ness which might properly go by freight, and thereby congest and interfere with the service by express.67 Under the Act as it originally read, confined primarily to railroad service, only an express business conducted by a railroad company was held subject to its provisions.68 Independent express companies were not made subject to the Commission until the amendment of 1906; but they are now as fully subject to the Act as any of the carriers therein defined.69 That expressmen are responsible as carriers, not merely as forwarders was settled long ago— not, however, until after much litigation.70 § 167. Sleeping-car companies. Following the analogy of express service the courts have held that the railroads may make exclusive arrangements with one company for the provision of sleeping cars."1 But the parallelism is not perfect; for, although the express company is held a carrier of goods, the sleeping-car company is not a carrier of passengers. It provides, to be sure a vehicle for passengers to ride in, and accommodations for their comfort while in course of transportation. But the railroad company and not the car company undertakes and is responsible for the transportation, and has entire charge of the journey. Although not a common carrier, the sleeping-car company is in a public employment.72 Sleeping-car service when provided by separate companies was first made subject to the Commission in 1906. If the railroad was itself providing the sleeping cars, its rates might be subject to the jurisdiction of the Commission under the original Act, but not otherwise.73 Now apparently the arrangements between sleeping-car 67 R. R. Com'rs of Fla. v. S. Exp. Co., 28 I. C. C. 634. 68 Re Express Companies, 1 Int. Com. Rep. 22, 1 I. C. C. 349. Kindel v. Adams Exp. Co., 11 I. C. C. 475. 70 Buckland v. Adams Express Co., 97 Mass. 124, 93 Am. Dec. 68. 71 Chicago, St. L. & N. O. R. R. v. Pullman So. Car Co., 39 U. S. 79, 35 L. ed. 97, 11 Sup. Ct. 490. 72 Lemon v. Pullman P. Car Co., 52 Fed. 262. 73 See Worcester Excursion Car Co. v. Pa. Ry., 2 Int. Com. Rep. 792, 3 I. C. C. 577. companies and railroad companies as to the use of the cars and the compensation therefor are subject to the power of the Commission.74 § 168. Parlor-car service. The business of running drawing-room cars in connection with ordinary passenger cars has become one of the common incidents of passenger traffic on the leading railroads of the country.75 Parlor-car service when performed by railroads is part of the service offered in passenger transportation, and as such was plainly subject to the Act from the outset. In one early case the Commission went very fully into the parlor-car service then provided by the New York, New Haven & Hartford Railroad between Boston and New York, and made favorable findings upon the rates and practices in relation thereto.76 Whether such service when rendered by other companies is made subject to the jurisdiction of the Commission by the amendments of 1906, which, while only specifying sleepingcar companies, spoke later generally of auxiliary services in the course of transportation by whomsoever provided might perhaps have been arguable. But at all events, the Commission has not as yet suggested that there is any difference to be respected between sleeping cars and other special cars. § 169. Dispatch lines. By the doctrines prevalent in the federal courts, the railroads may make exclusive arrangements with car lines of special character, such, for example as live stock transportation companies for the carriage of cattle." Therefore, the Commission held in any early decision that the railroads were under no obligation to perform without discrimination haulage for rival concerns operating stock 70 Hewins v. New York, N. H. & H. R. R., 10 I. C. C. Rep. 221. See Pullman Co. v. Luke, 203 Fed. 1017. 74 See Corporation Commission of Oklahoma v. A., T. & S. F. Ry. Co., 25 I. C. C. 120. 75 Thorpe v. New York C. & H. R. R. R., 76 N. Y. 407. 77 United States ex rel. Morris v. D., L. & W. R. R., 40 Fed. 101. cars. 78 Freight lines operating as dispatch companies are common carriers, if they arrange for keeping possession of the freight transported en route.79 But, if the fast freight line is in reality operated by a combination of railroads, the dealings will be held to be with the railroads themselves jointly.80 By a practice now prevailing, fruit is carried in refrigerator cars, which are arranged to contain ice; these cars were formerly provided in small numbers by the railroads themselves; but they are now very largely owned by private corporations. Though not technically a carrier, the refrigerator car line is carrying on a business which is of public importance in connection with the railway, and like the sleeping-car company, it is, therefore, engaged in a public employment which, though not identical with that of a common carrier, is analogous to it, and imposes similar legal obligations upon the corporation. The same thing would, of course, be true of a tank car line; and as a matter of fact the tank car lines seem usually to be owned or controlled by outside concerns.82 It should be emphasized again in this connection that all services involved in the transportation of goods by rail are by the later amendments to the Act made subject to the jurisdiction of the Commission. And this is so whether the services are conducted by the railroad itself or by any other parties, so that the private cars in public service are plainly subject to the orders of the Commission. § 170. Pipe lines. As amended in 1906 the Act to regulate commerce impresses the obligation of common carriers upon all pipe lines engaged in the transportation of oil in interstate com78 Burton Stock Car v. C., B. & Q. & W. R. Co., 119 N. C. 693, 56 Am. R. R., 1 Int. Com. Rep. 329, 1 I. C. C. St. Rep. 628, 25 S. E. 854. 132. " Transportation Co. v. Block Bros., 86 Tenn. 392, 6 Am. St. Rep. 847, 6 S. W. 881. 80 Rocky Mt. Mills v. Wilmington 81 See Re Transportation of Fruit, 10 I. C. C. 360. 82 See Rental Charges on Private Cars, 31 I. C. C. 255. 83 merce. It had previously been held in the courts that such pipe lines might constitutionally be given eminent domain, as tube highways open to public use. It apparently makes no difference if the pipe lines in question were built over privately acquired right of way, and transport only their own oil; at all events, all the pipe lines carrying oil from one State to another have been considered by the Commission common carriers subject to the Act. And the United States Supreme Court has just decided that pipe lines which have never, as a matter of fact, undertaken to carry for anyone else than their owners are affected with a public interest, if the business is conducted on the basis of insisting that all comers shall sell their oil previously to its being transported to the concern which operates the system.84 This decision is so recent that the Commission has not put into effect any policy of regulation which has as yet come up for decision. § 171. Telegraph lines. When the law first had to deal with the telegraph, the disposition of the courts was to put it under the class of carriers; but it was soon seen that this technically was not correct.85 However, it has always been recognized that telegraph lines are plainly public services, potentially subject to governmental regulation through Commission action.86 Their business in transmitting messages equally clearly constitutes interstate commerce, for the regulation of which Congress may provide.87 This situation was 83 West Virginia Transp. Co. v. Volcanic O. & C. Co., 5 W. Va. 382. "A pipe line company is a common carrier bound to receive and transport for all persons alike all goods intrusted to its care." Giffin v. South West Pa. Pipe Lines, 172 Pa. St. 580, 33 Atl. 578. 84 United States v. Ohio Oil Co., 234 U. S. 548, 34 Sup. Ct. 956. See also the opinions in the Commission in the original proceedings. In re Pipe Lines, 24 I. C. C. 1. 85 See the phraseology in Western Union Telegraph Co. v. Hamilton, 36 Tex. Civ. App. 300. 86 See the language in Green v. Telegraph Co., 136 N. C. 489, 49 S. E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955. 87 See the theories advanced in Western Union Telegraph Co. v. covered by the Mann Act of 1910 by putting telegraph and cable service (whether wire or wireless) under the jurisdiction of the Commission; and since that time it has been recognized that henceforth the regulation of these services belongs exclusively to the Commission.88 § 172. Telephone systems. The demands of the commerce of the present day make the telephone a necessity. It has long been recognized that all people should have access to this service upon equal terms.89 At one time it was insisted that as the telephone was patented its owners could do as they pleased. But it has been agreed almost from the beginning that the service provided by the telephone companies is public in character. Indeed, the best discussion of the essential nature of public calling is to be found in the series of cases brought before the courts not long ago to establish the invalidity of arrangements made by the telephone companies giving special privileges to certain telegraph companies.90 Occasion arose some time ago to say that Congress might regulate this business where it had jurisdiction."1 Telephone service was made subject to the Act, with special provisions relating thereto, by the amendments of 1910. Since then the Commission has had occasion to deal with this service only a few times; but there have been important developments in this field recently.92 § 173. Government services. It should be noted that the Commission has had specially conferred upon it from time to time jurisdiction over Call Publishing Co., 181 U. S. 92, 45 L. ed. 765, 21 Sup. Ct. 561. 88 H. B. Williams Co. v. Western U. T. Co., 203 Fed. 140. 39 State v. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 85 Am. St. Rep. 870. Co. v. Baltimore & O. Telegraph 91 Chesapeake & P. Telephone Co. v. Manning, 186 U. S. 238, 46 L. ed. 1444, 22 Sup. Ct. 881. 92 Local Telephone Service at Pitts*See Chesapeake & P. Telephone burg, 27 I. C. C. 622. |