Interstate Commerce Act, and therefore is not required by the provisions of that act to file tariffs with the Commission. The requirement of section 6 as to printing, posting, and filing tariffs applies only to "common carriers subject to the provisions of this Act." If the yard company is not now a common carrier subject to the act it may lawfully cancel the tariffs. Section 1 of the act, in paragraph 1, provides that its provisions shall apply to common carriers engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water, etc., and to certain transportation by pipe line, etc., in interstate commerce, etc. Paragraph 3 of section 1 provides that: The term "common carrier" as used in this Act shall include all pipe-line companies; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation as aforesaid as common carriers for hire.

The same paragraph also defines the terms "railroad" and "transportation" by providing that those terms as used in the act shall include certain things, but of course those definitions do not give the Commission jurisdiction over types of common carriers other than those specified earlier in paragraph 3 and in paragraph 1.

If the yard company is subject to the act at all it must be because it is a common carrier engaged in the transportation of property wholly by railroad, since there is no intimation that it is so engaged by any of the other means specified in section 1.

The record in the present case discloses that the yard company does not now operate any railroad tracks or equipment. In other words, I cannot find that it is literally within the provisions of section 1, paragraph 1, as a common carrier engaged in the transportation of passengers or property by any of the means there specified.

In United States v. Union Stock Yard & T. Co. of Chicago, 226 U. S. 286, the Supreme Court held that the yard company was then a common carrier subject to the act. In so holding the court rested its decision upon the fact that the yard company and the Chicago Junction Railway were closely affiliated by the ownership of prac tically all of the shares of both by the New Jersey holding company.