The opinion
ARCH BALD, Judge
(dissenting m part). The petition is well dismissed as to the three respondents, with respect to whom it is found that neither the Elkins nor the interstate commerce act apply. It is held, however, that the Junction Railway Company is a common carrier engaged in interstate commerce, and therefore liable to publish tariffs and to make reports, and as to this I feel compelled to dissent.
Nothing of the kind can be predicated on the use which the Junction Railway Company permits of its tracks by the trunk line carriers as a connecting link, to haul by their own motive power through trains moving from one to the other, east or west. In the loan of its tracks for this purpose, however regular or persisted in, it is not exercising any of the functions of a common carrier, even though it take tolls therefor, any more than a turnpike road, upon which people travel, *344 or a toll bridge spanning a stream, which accommodates those who go-across, or a canal, which, without doing any towing, merely maintains a waterway for public use. Moore, Carriers, p. 66, 67; Kentucky & Indiana Bridge Co. v. Louis. & Nash. R. R. (C. C.) 37 Fed. 573 , 615, 2 L. R. A. 289; Grigsby v. Chappell, 5 Rich. (S. C.) 443. The traffic which, by leave of the Junction Railway Company, goes on over its tracks in this way is that of the trunk lines using them, and not of the Junction. Railway. The charges for through carriage, including this part of the movement, are made by and paid to these lines, and the Junction Railway does not participate by division or otherwise therein. Neither does it know or come in contact with the shippers or consignees or with the freight which is so moved. • It simply lets its road and gets pay for its. use at so much a car, which neither makes it,a carrier nor constitutes an engagement by it in interstate trade.
Neither is there anything to make it a common carrier in what it does at the Union Freight Station, which it maintains, in the way of receiving, distributing, and forwarding L. C. U. freight. So far as it acts with respect to this for the Baltimore & Ohio Railroad, it acts as the local agent of that company, and is not chargeable in any larger degree. The receiving, loading, and forwarding which it does for others, including the collection of freight charges, when required by ,the trunk line carriers to be prepaid, and the giving of receipts which ,are exchangeable for bills of lading therefor, may be of a somewhat more general character. But in no respect do they amount to a transportation of such freight by the Junction Railway on its own account, nor does the Junction Railway Company in any sense act as a common carrier with respect thereto. It merely serves as a receiving and forwarding agent, for which it is compensated by the trunk line carriers-by which its services are invoked. Having no concern as such agent in the transportation of-this freight, nor any interest in the freight rates charged, and the services being complete when' rendered and confined to the mere hándling of the freight in the act of receiving and forwarding it, there is nothing in any of this upon which a common carriage can be charged. Moore, Carriers, p. 68. And the same is true, also, with regard to the weighing of freight which it does,, even though these weights are at times made the basis of freight charges and adjustments between carrier and consignor or consignee. These activities are alluded to at this time, not only because they are set up in the bill, but because they are necessary to be considered in connection with the other things which it does in determining the-character which the Junction Railway Company in fact bears, which,, to the extent of these activities, at least, 'is plainly that of a mere intermediary or local‘'agency of the trunk line companies for which the services are performed. And this character, in all that it does, it consistently maintains.
The so-called hauling and- switching services, however, remain; and,, for a full understanding of them, they must be given somewhat at large. The practice in this, regard with respect to live and dead freight is not exactly the same. Where inbound live stock originates outside of the state, and is destined to points in the stockyards district, the trunk line on which it arrives generally hauls it with its own *345 motive power over the tracks of the Junction Railway from the connecting point to the unloading docks, chutes, and platforms of the Stockyards Company, although horses are usually delivered by the Junction Railway Company after having been received from the trunk line by which they are brought in. Outbound car load shipments of live stock, however, which originate in the stockyards district and are destined to points outside the state, after being loaded into cars placed by the Junction Railway Company at the loading chutes of the stockyards, are hauled by the Junction Railway over its tracks and delivered at the proper connecting point to the trunk line which is to transport them beyond. Dead freight in car load lots, brought by the trunk line carriers from points outside of the state, destined to points in the district served by the Junction Railway on the line of its tracks, and sometimes also destined to points beyond, is placed by the trunk line roads on what are known as the receiving tracks of the Junction Railway; each car being marked with a card, giving the name of the consignee, by which its destination may be known. And these cars the Junction Railway Company picks up with its own motive power and delivers to the designated consignee or industry, or, where they are destined to points beyond the state, delivers them to the proper connecting outgoing trunk line, according to the destination indicated thereon. Through shipments of this kind move on bills of lading covering the whole distance traversed, including the tracks of the Junction Railway. And the same is true of consignments to and from the Union Stockyards, or the industries of the stockyards district adjacent to the railway company’s line. But the Junction Railway Company is not known to the shipper or the consignee in the transaction; all that it does being done for the trunk line carrier which employs it, by which it is paid so much a car. And this payment, also, it receives as a distinct switching charge, regardless of whether the car is loaded or empty, or where it is to go to, or where it comes from. The question, then, is whether by reason of what it so does the Junction Railway Company is a common carrier engaged as such in the transportation of persons or property in interstate trade, within the meaning of the law.
It is claimed that it is, because it participates in' the movement of the freight which passes over its tracks in the channels of commerce in the way which has been described, in which movement, it is said, it is an integral and essential factor and not a mere local aid. C., N. O. & T. P. R. R. v. Inter. Com. Com., 162 U. S. 184 , 16 Sup. Ct. 700, 40 L. Ed. 935 . But to me that does not seem to be the case. The part which it takes in that movement is a purely local and incidental one, in no respect having anything to do with the movement of freight, as freight, and much less as interstate freight; its services being confined to the mere handling of the cars in which the freight is contained, this being carried on and completed also wholly within the state, and not, in any respect, extending to anything beyond. It knows no one outside of the trunk line carriers by which it is employed, and does not come in contact or have any relation with the shipper or consignee, except as agent of the trunk line carriers in the receiving and delivering of freight. Nor has it anything to do with *346 the freight rates charged; the tolls which it gets being taken care of by the trunk lines without appearing in those rates. The service which it performs is a mere shifting or switching service, having no relation to anything outside of that so far as it is concerned. Its undertaking is to shift the cars, and not the freight which they contain, in the movement of which freight it has no interest; and as emphasizing this it is paid by the car without regard to contents, origin, or destination, whether to or from points within or without the state. When the cars are being moved by the Junction Railway Company, the carrier for which in each instance this is being done, in legal contemplation as well as in actual effect, is transporting them; the Junction Railway Company, by its engineers and employés, being merely the medium by which it is accomplished. To engage in transportation within the meaning of the law, there must be a participation in the result; to merely touch it in passing, as here, is not enough. The statute was enacted to regulate interstate commerce, and there must be a direct or proximate connection with interstate shipments to bring the case within its terms; and the mere local shifting or handling of cars in which the commodities move, incidentally, in transit, wholly within the state where it is done, without any share in the freight paid, the service rendered being performed for the carrier by which the through transportation is being done, is not, in my judgment, engaging in interstate commerce in the commodities or -in the interstate transportation of them, with which alone the statute undertakes to deal.
It is no doubt true that railroads performing similar switching services to those which we have here have been held to be engaged in interstate commerce, within the meaning of the safety appliance law. United States v. Col. & N. W. R. R., 157 Fed. 321 , 85 C. C. A. 27 , 15 L. R. A. (N. S.) 167; United States v. Union Stockyards of Omaha (D. C.) 161 Fed. 919 ; Belt Line R. R. v. United States, 168 Fed. 542 , 93 C. C. A. 666 , 22 L. R. A. (N. S.) 582; Union Stockyards of Omaha v. United States, 169 Fed. 404 , 94 C. C. A. 626 . But there is by no means a 'unanimity of opinion among the judges by whom these cases were decided; and, as is pointed out by Judge Sanborn, in the leading one (United States v. Col. & N. W. R. R., 157 Fed. 321 , 85 C. C. A. 27 , 15 L. R. A. [N. S.] 167) the safety appliance ast is to be given a broader construction than the interstate commerce act, even though, in the description of the carriers who are made subject to it, the same terms largely are employed in each; the one act dealing with the physical or mechanical instrumentalities of interstate commerce, looking to the safety of employés, while the other is directed to the business or commercial side, regulating the rates and practices which are there to prevail. These decisions, therefore, as it seems to me, are misleading and valueless as precedents, and are not to be applied.
Neither is the case like that of McNamara v. Washington Terminal Company, 39 Wash. Law Rep. 458, recently decided by the District of Columbia Court of Appeals, on which much reliance is placed. The case there arose under the employer’s liability act, the validity of which, so far as the District of Columbia is concerned, does not depend, as is pointed out, on the right of Congress to legislate with *347 regard to interstate or foreign trade, and the question simply was whether the Terminal Company was a common carrier engaged in trade or commerce in the District, within the meaning of the law. Whether the Terminal Company, however, was engaged in interstate commerce, was also held to be involved; and, passing upon that question, it was decided that it was. But the considerations which led to this result are to be observed. The tracks and station of the Terminal Company, it is to be noted, are not mere facilities for the handling of passengers and baggage at Washington. As to the railroads entering the city, the Terminal Company completely monopolizes everything that is done. By its agents and employes it controls the operation of trains over its tracks into and out of the station, and with its engines it shifts empty cars in the making up of trains. Steam railroad passenger traffic, entering and leaving Washington, is thus completely and exclusively managed, operated, and controlled by the Terminal Company within the zone occupied by its station and tracks. The conclusion reached, in view of this, was that it was not to be taken as a -mere line of railroad, carried on wholly and independently within the District, but that it was a direct component part of the various railroad systems engaged in interstate commerce, through which an entrance into Washington was obtained. And it is this integral and indispensable part which it has in interstate trade coming into and going out of the city that is the criterion by which its position as a medium of interstate commerce is to be judged. It is, in other words, as with the Southern Pacific Terminal ( 219 U. S. 498 , 31 Sup. Ct. 279, 55 L. Ed. 310 ), its relation to and systematic connection with the interstate railroads, of which it forms the Washington end, and its direct participation in the handling and management of the passenger and express traffic there, that makes it a common carrier engaged in interstate commerce within the meaning of thie federal law.
The distinction between that case and the one in hand is clear. The Junction Railway Company was not organized to supply terminal facilities, nor does it in fact supply them for any interstate railroad or business. Nor is it a component part of any such railroad system. Nor does it, in the hauling and switching services which it performs, take the place for the time being, as to consignor or consignee, of the trunk line carrier for which it acts. It simply moves back and forth, by means of its engines and employes, cars which it is put by the trunk line carriers in the way to take, to which carriers in the performance of that service it is alone responsible therefor. It is not an agency of commerce as such, state or interstate, but of the railroads which have that commerce in charge. It is true that it has a railroad, which it operates, over which that commerce incidentally moves. But that does not change the character of the services in which it is engaged. The part which it plays, the relation which it assumes, and the result of what it does, begin and end, so far as it is concerned, with the immediate service which it renders, which negatives the idea that anything like interstate commerce is intended or involved. Not engaging as a common carrier in such transportation, it is not brought in consequence within the terms of the act, and cannot be *348 required either to publish tariffs or to make reports. And the petition ought therefore, in my judgment, to be in all respects denied.