United States ex rel. Attorney General v. Union Stockyard & Transit Co. of Chicago

MACK, Judge. This proceeding is brought to compel the Union Stockyard & Transit Company of Chicago (hereinafter called the “Stockyard Co.”) and the Chicago Junction Railway Company (hereinafter called the “Junction Co.”) to file with the Interstate Commerce Commission tariffs in conformity with section 6, and reports and statements in conformity with section 20, of the act to regulate commerce (Act Eeb. 4, 1887, as amended June 29, 1906 [34 Stat. 586, 593]), and of the rules and regulations adopted by the Commission pursuant théreto, and to enjoin the Sto'ckyard Co. and the individual defendants comprising the firm of Louis Pfaelzer & Sons (hereinafter called “the Pfaelzers”) from carrying out the terms and provisions of a contract made by them, and the Chicago Junction Railways & Union Stockyards Company (hereinafter called the “Investment Co,”) from carrying out its written guaranty of this contract. The case has been heard on petition and answer. While the answers of the Stockyard Co. and the Investment Co. neither admit nor deny certain allegations as to the activities of the Junction Co., which the latter in its answer admits to be true, and while no testimony has — 333 — been offered in the case, it has been presented, both in the briefs and oral arguments by all counsel, on the basis of the truth of those allegations that are so confessed by the Junction Co. We have, therefore, considered the petition, as against each defendant, in this light. Although the petition is clearly multifarious in joining mandamus proceedings, authorized by the act to regulate commerce, to secure compliance with its provisions, and injunction proceedings, authorized by section 3 of the act to further regulate commerce, known as the “Klkiris Act” (Act Feb. 19, 1903, 32 Stat. 848), to restrain an alleged illegal rebate and discrimination, inasmuch as defendants do not raise this objection, we shall, without approving such practice, proceed to a determination of the petitioner’s rights, under both aspects of the case. The Stockyard Co., a corporation organized in 1865 by- a special, but public, act of the state of Illinois, was thereby authorized, not only to maintain stockyards and a hotel, but also to construct and maintain railway lines, tracks, and switches, so as to connect its yards, then outside of the city of Chicago, with the tracks of all railroad lines entering Chicago within prescribed limits; to maintain the railroad, and to transport and allow to be transported thereon, between such railroads themselves, as well as between its yards and such railroads, property of every kind; to fix the rates of. toll, provided “all fees and charges for freight * * * shall be subject to any general law ⅜ ⅜ * in reference ⅜ ⅜ * to railroads.” It was further authorized to maintain its lines of railway across public streets and highways, and was given power of condemnation. The act provided'that nothing therein contained should be construed as giving authority to maintain or operate a railroad for the conveyance of passengers dr freight in the city of Chicago; but since 1865, the date of the charter, the city of Chicago has been extended so as to cover all of the property of the Stockyard Co. It was further authorized by the charter to lease its property. Pursuant to this authority, it entered into an agreement with'the Junction Co., a corporation organized under the general railroad act of the state of Illinois, where!)}, in 1897, it, in effect, leased to the Junction Co. all of its railroad and railroad equipment for a term of 50 years. Under the agreement the junction Co. obligated itself to conduct, operate, and manage the property; to perform all duties pertaining to a railroad, or of a railroad character, imposed upon the Stockyard Co.; and to pay, as rental, two-thirds of the entire net earnings and revenue derived by it from the operation of all its lines of railroad and railroad track. The Junction Co. further obligated itself to submit its books and papers showing its operations to the nominee of the Stockyard Co. The Junction Co., at the time of the lease and for 10 years thereafter, was the owner of other railroad property, and was concededly a common carrier, within the act to regulate commerce. In 1907, however, it sold all of its other property. Since that time its sole business has been the operation of the railroad so acquired from the Stockyard Co., lying wholly within the state of Illinois, in substantially the same manner as it had been operated, prior to the lease, by the Stockyard -Co. — 334 — . The line of road consists of certain main tracks, running' east and west from a point on the'lake front’in the city of Chicago near the intersection of Thirty-Ninth street with the tracks of the Illinois Central Railroad, and thence in a general westerly and northwesterly direction to a point some 8J4 miles distant from the lake, all in the state o’f Illinois; its parallel main tracks between these points aggregating about 40 miles. The Union Stockyards are located about 2 miles from the lake front, and, in addition to connecting with these yards, the Junction Co. also has switch tracks to other industries located at or near there, aggregating some 250 miles, by means of which main and switch tracks it serves in the neighborhood of 650 industries; all being in or near what is known as the “stockyards district” of Chicago. According to the record in this case, the Junction Co. neither receives goods for carriage on its own account nor deals on its own account with shippers or consignees. It is not necessary for the purposes of this decision to enumerate all of its activities in the operation of the road. Among them is the hauling of loaded' cars on behalf of trunk line carriers, by- whom it is employed and paid, from such trunk lines to the industries on its tracks, or to other trunk lines connecting with it. These cars are brought by the trunk line carriers from points outside of the state destined to points in the district served by it or to points outside of the state. They are placed by' the incoming trunk line roads on what are known as the “receiving tracks” of 'the Junction Co.; each car being marked with a transfer card', giving the name of the consignee of the freight therein contained, and thus indicating its destination. The Junction Co. picks them up with its own motive power and transports and delivers either to the designated consignee or industrjr on its line, or, when destined to points beyond- the state limits, to the proper outgoing trunk line. These cars are transported in -one unbroken line of railroad carriage from the several points where they originate outside of the state, over the line of the Junction Co. after their arrival at Chicago, to the railroad of-the outgoing connecting carrier, and then to their points of destination outside of the state. This is done without the intervention of the shipper or consignee, or the performance by either of them of any intermediate act or service; and they move in this way on through bills of lading, covering the whole distance traversed, as do those also which are consigned and delivered to consignees and industries on the line of the Junction Co. in the stockyards district. For the hauling or so-called switching service. so rendered, the Junction Co. is paid by the trunk line carriers which request the service a specified sum according to an established schedule of tariffs or charges. For instance, for the switching of cars back and forth to and from the receiving tracks of the various connecting trunk lines to the stockyards, or to the industries in that vicinity, the Junction Co. is paid a certain sum per car -by the trunk line carriers, and this it receives as a distinct switching charge, regardless of the. commodity or character of freight in the car, its origin, destination, or the through freight charge of the trunk line carriers. No specific charge therefor — 335 — Is made to the shipper or consignee, either by the Junction Co. or by the trunk line company. The trunk line is said to absorb the charge. Since the lease of 1897, the Stockyard Co. has had nothing whatever to do with the railroad or railroad business, which has been carried on exclusively by its lessee. It has confined itself, apart from the operation of the hotel, to conducting a stockyards business, with all which this involves and implies. It is not a dealer in cattle, but simply maintains a public market, where all kinds of live stock can be bought and sold. As part of this business it receives and cares for stock delivered by trunk line carriers at its docks and chutes, unloading them for a specific amount per car paid to it by the carriers. The stock, so unloaded at its yards, is mostly stock consigned on through bills of lading to parties doing business in and around the stockyards or stockyards district, which has been transported by the carriers from points outside of the state to the stockyards or to points on the line of the Junction Co. It also loads onto cars furnished by the trunk line carriers stock outbound from the yards, for which it similarly receives a fixed sum per car from the carrier for which it performs this loading service; the stock so loaded being generally consigned from owners and dealers doing business in and about the stockyards district and being moved on through bills of lading over the Junction Co. tracks to the tracks of the trunk line carriers, which haul them to points of destination bej'ond the limits of the state. The Stockyard Co. also loads and unloads live stock consigned to or shipped by industrial establishments located along the right of way of the Junction Co., for which service the trunk line carrier that handles the shipment pays a fixed sum per car. By reason of these facilities and business arrangements both live and dead' freight is moved in an unbroken line of railroad carriage on through bills of lading from points outside of the state of Illinois to the stockyards and industrial establishments located in that vicinity, and from such stockyards and industrial establishments to outside points. The Stockyard Co., however, neither issues bills of lading for these shipments, whether through hills or others, nor participates in the freight rates charged by the carriers. It is compensated solely in the manner indicated for the services which it performs. It does advance to the carriers, however, the freight charges due on bills of lading for stock delivered at the stockyards, collecting the same in turn from the consignees. But these advancements are made for the convenience and accommodation of its customers, the commission men, who buy and sell stock at its yards, and have nothing whatever to do with the charges which it makes for loading and unloading. These are paid by the trunk line carriers as a separate matter. As part of its stockyards business the Stockyard Co. further frequently feeds and waters live stock in transit, for which it is similarly paid a fixed compensation by the carrier handling the stock to and from its yards. And it also feeds, beds, and waters live stock shipped to consignees doing business at or near its yards, for which it is paid by the commission men who are engaged at its yards in buying and selling cattle. It also frequently makes alterations and repairs in cattle cars, for which it is paid by the carrier requesting the service. And, finally, for the accommodation of — 336 — its- patrons it-has built and conducts a hotel in the. neighborhood of its yards, as empowered by. its charter. The Investment Co. is a' corporation organized under the laws of the state of New Jersey solely as an investment company, for the purpose, among other things, of holding stock of the Stockyard Co. It owns over-90" per cent, of this stock, as well as practically all of the stock of the -Juttdtion Co.; but it owns none of the property of, and neither manages nor controls either company, except in so far as its stock ownership enables-it to elect their directors. The contract between the Stockyard Co. and the Pfaelzers in substance obligates the former to pay $50,000 to the latter in order to enable them .to rebuild their packing plant at a specified place in the neighborhood of the Stockyard Co.’s premises. In consideration thereof the Pfaelzers bind themselves to rebuild the plant, to conduct their business exclusively at the specified place, and either to buy all live stock slaughtered or packed by them in or within 200 miles of Chicago, for a period of 15 years, at the yards of the Stockyards Co., or,' in lieu thereof, to pay it the _ same customary yardage, tolls, and charges that it would receive if such live stock were sent to its yards and there bought by them. The questions presented on this record are: First. Is the Junction Co. a “common carrier engaged in transportation of property by railroad from, one state to another state of-the United States,” within section 1 of the act to regulate commerce, and therefore subject to the provisions of sections 6 and 20 thereof? Second. Is the Stockyard Co. the “owner of a railroad engaged in interstate commerce,” within such section 20, and therefore subject to its provisions ? Third. Is the Stockyard Co. a common carrier, within such section 1,. and therefore subject to section 6 thereof, and also to the provisions of section 3 of the Elkins act? Fourth. Is the Investment Co. such a carrier, and therefore subject to section 3 of the Elkins act? Fifth. Are the contract and guaranty a violation of the act to regulate commerce,;, or; oh the Elkins act? [1] First. Counsel’ for the Junction Co. expressly concede in this case that.it is á common carrier. They deny, however, that it is engaged in interstate commerce. Counsel for other defendants, while not expressly denying, nevertheless intimate, that it is not a common carrier., That it is a common and not a private carrier, if it be a carrier at all, is manifest from the. fact that it'is organized under the general railroad law of Illinois; Under 'its. Constitution (article 11, § 12) all railroads are “declared public highways and shall be free to all persons for the transportation of their persons and property thereon, under such regulations, as may be prescribed by'law.” Moreover, it offers its services by the publication .of a tariff in general circulation in Chicago to all the public who are in a position to avail, themselves thereof. That the class is a limited one does not.affect the nature .of the business, or render it any the less public or common in its character. It js,.,however, suggested that it is .not a carrier at all, because what — 337 — it 'hauls is the loaded car, and not the freight itself with which the car is loaded. That cars, as well as other property, may be the subject-matter of carriage, is, however, well established. P. & P. U. Ry. Co. v. C., R. I. & P. Ry. Co., 109 Ill. 135, 50 Am. Rep. 605; M. P. Ry. Co. v. C. & A. Ry. Co. (C. C.) 25 Fed. 317; U. S. v. C. & N. W. Ry. Co. (D. C.) 157 Fed. 616, 619. It is further contended that the trunk line alone is the carrier, and that the Junction Co. is merely its agent and instrumentality, and only as such agent performing, not a transportation or carriage, but a mere switching service. This service is likened to that of a towboat, which, under some circumstances and in some jurisdictions, is held not to be a carrier. That the trunk line has agreed to carry beyond its own line, and has expressly assumed a liability for the acts of connecting carriers, which, under the so-called Carmack amendment to section 20 of the act to regulate commerce (Act June 29, 1906, 34 Stat. 595), the law would now impose upon it as the initial carrier, does not, however, render the connecting carrier any the less the transporter or carrier of the property while it is actually hauling the loaded car on its own tracks, with its own motive power and its own servants, absolutely free from any control or direction on the part of either trunk line. To call this service a switching service does not, in any respect, change its character ; whether .the work done be to switch a car 1 mile or to haul it 200 miles, it is none the less a transportation or carriage of the car and its contents by an independent operator. As was well said in M. P. Ry. Co. v. Grocery Co., 55 Kan. 525, 40 Pac. 899: "A railroad transporting a car load of freight 1 mile, using a switching engine for motive power, is just as much a common carrier as if the distance were 1000 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.’’ If, then, it be a common carrier of this property, it must be immaterial how or by whom it is paid. ’ Whether its rate is a flat one, or a proportion of the through rate, whether it is paid by the’ trunk line and absorbed, or by the shipper or consignee, does not determine the nature of its services or alter the character of its offer to the public— to serve them as a common carrier. The Interstate Commerce Commission in Cattle Raisers’ Association v. F. W. & D. C. Ry. Co., 7 Interst. Com. R. 513, 536, 537, while holding, as counsel urge, that this very Stockyard Co., under which the Junction Co. holds by lease, was not, prior to the lease of 1897, a common carrier in certain of its activities, also expressed the opinion, which counsel have not noted, that it was a common carrier with reference to the activities hereinabove described and now performed by the- Junction Co. The Commission, moreover, point out that the Bridge Co., in K., & I. Bridge Co. v. L. & N. Ry. Co. (C. C.) 37 Fed. 567, 2 L. R. A. 289, which is here relied’upon, was not, under its act of incorporation, a common carrier at all. In Union Stockyards Co. of Omaha v. U. S., 169 Fed. 404, 94 C. C. A. 626, the Circuit Court of Appeals, while holding, as counsel — 338 — 'claim, that the Stockyard Co. of Omaha was not as common carrier in its stockyards activities, also held that, as to its railroad activities, which are identical with those of the Junction Co., it was a common carrier engaged in interstate commerce, within the safety appliance-law (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]). On this point, Mr. Justice Van Devanter said: “It is the contention of counsel for the stockyards company that the service performed by it is such only as the railroad companies are bound to perform for their patrons; that, having no facilities for performing this service at South Omaha, the railroad companies merely employ the stockyards company to furnish the requisite facilities and to operate them; that the performance of this service under such an employment does not make the stockyards company a common carrier, or its property used therein a railroad; and that this service is purely a local switching service, which follows or precedes transportation, and is not interstate commerce. * s ⅜ It is of little significance that the stockyards company does not hold itself out as ready or willing generally to carry live stock for the public, for all the railroad companies at South Omaha do so hold themselves out, and it stands ready and willing to conduct, and actually does conduct, for hire a part of the transportation of every live stock shipment which they accept for carriage to or from that point, including such shipments as are interstate.” Belt Ry. Co. of Chicago v. U. S., 168 Fed. 542, 93 C. C. A. 666, 22 L. R. A. (N. S.) 582, U. S. v. Sioux City Stockyards Co. (C. C.) 162 Fed. 556, U. S. v. Union Stockyards Co. (D. C.) 161 Fed. 919, and the dictum in McNamara v. Wash. Terminal Co. (D. C.) 39 Wash. Law Rep. 458, are in accordance with the decision of Mr. Justice Van Devanter, and hold a company performing these activities, not only a common carrier, but also engaged in interstate commerce within the safety appliance or employer’s liability acts. If, then, the Junction Co. be, at least as to some of its activities, a common carrier, is it also “engaged in the transportation of property by railroad from state to state” ? Its location wholly within one state, the switching nature of its activities, which are said to be merely incidental to the transportation within that state, and its failure to receive a division or definite percentage of the through interstate rate, are urged in support of the contention that it is not engaged in transportation from one state to another. Counsel, moreover, contend that the amendment of June 29, 1906, to the first section of the act to regulate commerce, narrows the class of railroads wholly within one state that are now subject to the act. Prior to the amendment, the act read: “Common carriers engaged in the transportation of property wholly by railroad, or partly by railroad and partly by water, when both are used -under, a common control, management, or arrangement for a continuous carriage or shipment, from one state to any other state.” By the amendment of 1906 the clause beginning “or partly” and ending with the word “shipment” was inclosed in parentheses. It is urged that, under the correct construction of the original section 1, a railroad, even though wholly within one state, came within the act if it carried freight within that state under a common arrangement with an interstate carrier, but that, since under the amendment the common arrangement refers only to transportation partly by water — 339 — and partly by rail, a carrier operating wholly by rail and within one state does not come within the amended act, even though it operate under such a common arrangement; in other words, that only railroads whose lines cross state boundaries are now subject to the Commission. The case of C., N. O. & T. P. Ry. Co. v. I. C. C., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, does not, however, sustain the contention that prior to the amendment the clause “under a common control/’ etc., affected as well the carriage wholly by railroad as the carriage partlv by railroad and partly by water. U. S. v. Colo. & N. W. Ry. Co., 157 Fed. 321, 329, 332, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167. Whatever be the true construction of section 1 as originally framed —and we agree with the Circuit Court of Appeals in U. S. v. Colo. & N. W. Ry. Co., 157 Fed. 321, 327, 85 C. C. A. 27, 33 (15 L. R. A. [N. S.] 167), that “it is probable that the clause ‘under a common control,’ etc., qualified carriers ‘partly by railroad and partly by water’ only, and had no application to such carriers ‘wholly by railroad’ ”— it is clear that the sole purjio.se of the amendment was to remove any possible doubt on this point, and not to withdraw from the operation of the act railroads wholly within one state, but engaged in the transportation of articles while moving in interstate commerce, whether with or without a common arrangement with connecting lines. U. S. v. C. & N. W. Ry. Co., supra, 157 Fed. 328, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167. [2] The interstate commerce begins with the shipment of the article in one state directed and destined to another state. It ends only with the delivery at destination. All common carriers by railroad which jiarticipate in its actual transportation from the time of shipment to the time of delivery are engaged in the transportation of property from one state to another, whether their services be performed wholly within one state or in more than one state, whether such services be primary, and called “carriage,” or incidental, and called “switching,” whether the carrier be paid a flat sum per car or a jiercentage of the through rate, and whether such payment be made directly by the shipper or consignee on the one hand, or by the initial or final carrier on the other hand. U. S. v. Ill. Term. Ry. Co. (D. C.) 168 Fed. 546; Pac. Coast Ry. Co. v. U. S. 173 Fed. 448, 98 C. C. A. 31. While it is conceded that the cases above cited support these views, at least when the safety-appliance acts are in question, it is sought to distinguish most of them on the ground that the safety-appliance acts and the interstate commerce act have a different purpose and scopq; that the former are intended primarily to regulate the cars at any time used in interstate commerce, and not primarily the carriers themselves in their relation to the public. Some statements from the decision of Judge Sanborn (U. S. v. C. & N. W. Ry. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167) to the effect that the two' acts are not in pari materia, and therefore not necessarily to be construed alike, are cited in support of this contention. " The argument, however, which was answered in that opinion, was as follows: The original interstate commerce act subjected to the control of the Interstate — 340 — Commerce Commission a carrier by railroad within one state only if it operated under a common arrangement with a carrier in another state. That act was passed in 1887. In 1893 the first safety-appliance act was passed. In terms it applied to every “carrier by railroad ■engaged in interstate commerce.” Nevertheless, as it, too, subjected carriers to the control of the Commission, the broad language must be deemed limited to the class of carriers affected by. the act of 1887, because the act of 1887 clearly declared the intent of Congress as to the extent of the class over which the Commission should have control. The answer to this argument, given by the court, was twofold: First. The major premise, though adopted by some courts, was erroneous. All common carriers engaged in interstate transportation wholly by railroad were embraced within the terms of the original act to regulate commerce. Second. Even if it were correct, there was no such relation between the two acts as to cause the court to modify the broad language of the safety appliance act by expressly inserting therein the limitation of the interstate commerce act. It is manifest that this decision does not support the contention of counsel. Again, it is said that the safety appliance act as now amended (Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1909, p. 1143]) requires all cars engaged in interstate commerce, whether owned by an interstate railroad or by a private individual not engaged in the transportation business, to be equipped as therein directed. But, whatever the scope of the act may be (So. Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. -, Oct. 31, 1911) only the “common •carrier engaged in interstate commerce” is punishable for its violation. Cases holding companies whose activities are the same as those of the Junction Co. guilty of such a violation are therefore direct authorities on.the question now under consideration. As, therefore, the designation used in the several acts, “carrier engaged by railroad in interstate commerce” and “carrier engaged by railroa.d in the transportation of property from one state to another,” are not mutually exclusive, but, on-the contrary, the one includes the other, and as all of the authorities cited to or found by us expressly hold that such of the activities of the Junction Co. as are hereinabove ■set forth make it a common carrier engaged in interstate commerce by railroad, we are of the opinion that it is a common carrier engaged in the transportation of property from one state to another, within section 1 of the act to regulate commerce, and as such subject to the requirements of section .6 and section 20 of that act. [3] Second. By the amendment of June 29, 1906, the commission was authorized, under section 20, to require annual reports, not only “from all common carriers subject to the provisions of this act,” but •also “from the owners of all railroads engaged in interstate commerce as defined in this act.” This is the only section of the act that refers to the owners of tfce railroad as distinguished from the common carrier. The evident purpose of Congress was to enable the Commission to obtain certain information which the lessee operator might be unable to give, but which the owner of a railroad, either operated by a common carrier engaged in interstate commerce as defined in the act or which is a highway-of interstate commerce, could furnish; .Which — 341 — ever be the true construction of this clause (So. Ry. Co. v. U. S., supra), the Stockyard Co., as lessor, is the owner of such a railroad, and therefore comes within the provisions of section 20. What the obligations are which that section imposes upon such owners we are not now called upon to decide. [4] Third. None of the present activities of the'Stockyard Co. as the owner and manager of the stockyards and hotel business, herein-above fully detailed, in our judgment make it a common carrier. The facilities which it affords may enter to a certain extent into the carriage of live and dead stock by the railroads with which it has occasion to deal, and the services which it renders in that connection mgy take on a public character. Cotting v. Kansas City Stockyards, 183 U. S. 79, 85, 22 Sup. Ct. 30, 46 L. Ed. 92. But that does not affect the case. A carrier must transport or carry. It must actually engage, in other words, in the carriage of goods or persons from point to point, of which there is no semblance in anything which is done here. Union Stockyards v. U. S., 169 Fed. 404, 406, 94 C. C. A. 626. [5] It is said, however, that the charier of the Stockyard Co. contemplated that it should build and operate a railroad to connect with the trunk lines which enter Chicago, and empowered it so to do, and that it cannot escape this charter obligation or put off the character of a common carrier thereby impressed on it, either by not exercising the power or by turning over to another company the railroad which it built. The corporate character of a company — and much less the business in which it is engaged — is not determined by its reserved and unused powers. Tiffany v. La Plume Condensed Milk Co. (D. C.) 141 Fed. 444; Cate v. Connell, 173 Fed. 445, 97 C. C. A. 647. it is what it does, and not simply what it may do, by which it is to be judged. A corporation would in no sense be a common carrier, if it never constructed or ran a railroad or other means of transportation, merely because it had the charter power. But the Stockyard Co. did exercise such power. It built and operated the railroad. It was, at that time, a common carrier. Cattle Raisers’ Ass’n v. F. W. D. C. Ry. Co., supra. It has, however, pursuant to its charter power, leased its entire railroad property. Thereupon the railroad, with the locomotives and cars required to run it, went out of the possession and control of the Stockyard Co., which thereafter confined its operations to the stockyard business under its other charter powers. Clearly the mere reversionary ownership of the railway, which it retained, did not make it a carrier, or impose upon it the obligations or duties of a carrier. [6] While under the law of Illinois (Penn. Co. v. Ellett, Adm’r, 132 Ill. 654, 24 N. E. 559) and of some other states a lessor is liable like a common carrier for damages caused by its lessee, ari independent operating company, the weight of authority appears to be contrary to this view (1 Elliott on Railroads, § 468). In any event, the Federal Courts in Illinois have refused to follow the Illinois doctrine (Yeates v. Ill. Central Ry. Co. [C. C.] 137 Fed. 943; Curtis v. C., C., C. & St. L. Ry. Co. [C. C.] 140 Fed. 777), on the ground that this is a question of general law. Moreover, whatever may be the liability of a lessor railroad for damage to persons or property while being transported over the railroad owned by it, but operated" by a lessee, that — 342 — liability, if any, is due to the obligations imposed upon it by the state. The state may declare that a nonoperating lessor shall be liable to the same extent as a common carrier for such damages. It cannot, however, by such a declaration, make the lessor a common carrier in fact, within the meaning of the act to regulate commerce. “Common carrier,” as therein used, is to be taken in its ordinary signification of the one engaged in the actual work of transportation; that is, the operating company. Any doubt that may theretofore have existed on this point is, in our judgment,'removed by the amendment of 1906 to section 20 of tiie act, whereby, in express terms, the owner of a railroad engaged in interstate commerce is referred to in contradistinction to the common carrier subject to the act. The decision of the Interstate Commerce Commission in Independent Refiners’ Ass’n v. P. R. Co., 6 Interst. Com. R. 52, in so far as it holds the lessor, merely as lessor, liable for the lessee’s violation of its obligations, under the interstate commerce act, .is not to be supported. The commission in that case, however, based the liability of the lessor also on the fact that it received as rental, not a fixed annual sum, but one-half of the gross revenues. A holding of the Circuit Court for the Western District of Pennsylvania, in accordance with this ruling of the Commission, that lessor and lessee thereby were to be deemed in a sense joint operators, was, however, reversed in the Circuit Court of Appeals. Western N. Y. & P. R. Co. v. Penn Refining Co., 137 Fed. 343, 356, 70 C. C. A. 23. There would seem to be no difference in the relation between a lessor and a lessee, when, as in that case, the rental is a percentage of the gross receipts, and when, as in this case, the rental is a percentage of the net receipts. The test of a joint operation by lessor and lessee, corporations, like that of a partnership between individuals, is not a sharing merely in the net profits of the enterprise. Holmes v. Old Colony R. R. Co., 5 Gray (Mass.) 58. The Stockyard Co. cannot be deemed a joint operator with the Junction Co., and therefore a common carrier within the act to regulate commerce, merely because it receives two-thirds of the net revenues of the Junction Co. or because its auditor acts for both companies. Even if the Investment Co., by reason of its ownership of the stock of the Junction Co., could be held to be’ in such control of the Junction Co. as, for. some purposes, to make the two identical, nevertheless the Stockyard Co. would not thereby, and through the ownership by the Investment Co. of 90 per cent, of its stock, become a common carrier. It was the common carrier’s ownership of 99 per cent, of the stock of the Wharf Co., organized for the very purpose of furnishing it terminal facilities as a part of the interstate system, that, in Southern Pacific Terminal Co. v. I. C. C. & Young, 219 U. S. 499, 31 Sup. Ct. 279, 55 L. Ed. 310, was held to make the Wharf Co. a part of the common carrier’s system, and therefore a common carrier subject to the act. We see no analogy to the situation in this case. [7] Fourth. The Investment Co., whatever may be its control over the Junction Co. or the Stockyard Co., cannot, in any sense, be deemed a common carrier. Its ownership of the entire stock of the Junction Co. vyould not make it,- any more than such ownership would make an individual, a common carrier. It might be termed, in a sense, the — 343 — owner of a common carrier; but, as it is not itself a common carrier, it does not, in our judgment, come within section 1 of the interstate commerce act, or section 3 of the Elkins act. [8] Fifth. While section 1 of the Elkins act as amended (Act June 29, 1906, 34 Stat. 584, 587), after prohibiting “any person or corporation” from rebating or discriminating in respect to an interstate transportation, subjects to criminal prosecution “any person or corporation, whether shipper or carrier,” who knowingly violates its provisions, section 3 of the Elkins act, under which this suit is brought, authorizes equity proceedings to enjoin such offenses only when a “common carrier” has committed or is about to commit them. If the decision in I. C. C. v. Reichmann (C. C.) 145 Fed. 235, correctly holds that one who is neither shipper nor carrier can be prosecuted under section 1 — as to which we intimate no opinion — the question whether the proposed payment to the Pfaelzers could in any way be deemed such a rebate or discrimination could be tested by proceedings thereunder in the proper forum. We have found it unnecessary to determine or even to consider it, in view of our conclusion that neither the Stockyard Co. nor the Investment Co. is a common carrier. [9] Section 6 of the interstate commerce act imposes a positive duty on common carriers subject thereto in respect to the filing of tariffs and other documents. Section 20, on the other hand, merely authorizes the Commission to require reports from common carriers and owners of railroads engaged in interstate commerce. There is no allegation in the petition filed in this cause that the Interstate Commerce Commission in any manner, either by general or special order or otherwise, has ever required the Junction Co. or the Stockyard Co. to furnish any such reports as are contemplated under section 20. In the absence of such an order, no mandamus to make such reports can be issued by this court. It follows, therefore, that the petition must be dismissed, not only as against defendants other than the Junction Co. and the Stockyard Co., but also as against the Stockyard Co., and the relief prayed for under section 20 of the act must be denied as against the Junction Co. The mandatory writ will be issued against the Junction Co., as a common carrier subject to the act, to comply with its obligations under section 6 thereof.