Pennsylvania Co v. Public Utilities Commission of Ohio 8212 1936

• Decision Date: 27 April 1936
• Docket Number: No. 746,746
• Citation: 298 U.S. 170,80 L.Ed. 1130,56 S.Ct. 687
• Parties: PENNSYLVANIA R. CO. et al. v. PUBLIC UTILITIES COMMISSION OF OHIO et al. Argued April 7—8, 1936
• Court: U.S. Supreme Court

298 U.S. 170

56 S.Ct. 687

80 L.Ed. 1130

PENNSYLVANIA R. CO. et al.

v PUBLIC UTILITIES COMMISSION OF OHIO et al.

No. 746.

Argued April 7—8, 1936.

Decided April 27, 1936.

Appeal from the District Court of the United States for the Southern District of Ohio.

Messrs. Frederic D. McKenney, of Washington, D.C., and Guernsey Orcutt, of Pittsburgh, Pa., for appellants.

Messrs. Donald C. Power, f Columbus Ohio, August G. Gutheim, of Washington, D.C., and John W. Bricker, of Columbus, Ohio, for appellees Public Utilities Commission of Ohio and another.

Mr. Don Rose, of Pittsburgh, Pa., for appellee Pittsburgh Coal Co.

Mr. Justice CARDOZO delivered the opinion of the Court.

An order of the Public Utilities Commission of Ohio directs the Pennsylvania Railroad Company and the Erir Railroad Company, appellants in this court, to adhere to local or intrastate rates in switching and delivering four carloads of bituminous coal to consignees in Youngstown, Ohio, and in switching and delivering any other carloads that may be tendered hereafter in similar conditions. The question is whether the effect of such an order as applied to the transactions exhibited in the record is to regulate common carriers by rail in the business of interstate transportation, and thus to trench upon the jurisdiction of the Interstate Commerce Commission.

Pittsburgh Coal Company, an appellee in this court, is the owner of coal mines in Pennsylvania, so situated that the product of the mines can readily be conveyed by use of the owner's cars and tipple to barges waiting to receive it on the Monongahela river. Much of the coal is sold to consumers in Ohio. The company has its own barges in which the coal is towed by its own tug boats, first over the Monongahela river and then over the Ohio, to Smith's Ferry, Pennsylvania. There it has its own right of way, with tracks and cars and engine. The coal, when transferred from the barges to the cars, is taken over this right of way, a distance of about eleven miles, to Negley, Ohio. At Negley, or near by, is the Brush River Plant, owned by the coal company, where the coal is dumped from the cars, washed, freed from foreign matter and impurities, and broken up or assorted into the sizes desired by the customers. Then for the first time it is ready for shipment to fill specific orders, which often are not received until after it has left the mines. Up to that point the carriage has been solely by a private carrier, making use of its own facilities, its trains and tugs and barges.

At Negley the coal after being put in shape for sale is loaded upon the cars of the Pittsburgh, Lisbon & Western Railroad Company, referred to in the record as Lisbon, for transportation to consignees at Youngstown or elsewhere. Lisbon is a common carrier by rail, which connects at Signal, Ohio, with the tracks of the Youngstown & Suburban Railroad Company, referred to in the record as the Y. & S. The route of that line, about 22.2 miles, is between Signal and Youngstown, where there are interchange facilities with the Pennsylvania and the Erie.

On September 17, 1934, Lisbon received from the Pittsburgh Coal Company at Negley four carloads of bituminous coal to be transported via the Y. & S. to Youngstown, the cars to be there transferred, first to the Pennsylvania and then to the Erie, for delivery to consignees in Youngstown identified in the shipping orders. Lisbon and Y. & S. followed these instructions. Upon tender of the cars at the proper interchange track, Pennsylvania refused to accept or switch them except upon payment of the road haul charges on file with the Interstate Commerce Commission. The switching rates prescribed by the state commission were $7.65 per car, a charge which covered the intermediate service of the Pennsylvania and the delivery service of the Erie. No switching rates for such traffic had been filed with the federal commission by any of the trunk lines, but the haul charges, calcu- lated to the next destination beyond, were $94.50 per car. Upon the rejection of the four carloads, the Pennsylvania gave written notice to the Y. & S. that thereafter carloads of bituminous coal from mines outside Ohio would not be accepted for delivery within the Youngstown switching limits until all charges were prepaid at rates published in the tariffs on file with the federal commission.

Following the receipt of this notice, the . & S. filed with the Ohio Commission its complaint against the Pennsylvania and the Erie, the two companies having acted in concert in demanding the higher rates. Other lines, including the Baltimore & Ohio Railroad Company, and the Pittsburgh & Lake Erie Railroad Company, intervened in the proceedings, as did also the Pittsburgh Coal Company. After a full hearing the commission held in a careful opinion that in the circumstances stated the state of Ohio had jurisdiction by its commission to regulate the charges for switching services at Youngstown, and that the rates thereby prescribed were binding on the carriers. An order was made accordingly. This order was sustained by a District Court of three judges, application having been made for relief by injunction both interlocutory and final. Judicial Code § 266, 28 U.S.C. § 380 (28 U.S.C.A. § 380). The case is here upon appeal. Ibid.

First. The transportation of the coal from Negley, Ohio, to Youngstown in the same state, was an intrastate service, not subject to the provisions of the Interstate Commerce Act, and its character in that regard was not changed because of preliminary carriage from the Pennsylvania mines in barges and cars belonging to the shipper.

Appellants say that from the moment the coal left the mines in Pennsylvania there was a continuing intention to deliver it to consumers in another state, whether their identity at the beginning was known or unknown, and that a movement impelled by that intention is interstate commerce which Congress has the power to regulate at any stage of the ensuing transit. Baltimore & Ohio S.W.R. Co. v. Settle, 260 U.S. 166, 173, 43 S.Ct. 28, 67 L.Ed. 189; Railroad Commission of Ohio v. Worthington, 225 U.S. 101, 108, 32 S.Ct. 653, 56 L.Ed. 1004; Federal Trade Commission v. Pacific States Paper Association, 273 U.S. 52, 64, 47 S.Ct. 255, 71 L.Ed. 534. But there is confusion of thought in such a statement of the problem. Not all commerce is transportation, and not all transportation is by common carriers by rail. The question for us here is not whether the movement of the coal is to be classified as commerce or even as commerce between states. The question is whether it is that particular form of interstate commerce which Congress has subjected to regulation in respect of rates by a federal commission. The Interstate Commerce Act (49 U.S.C. § 1 et seq. (49 U.S.C.A. § 1 et seq.)) is aimed at common carriers exclusively (section 1(1, 3), 49 U.S.C.A. § 1(1, 3), and not even at all these. With exceptions plainly unrelated to this case (section 1(1)(b, c), 49 U.S.C.A. § 1(1)(b, c) carriers, even though common, are unaffected by the act unless they are carriers wholy be railroad, or if partly by railroad and partly by water, are operating under 'a common control, management, or arrangement for a continuous carriage or shipment.' Section 1(1)(a), 49 U.S.C.A. § 1(1)(a). Cf. Cincinnati, N.O. & T.P.R. Co. v. Interstate Commerce Commission, 162 U.S. 184, 16 S.Ct. 700, 40 L.Ed. 935; Louisville & N.R. Co. v. Behlmer, 175 U.S. 648, 20 S.Ct. 209, 44 L.Ed. 309; Standard Oil Co. v. United States (C.C.A.) 179 F. 614; Mutual Transit Co. v. United States (C.C.A.) 178 F. 664. There are limitations, moreover, in respect of the conduct to be controlled in addition to the foregoing limitations in respect of the carriers to be regulated. Even though the activities are those of common carriers by rail, the statute does not apply 'to the transportation of passengers or property * * * wholly within one State and not shipped to or from a foreign country from or to any place in the United States.' Section 1(2)(a, b) 49 U.S.C.A. § 1(2)(a, b). For many purposes, as for example in testing the validity of state taxation, merchandise is deemed to be in interstate commerce when it has started on its journey, though still in the possession of consignor or seller. Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 475, 47 S.Ct. 170, 71 L.Ed. 359; Champlain Realty Co. v. Brattleboro, 26 U.S. 366, 43...