298 F. 373 | 9th Cir. | 1924
The United States, at the request of the Interstate Commerce Commission brought an action to recover from the defendants, the board of state harbor commissioners of -the state of California, penalties alleged to have been incurred by them for violations of the federal Safety Appliance Act of March 2, 1893, 27 Stat. 531 (Comp. St. §§ 8605-8612), and the amendments thereto, committed in the operation of the State Belt Railroad, a railroad traversing the San Francisco harbor front and belonging to the state. The defendants answered, denying the jurisdiction, in that the suit was in fact brought against the state' of California and a political and governmental agency of the state. The answer also denied that the board was a cdmmon carrier, or engaged in interstate commerce by railroad,
In brief, the evidence shows that the Belt Railroad is engaged in business as a common carrier, that it carries cars for hire, that it is one of the connecting links between consignors and consignees of freight in interstate traffic, and that its services are open to the public. The case is not unlike that of United States v. Brooklyn Terminal, 249 U. S. 296, 39 Sup. Ct. 283, 63 L. Ed. 613, 6 A. L. R. 527. The Terminal operated a union freight station under individual contracts with ten interstate railroads and several steamship companies, receiving from the railroads carload and less than carload freight, and transporting the same from their termini to its Brooklyn docks for unloading, and receiving from shippers similar freight originating at Brooklyn and consigned to points upon the various railroads. For its services in handling the freight it received its pay on a percentage basis from the railroad or steamship company upon whose account the service was performed. It denied that it was a common carrier. The court ruled that whether a carrier is a common carrier within the meaning of the Hours of Service Act does not depend upon whether its charter declares it to be such, nor upon whether the state so considers it, but upon what it does, and that the fact that it acts only as agent for other carriers, cannot change its obligation under the act. Said the court:
“We need not undertake a definition of the term ‘common carrier’ for all purposes. Nor are we concerned With questions of corporate power or of duties to shippers, which frequently compel nice distinctions between public and private carriers. We have merely to determine whether Congress, in declaring the Hours of Service Act applicable ‘to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad,’ made its prohibitions applicable to the Terminal and its employees engaged in the operations here involved. The answer to that question does not depend upon whether its charter declares it to be a common carrier, nor upon whether the state of incorporation considers it such; but upon what it does.”
The court, after referring to the fact that the services rendered by the Terminal were public in their nature and of a kind ordinarily performed by a common carrier, proceeded to say:
“If these terminal operations were conducted directly by any, or jointly by all, of the ten railroad companies with which the Terminal has contracts, the operations would clearly be within the scope of 'the Hours of Service Law.”
A similar case is Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, 36 Sup. Ct. 583, 60 L. Ed. 984, Ann. Cas. 1916D, 765.
Not only is the board a common carrier, but we think that the line of the State Belt Railroad is a highway of commerce. It receives from other railroads loaded cars containing freight shipped in interstate commerce, and delivers them either to the industries which it serves or to wharves for further transportation, and likewise it re
The defendants rely upon Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (C. C.) 37 Fed. 567, 2 L. R. A. 289, in which it was held that a bridge company, which owned a bridge and, while owing no legal obligation to do so, voluntarily contracted to switch cars over its tracks between two or more railways, and collected switching charges merely for shifting cars from one line to another, was not a common carrier within the true meaning of section 1 of the Act to Regulate Commerce (Comp. St. § 8563), so that it could compel railroad companies to interchange traffic with it. What was there said as to the character _ of the bridge company was obiter, for the court had found that there was a want of physical connection at suitable and properly equipped státions to invoke the requirement of an equal facility for exchange of traffic, and in view of that finding it could make no difference wheth-
er or not the petitioner in the case was' a common carrier. But there is this to be said by way of distinguishing that case from the case at bar. In that case the bridge company lacked one of the essentials of a common carrier. It did not undertake to carry for all indifferently. 4 R. C. L- 546. The defendants in the present case undertake for hire to transport the cars of all who choose to employ them. They are operating a public terminal, and it is well settled that terminal com- ' panies are common carriers, whenever they hold themselves out to be such, and constantly act in that capacity, and are so dealt with by railroad companies generally, and this irrespective of the manner in which they receive their compensation. United States v. Union Stockyards Co., 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226. In United States v. Sioux City Stockyards Co. (C. C.) 162 Fed. 556, affirmed (C. C. A.) 167 Fed. 126, it was held, under the provisions of the Twenty-Eight Hour Law (Comp. St. §§ 8651-8654) that a terminal railroad company owning no cars of its own, and transporting only the cars of other companies, is a common carrier. The decision was approved in United States v. Brooklyn Terminal, supra. A similar ruling was made in United States v. Chicago, B. & Q. R. Co. (C. C. A.) 293 Fed. 185. In Missouri Pac. R. Co. v. Wichita Wholesale Grocery Co., 55 Kan. 525,40 Pac. 899, it is said:
“A railroad transporting * * * a carload of freight one mile, using a switch engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight * * * train. The fact that compensation for this particular service was paid by the St. Louis & San Francisco Railway Company, while it might render that company also responsible, could not relieve defendant company from its liability as a carrier.”
We find no error. The judgment is affirmed.