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GENERAL PRINCIPLE CONTROLLING THE CONTROVERSY. Upon the record some 99 tap lines in the territory in question have laid before us their claim of a right to receive allowances and have disclosed their history, their manner of operation, and their relation to their respective mills. Naturally, there are wide differences in the way in which their operations are conducted. From a careful examination, however, of all the facts disclosed of record we have arrived at certain general conclusions that must control and guide us in the disposition of these cases:
The notion seems to prevail in the yellow-pine district west of the Mississippi River that a common carrier must be an incorporated company; on the other hand, it is also claimed that a company incorporated as a common carrier is a common carrier in law for all purposes, regardless of all other considerations. This, how-ever, is not a sound view of the matter. In some of the states the local law permits only incorporated companies to act as common carriers by rail; and, as a matter of fact and practice, common carriers by rail are usually incorporated companies. At the moment we recall no exception. Nevertheless, the act to regulate commerce specifically applies " to any corporation or any person or persons " engaged in the transportation of passengers or property by rail from a point in one state to a point in another state. It follows, therefore, so far as interstate transportation is concerned, that incorporation is not a condition precedent to the right to be a common carrier by rail.
That relation to the public may lawfully be sustained, with respect to interstate traffic, by individuals or partnerships or other associations. The inquiry with this Commission, therefore, is not whether a railroad company has been incorporated, but whether the company or the per-son claiming to be a common carrier by rail is a common carrier in fact. If there is a holding out as a common carrier for hire, and if there is an ostensible and actual movement of traffic for the public for hire, generally speaking, the status of a common carrier may be said to exist, whether the holding out is by a company or by an individual. But such a holding out and the existence of an actual traffic is not conclusive in all cases. Where the holding out is in furtherance of a plan to secure unlawful advantages and the alleged carrier is able to pick up some traffic that is incidental to that purpose, it must be regarded simply as a cloak or device to effect unlawful results. This Commission, in the enforcement of the law, is necessarily bound to ascertain the real purpose and object of the holding out; and in the prevention of preferences and other unlawful consequences it is entitled to and must ascertain the real situation. In other words, whether a company or a person claiming to be a common carrier is a common carrier at all and for all purposes is a question of fact, and whether the service performed for a particular person is a service of transportation or an industrial service is also a question of fact.
It follows from that view of the matter that the common owner-ship of an industry and of a railroad that is held out as a common carrier and has some actual traffic for the public for hire is not in itself sufficient to divest the railroad of its status as a common carrier. On the other hand, the fact that the rails, locomotives, and cars of an industry have been turned over to an incorporated railroad company, owned and operated by the industry or in its interest, does not divest those appliances of their character as a plant facility if such in fact is the case. If the rails were laid and the equipment acquired for the use of the industry as a facility in the process of manufacture and production, and are so used, the fact that some outside traffic may be carried over the same rails does not modify the character of what is done over them for the industry. We must look at the thing done and scrutinize the manner in which it is done. We must ascertain what is its real relation to the industry. If in such a case the tracks and equipment are a facility of the plant and are so used in the process of manufacture, what is thus done for the controlling industry can not be regarded as a service of transportation. It is clear that a division allowed by a public carrier out of the rate under such circumstances is a rebate to the industry. But again, it must be added that the real relation of the tracks and locomotives to the industry is a question of fact that is not controlled by considerations of mere ownership, but by a correct understanding of the service thus performed for the controlling industry. |
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