234 U.S.

Argument for Louisiana R. R. Comm.

Pennsylvania Ry. Co., 230 U. S. 247, 264; Solvay Process Co. v. D., L. & W. R. R. Co., 14 I. C. C. 246; Ulmer v. Railway Co., 98 Maine, 581; 57 Atl. Rep. 1001; Union Stock Yard Case, 226 U. S. 286; United States v. Balt. & Ohio R. R. Co., 231 U. S. 274.

Mr. Wylie M. Barrow, with whom Mr. Ruffin G. Pleasant, Attorney General of the State of Louisiana, was on the brief, for the Railroad Commission of Louisiana, intervenor and appellee:

The interest of the State of Louisiana in these cases lifts them from the category of mere private controversy and places them on the plane of public questions.

Many important railroads now operating in Louisiana originated as tap lines.

There is a public necessity for the tap line railroads.

The questions here presented, being public in their nature, and not merely private controversy, are of great interest to the people of the State of Louisiana.

In support of the contentions of the State, see Agee v. Louis. & Nash. R. R. Co., 152 Alabama, 344; Amos Kent Brick Co. v. Tax Collector, 114 Louisiana, 862; Butte & Pac. R. Co. v. Montana Union Ry., 16 Montana, 504; Caldwell v. Richmond &c. R. Co., 89 Georgia, 550; Central Yellow Pine Ass'n v. Vicksburg &c. R. R. Co., 10 I. C. C. 193; Chi., B. & Q. R. R. Co. v. Cutts, 94 U. S. 155; Chi., B. & Q. R. Co. v. Porter, 43 Minnesota, 527; De Camp v. Hibernia Ry. Co., 47 N. J. Law, 43; Denver &c. R. Co. v. Cahill, 8 Colo. App. 158; Re Divisions of Joint Rates, 10 I. C. C. 385; Dock Co. v. Garrity, 115 Illinois, 155; Lake Superior R. R. Co. v. United States, 93 U. S. 442; McCloud Lumber Co. v. So. Pac. Co., 24 I. C. C. 89; National Dock Co. v. Central R. R. Co., 32 N. J. Eq. 755; N. Y. Cent. R. R. Co. v. Lockwood, 17 Wall. 357; Phillip v. Watson, 63 Iowa, 28; 18 N. W. Rep. 859; Star Grain Co. v. Atchison &c. Ry. Co., 17 I. C. C. 338; S. C., 14 I. C. C. 364; Tap Line

Cases, 23 I. C. C. 277; Re Transportation Hutchinson Salt, 10 I. C. C. 1; Ulmer v. Lime Rock Ry. Co., 98 Maine, 579; United States v. Union Stock Yard, 226 U. S. 286; Winona R. R. Co. v. Blake, 94 U. S. 180.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

A preliminary objection is made to the jurisdiction of the Commerce Court in that the order of the Commission is not reviewable because merely of a negative character. The Commerce Court examined this question and in view of the amended order of October 30, 1912, reached the conclusion that the order was affirmative in its nature and of a character permitting of review by proper proceedings in that court under the act giving it jurisdiction in such cases. We find no reason to differ with this conclusion and are of opinion that the Commerce Court had jurisdiction in the case.

It is further insisted upon the authority of Procter & Gamble Co. v. United States, 225 U. S. 282, and other cases in this court which have followed that decision, that in the present cases the decision rests upon conclusions of the Commission as to matters of fact only, which are within the sole jurisdiction of that body and not reviewable in the courts. But we shall consider the case upon the findings of fact preceding this opinion, which are identical with those made by the Commission, and test the conclusions reached as matters of law, giving proper consideration to matters of fact which are not in dispute.

The final decree of the Commerce Court vacated and set aside the portion of the Commission's order reading as follows:

"That the tracks and equipment with respect to the industry of the several proprietary companies are plant facilities, and that the service performed therewith for the

respective proprietary lumber companies in moving logs to their respective mills and performed therewith in moving the products of the mills to the trunk lines is not a service of transportation by a common carrier railroad, but is a plant service by a plant facility; and that any allowances or divisions out of the rate on account thereof are unlawful and result in undue and unreasonable preferences and unjust discriminations, as found in the said reports;

"3. It is Ordered, That the principal defendants (trunk lines, naming them], be, and they are hereby notified and required to cease and desist, and for a period of two years hereafter, or until otherwise ordered, to abstain from making any such allowances to any of the above named parties to the record in respect of any such above described service."

The question now before this court is the correctness of this decree.

A perusal of the findings and orders of the Commission make it apparent that the grounds of decision upon which it proceeded were two, first, that these roads were mere plant facilities, second, that they were not common carriers as to proprietary traffic. The Commission held that before incorporation they were plant facilities and that after incorporation they remained such. What the Commission means by plant facilities may be gathered from a consideration of some of its decisions. In General Electric Co. v. N. Y. C. & H. R. R. R., 14 I. C. C. 237, a network of interior switching tracks constructed to meet the necessities of the business, were held to be mere plant facilities. The same principle was applied to the internal trackage of large industrial plants in Solvay Process Company v. Delaware, Lackawanna & Western R. R. Co., 14 I. C. C. 246. These systems of internal trackage were not common carriers, and, however extensive, were intended to and did furnish service for the plants which owned and

operated them. But a common carrier performing service as such, regulated and operated under competent authority, as observed by Commissioner Prouty in Kaul Lumber Co. v. Central of Georgia Railway Co., 20 I. C. C. 450, 456, is no longer a mere appendage of a mill "but a public institution." It thus becomes apparent that the real question in these cases is the true character of the roads here involved. Are they plant facilities merely or common carriers with rights and obligations as such?

It is insisted that these roads are not carriers because the most of their traffic is in their own logs and lumber and that only a small part of the traffic carried is the property of others. But this conclusion loses sight of the principle that the extent to which a railroad is in fact used, does not determine the fact whether it is or is not a common carrier. It is the right of the public to use the road's facilities and to demand service of it rather than the extent of its business which is the real criterion determinative of its character. This principle has been frequently recognized in the decisions of the courts. We need not cite the many state cases in which it has been so held, in view of the fact that the same principle was laid down in the late case of Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211. In that case the Supreme Court of Wisconsin sustained the extension of a spur track to reach the quarries and lime kilns of a single company as a public use authorizing the exercise of the right of eminent domain, and this court affirmed the judgment. Dealing with the contention that the Wisconsin statute was invalid because it authorized action appropriating property upon the exigency of a private business, this court said (p. 221):

"A spur may, at the outset, lead only to a single industry or establishment; it may be constructed to furnish an outlet for the products of a particular plant; its cost may be defrayed by those in special need of its service at the

time. But none the less, by virtue of the conditions under which it is provided, the spur may constitute at all times a part of the transportation facilities of the carrier which are operated under the obligations of public service and are subject to the regulation of public authority. As was said by this court in Hairston v. Danville & Western Rwy. Co., supra (p. 608) [208 U. S. 598]: 'The uses for which the track was desired are not the less public because the motive which dictated its location over this particular land was to reach a private industry, or because the proprietors of that industry contributed in any way to the cost.' There is a clear distinction between spurs which are owned and operated by a common carrier as a part of its system and under its public obligation and merely private sidings. See De Camp v. Hibernia R. R. Co., 47 N. J. Law, 43; Chicago &c. R. R. Co. v. Porter, 43 Minnesota, 527; Ulmer v. Lime Rock R. R. Co., 98 Maine, 579; Railway Company v. Petty, 57 Arkansas, 359; Dietrich v. Murdock, 42 Missouri, 279; Bedford Quarries Co. v. Chicago &c. R. R. Co., 175 Indiana, 303."

The Commission has recognized this principle as applicable to tap lines, for in the Central Yellow Pine Association v. The Vicksburg, Shreveport & Pacific R. R. Co., 10 I. C. C. 193, 199, it said:

"While these logging roads are almost or quite without exception mill propositions at the outset, built exclusively for the purpose of transporting logs to the mill, they soon reach a point where they engage in other business to a greater or less extent. As the length of the road increases, as the lumber is taken off and other operations obtain a foothold along the line, various commodities besides lumber are transported, and this business gradually develops until in several cases what was at first a logging road pure and simple has become a common carrier of miscellaneous freight and passengers. Almost all these lines, even where they are run as private enterprises,