delivered the opinion of the court.
This is a suit to restrain the Public Utilities Com-iiiission of the District of Columbia from exercising jurisdiction over the plaintiff-. The Commission was created and its powers established by a section (§ 8) of an appropriation act, divided into numbered paragraphs. Act of March 4, 1913, c. 150, § 8. 37 Stat. 938, 974. By paragraph 2 of the section ‘Every public utility is hеreby required to obey the lawful orders of the Commission,’ and by par. 1 public utility embraces every common carrier, which phrase in turn is declared to include ‘express companies and every corporation . . . controlling or managing any agency or agencies for public use for the conveyаnce of persons or property within the District of Columbia for hire.’ Steam railroads, some other companies, and the Washington Terminal Company аre declared not to be within the words. The main question is whether the plaintiff is a common carrier under the definition in the act. The bill was dismissed by the Supreme Court аnd the decree was affirmed by the Court of Appeals. 43 App. D. C. 120.
The facts are agreed. The plaintiff is a Virginia corporation authorized by its charter, with copious verbiage, to build, buy, sell, let and operate automobiles, taxicabs, and other vehicles, and to carry passengers and goods by such vehicles; but not to exercise any of the powers of a public service corporation. It does business in the Dis
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trict, and the important thing is what it does, not whаt its charter says. The first item, amounting to about thirty-five hundredths of the whole, is done under a lease for years from the Washington Terminal Company, the owner of the Uniоn Railroad Station in Washington, which we have mentioned as excluded from the definition of common carriers. By this lease the plaintiff has the exclusive right to sоlicit livery and taxicab business from all persons passing to or from trains in the Union Station, and agrees in its turn to provide a service sufficient in the judgment of the Terminаl Company to accommodate persons using the Station, and is to pay over a certain percentage of the gross receipts. It may bе assumed that a person taking a taxicab at the station would control the whole vehicle both as to contents, direction, and time of use, although nоt, so far as indicated, in such a sense as to make the driver of the machine his servant, according to familiar distinctions. The last facts however appear to be immaterial and in no degree to cast doubt upon the plaintiff’s taxicabs when employed as above stated being a public utility by anciеnt usage and understanding,
Munn
v.
Illinois,
The next item of the plaintiff’s business, constituting about a quarter, is under contracts with hotels, by which it agrees to furnish enough taxicabs and automobiles within certain hours reasonably to meet the needs of the hotel, receiving the exclusive right to solicit in and about
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the hotel; but limiting its serviсe to guests of the hotel. We do not perceive that this limitation removes the public character of the service, or takes it out of the definitiоn in the act. No carrier serves all the public, His customers are limited by place, requirements, ability to pay and other facts. But the public generally is free to go to hotels if it can afford to, as it is free to travel by rail, and through the hotel door to call on the plaintiff for a taxicab. We should hesitate to believe that either its contract or its public duty allowed it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so.
German Alliance Ins. Co.
v.
Kansas,
The rest of the plaintiff’s business, amounting to four-tenths, consists mainly in furnishing automobiles from its central garage on orders, generally by telephone. It asserts the right to refuse the service and no doubt would do so if the pay was uncertain, but it advertises extensively and, we must assume, generally accepts any seemingly solvent customer. Still, the bargains are individual, and however much they may tend towards uniformity in price probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the Station and hotels. There is no contract with a third person to serve the public generally. The question whether as to this part of its business it is an agency for public use within the meaning of the statute is more difficult. Whether it is or not, the jurisdiction of the Commission is established by what wе have said, and it would not be necessary to decide the question if the bill, in addition to an injunction against taking jurisdiction, did not pray that Order No. 44 of the Commission be dеclared void. That order,
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after declaring that the plaintiff was engaged in the business of a common carrier within the meaning of the act and so was within the jurisdiсtion of the Commission, required the plaintiff to furnish the information called for in a circular letter of April 12, 1913. What this information was does not appear with technical precision, but we assume that it was in substance similar to a later requirement of a schedule showing all rates and charges in force for any serviсe performed by the plaintiff within .the District or any service in connection therewith. If we are right this demand was too broad unless the business from the garage alsо was within the act. There is no such connection between the charges for this last and the others as as there was between the facts required and the business controlled in
Int. Comm. Comm.
v.
Goodrich Transit Co.,
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Complaint is made that jurisdiction has not been assumed оver some other concerns that stand on the same footing as the plaintiff. But there can be no pretence that the act is a disguised attempt tо create preferences or that the principle of
Yick Wo
v.
Hopkins,
Decree modified as above set forth.