Statement of the Case. 242 U.S. abstain, from refusing upon reasonable request and reasonable notice therefor to provide and furnish tank cars to the complainants herein for interstate shipments of petroleum products, which refusal has been found in said report to be in violation of the provisions of the act to regulate commerce and amendments thereto. "It is further ordered, That said defendant be, and it is hereby, notified and required to provide, on or before August 15, 1915, and thereafter to furnish, upon reasonable request and reasonable notice, at complainants' respective refineries, tank cars in sufficient number to transport said complainants' normal shipments in interstate commerce. "And it is further ordered, That this order shall continue in force for a period of not less than two years from the date when it shall take effect." The time of compliance was subsequently extended to November 15, 1915. In the meantime, the railroad company brought this suit to enjoin the enforcement of the order. A preliminary injunction was prayed and, upon a hearing by three judges, was granted. 227 Fed. Rep. 911. To review that action this appeal is prosecuted. The Commission made quite elaborate findings, which, however, we do not think it is necessary to quote in full. It found the production of the oil companies, and the following additional facts: (1) That 91% of the oil produced by the Paraffine Company was shipped in tanks, 12% in barrels loaded in cars other than tank cars, and 72% in pipe lines, while of the shipments made by the other company 86.8% moved in tank cars, 4.7% in barrels, and 8.5% in pipe lines. (2) For a long time the bulk of refined oil in the United States has been shipped in tank cars and at present 91% is so transported. The railroad has been using tank cars for twenty-five years. The capacity of the cars is found, and they are so constructed that they may be rapidly 242 U. S. Statement of the Case. loaded at the refineries, and jobbers and dealers in refined oil throughout the country have the proper and necessary facilities for unloading the cars by gravity at their various stations. (3) The only other method of transporting oil is in barrels or similar containers, the cost of which is from 32 to 334 cents a gallon above the cost of transportation in tank cars, and this makes such method of transportation practically prohibitive, and the refusal of the railroad to furnish an adequate supply of tank cars would tend to drive out of business refiners who are unable to supply themselves with enough cars to move their own products; and witnesses for the railroad admitted that tank cars are an economic necessity for the transportation of refined products. (4) In 1887 the railroad acquired 1308 tank cars, some of which have since been sold to independent refiners, but it owned at the time of the hearing 499 cars, of which 482 are furnished to shippers of oil located on its lines. (5) At the time of the hearing the Paraffine Company owned 54 tank cars and the Crew-Levick Company 57; and it was testified that these companies for five or six years have daily made inquiry for the delivery of cars to them and that formal orders for cars have been constantly on file in the railroad's offices. (6) On November 11, 1912, shortly before the filing of the complaints before the Commission, complainants served notice upon the railroad company, requesting it to furnish a sufficient number of tank cars to ship respectively 450,000 gallons of oil per month from the Paraffine Company's refinery at Titusville and 600,000 gallons per month from the Glade (Crew-Levick Co.) Oil Works at Warren. To the request of complainants, the railroad company replied: "We beg to say that the railroad company is not pre Argument for the United States. 242 U. S. pared to increase its present tank-car equipment but is prepared to transport the commodities in question when properly contained in barrels or other similar containers at rates that are fair, reasonable, and nondiscriminatory." The Solicitor General, with whom Mr. Robert Szold was on the brief, for the United States: The railroad is under a legal duty to furnish oil tank cars upon reasonable request. The common law requires the common carrier to furnish reasonably adequate facilities for the transportation of the class of goods which it professes to carry. Covington StockYards Co. v. Keith, 139 U. S. 128, 133; Hutchinson on Carriers, 3d ed., § 495; Beale and Wyman, Railroad Rate Regulation, 2d ed., § 930. The obligation is not simply to devote the specific property on hand to the public use, but to render adequate transportation service. Wyman on Public Service Corporations, §§ 253, 260, 797; The Southwark, 191 U. S. 1, 9. See also Lukrawka v. Spring Valley Water Co., 169 California, 318, 329-332; Haugen v. Albina Light & Water Co., 21 Oregon, 411; Columbus v. Mercantile Trust Co., 218 U. S. 645, 659; Leavell v. Western Union Telegraph Co., 116 N. Car. 211, 221; United States Telephone Co. v. Central Union Telephone Co., 202 Fed. Rep. 66. Additional equipment must be provided if necessary to accommodate reasonable public demands. Branch v. Wilmington &c. R. R. Co., 77 N. Car. 347, 350; Cobb v. Illinois Central R. R. Co., 38 Iowa, 601, 623; Illinois Central R. R. Co. v. River & Coal Co., 150 Kentucky, 489, 491, 493; Yazoo & Miss. Valley R. R. Co. v. Blum Co., 88 Mississippi, 180, 191, 192; Ocean Steamship Co. v. Savannah Supply Co., 131 Georgia, 831; People v. St. Louis &c. Railroad Co., 176 Illinois, 512. Special facilities such as tank cars must be provided even though previously the railroad has not held itself 242 U. S. Argument for the United States. out so to do. Baker v. Boston & Maine R. R. Co., 74 N. H. 100, 110; Kansas Pacific Ry. v. Nichols, 9 Kansas, 235; State v. Railway Co., 47 Ohio St. 130, 139; Railroad Co. v. Pratt, 22 Wall. 123; Covington Stock Yards Co. v. Keith, supra; Loraine v. Pittsburg &c. R. R. Co., 205 Pa. St. 132; Atlantic Coast Line R. R. Co. v. Geraty, 166 Fed. Rep. 10; Mathis v. Southern Ry., 65 S. Car. 271; Cincinnati &c. Ry. Co. v. Fairbanks & Co., 90 Fed. Rep. 467. This railroad has held itself out specifically to carry oil in tank cars. In its answer before the Commission it alleged that in the schedules of rates filed for carrying articles in tank cars it stated that no obligation was assumed to furnish tank cars. But the fact of such disclaimer does not appear from the record in the cases at bar. The obligation seems to be a matter of law, which follows as a necessary incident from the fact of the holding out and the public nature of the carrying business. See Lloyd v. Haugh, 223 Pa. St. 148, 154. The Commission's finding of fact that the railroad has held itself out to carry oil in bulk and in tank cars is not reviewable. United States v. L. & N. R. R. Co., 235 U. S. 314, 320. The duty is clearly imposed by the Hepburn Act of June 29, 1906, c. 3591, 34 Stat. 584, § 1. Whatever be the duty at common law, here is an obligation of the statute to provide the required cars-not merely furnish such cars as chance to be on hand. Recent decisions in this court recognize the obligation imposed. The comprehensive character of the amendment was indicated in Chicago &c. Ry. Co. v. Hardwick Elevator Co., 226 U. S. 426. The case has been followed many times: Yazoo &c. R. R. Co. v. Greenwood Grocery Co., 227 U. S. 1; St. Louis &c. Ry. Co. v. Edwards, 227 U. S. 265; M., K. & T. Ry. Co. v. Harris, 234 U. S. 412, 418; Menasha Co. v. Chicago & Northwestern Ry., 241 U. S. 55, 58; Ellis v. Interstate Com. Comm., 237 U. S. 434. The evil to be remedied by the amendment of 1906 Argument for the United States. 242 U. S. was in part the public injury due to insufficiency of the railroad's supply of tank and refrigerator cars. Scofield v. Lake Shore &c. Ry. Co., 2 I. C. C. 90, 117 (1888); In re Transportation of Fruit, 10 I. C. C. 360, 373 (1904); Special Message by the President, of May 4, 1906; Report of the Commissioner of Corporations on the Transportation of Petroleum, 1906, House Doc. 812, 59th Cong., 1st sess.; see Sen. Doc. 428, id.; Cong. Rec., vol. 40, pt. 7, p. 6358; Cong. Rec., 59th Cong., 1st sess., vol. 40, pt. 2, p. 1958. The legislative history of the amendment of 1906 shows that it was designed to meet this evil. Cong. Rec., 59th Cong., 1st sess., vol. 40, pt. 2, pp. 1764, 1765, 2005, 2109, 2155; id., pt. 3, pp. 2081, 2103, 2104, 2109, 2155, 2241, 2260; id., pt. 7, pp. 6374-6375, 6376, 6438, 6440, 6570. The Commission has power to order the carrier to comply with a reasonable request to furnish oil tank cars. In support of the Commission's power, the Government relies particularly upon §§ 1, 12, and 15, as amended. Section 12 imposes upon the Commission the authority and duty "to execute and enforce the provisions of this act." Act of March 2, 1889, c. 382, 25 Stat. 858. One of the provisions which it is thus made the duty of the Commission to enforce is § 1, requiring railroads to furnish cars. The very purpose of imposing upon the carrier in 1906 the duty to furnish cars was to give the Commission jurisdiction to enforce that duty. This seems clear from a simple reading of the statute, as also from the debates, supra. It is settled that a governing principle in the construction of the Commission's powers under the amendment of 1906 is the recognized purpose of the amendment to grant speedy and efficacious remedies for the enforcement of the duties imposed. Baltimore & Ohio R. R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 498, 499. The amendment of 1910 serves to remove all doubt. |