WOOLLEY, Circuit Judge
(after stating the facts as above). The proceeding now before the court was instituted and conducted under section 13 of the act to1 regulate commerce (Comp. St. 1913, § 8581), giving to any person complaining of anything done or omitted to be done by a common carrier in contravention of the provisions of the act, the right to apply to the Interstate Commerce Commission for redress; and after a finding adverse to the carrier, the order entered was made under section 15 of the act, which provides in effect that whenever, after hearing, the Commission shall be of opinion that a practice of a carrier is unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial or otherwise in violation of any of the provisions of the act, the Commission is authorized and empowered to determine and prescribe what practice is just, fair and reasonable, and to order tlie carrier to cease and desist from the unlawful practice, and thereafter to conform to and observe the regulation or practice prescribed, under penalty of five thousand dollars for each offense.
The practice of the railroad company found by the Commission in this instance to he violative of the statute, is not that the railroad company discriminated against the shipper by an unequal distribution of tank cars. It is conceded that the Commission may require a carrier to desist from a discriminatory practice in car distribution. This is one of the admitted powers of the Commission to be exerted over a carrier in the use of the instrumentalities which it possesses. What [914] the Commission found was that the railroad company was guilty of an unjust and an unreasonable practice in not possessing or in not acquiring and furnishing tank cars in sufficient number to meet the requirements of the complainants’ business.
The question in this case, in the abstract, is whether the act to regulate commerce as amended, imposes upon a carrier the duty to acquire and to- provide and furnish transportation of a type that, physically or economically, is best adapted to the needs and uses of the shipper, of which the Interstate Commerce Commission is the judge. The precise question is whether the Interstate Commerce Commission has power to compel the Pennsylvania Railroad Company to ■ purchase and acquire tank cars for the shipment of oil, and to provide the same to complaining shippers upon requests which the Commission may adjudge reasonable.
For the validity of its order, the Interstate Commerce Commission relies upon several provisions of the act to regulate commerce as amended, and upon certain changes and differences in the act created by its amendments. The first section of the act, both in its original and amended state, contains definitions of different branches of the subject with which the act deals. The terms “common carrier,” “railroad” and “transportation” are, by express language, given their statutory meaning. Section 1 of the act of 1887 provides that “the term ‘transportation’ shall include all instrumentalities of shipment or carriage.” As amended by the act of 1906, the term /‘transportation” is enlarged and is made to “include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported.” Having stated of what transportation consists, the section prescribes it to “be the duty of every carrier * * * to provide and furnish such transportation upon rea-, sonable request therefor.”
Excerpts from several opinions of the Supreme Court were cited in support of the Government’s contention that a railroad company, holding itself out as a carrier, is under a legal obligation arising out of the fact of its employment, to provide transportation means and facilities commensurate with the demands of shippers, without regard to whether they possess them or have tire money with which to acquire them. These excerpts were, of course, not cited as decisive of the question in issue, because upon examination it is disclosed that the cases from which they were taken were decisive of matters altogether different. These expressions of the Supreme Court, standing alone and considered without reference to the facts of the cases in which they appear, seem to support the Government’s contention, but an examination of the cases discloses that the suitable and necessary means and facilities which the Supreme Court has said the carrier must provide, have especial reference and relation to the facts of those cases, which in nearly every instance present questions of discrimination or of “service in connection with the receipt, delivery, elevation and transfer in [915] transit, ventilation, refrigeration or icing, storage and handling of property transported,” as specifically provided by the statute. In none of them was the question raised or decided nor in any did the Supreme Court reveal its opinion as to whether there devolved upon a carrier a statutory duty to provide and furnish transportation of a type it did not possess, or to acquire such transportation in order to provide and furnish the same upon reasonable request. Railroad Co. v. Pratt, 22 Wall. 123, 128, 22 L. Ed. 827; Covington Stockyards Co. v. Keith, 139 U. S. 128, 133, 11 Sup. Ct. 469, 35 L. Ed. 73; Arlington Heights Fruit Exchange v. Southern Pacific Co., 20 Interst. Com. Com’n R. 106, affirmed by the Supreme Court in Atchison Ry. Co. v. United States, 232 U. S. 199, 34 Sup. Ct. 291, 58 L. Ed. 568; Chicago, Rock Island & Pacific Ry. Co. v. Hardwick Farmers’ Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; Missouri, Kansas & Texas Ry. Co. v. Harris, 234 U. S. 412, 418, 34 Sup. Ct. 790, 58 L. Ed. 1377; Yazoo & Mississippi Valley R. R. Co. v. Greenwood Grocery Co., 227 U. S. 1, 33 Sup. Ct. 213, 57 L. Ed. 389; St. Louis, Iron Mountain & Southern Ry. Co. v. Edwards, 227 U. S. 265, 33 Sup. Ct. 262, 57 L. Ed. 506; Hampton v. St. Louis, Iron Mountain & Southern Ry. Co., 227 U. S. 456, 33 Sup. Ct. 263, 57 L. Ed. 596; Penn Refining Co. v. Western New York & Pennsylvania R. R. Co., 208 U. S. 208, 28 Sup. Ct. 268, 52 L. Ed. 456; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075; Baltimore & Ohio R. R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292.
There is thus presented for decision, with little if any aid from previous deliverances by the courts, the original question which divided the Interstate Commerce Commission in this case and in the case of Vulcan Coal & Mining Co. v. I. C. R. R. Co., 33 Interst. Com. Com’n R. 52, whether the duty imposed upon a carrier to provide and furnish cars to the shipper is the duty imposed by the common law or is a different and a broader duty prescribed by the statute, and whether the power of the Interstate Commerce Commission to prevent undue preference and unjust discrimination in the use of a carrier’s cars has been enlarged and expanded into a power to control the “practice” of carriers, by determining and prescribing the type and character of “all [their] instrumentalities and facilities of shipment or carriage,” in order to procure for the shipper a better, safer and more economic transportation service.
In seeking the authority of the Commission to make the order in controversy, we have nothing to do with the merit of the order, the injustice of the practice found to exist, or the wisdom of the practice established (Texas & Pacific Ry. Co. v. I. C. C., 162 U. S. 197, 219, 16 Sup. Ct. 666, 40 R. Ed. 940; I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144, 170, 18 Sup. Ct. 45, 42 L. Ed. 414); nor have we anything to do with the effect of the order upon private car lines. We are concerned only with the law under which the order was made and the Commission acted, assuming its finding of fact to be conclusively correct (I. C. C. v. Illinois Central Ry. Co., 215 U. S. 452, 30 Sup. [916] Ct. 155, 54 L. Ed. 280; Baltimore & Ohio R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292; Pennsylvania Co. v. United States, 236 U. S. 351, 361, 35 Sup. Ct. 370, 59 L. Ed. 616).
The question of the duty of the carrier, and the correlative question of the Commission’s power to enforce the performance of that duty, as they are presented in this case, had their rise in a change in the definition of the term “transportation” made by the amendment of 1906. Section 1 of the original act prescribed that “the term ‘transportation’ shall include all instrumentalities of shipment or carriage.” Instrumentalities of shipment of course include cars, and cars have been treated' as such from the date of the act to the date of its. amendment in 1906. But in Scofield v. Eake Shore & Michigan Southern Ry. Co., 2 Interst. Com. Com’n R. 67, 76, 4 Interst. Com. Com'n R. 158, the Interstate Commerce Commission considered that the sole duty of a carrier to furnish cars was that imposed by the common law, and that the statute creating the Commission did not clothe it with power to determine the instrumentalities of shipment to be employed by a carrier or to require a carrier to use in its business the kind and number of cars which the Commission may deem, necessary for a proper car service. In discussing this case, the Commission said:
That “the power if it should be held to exist at all, on the part of the Interstate Commerce Commission to require a carrier to furnish tank cars when that carrier is furnishing none whatever in its business, would apply equally to sleeping cars, parlor cars, fruit cars, refrigerator ears, and all manner' of cars as occasion might require, and would be limited only to the necessities of interstate commerce and the discretion of the Interstate Commerce Commission. A power so extraordinary and so vital, reached by construction, could not justly rest upon any less foundation than that of direct expression or necessary ■implication, and we find neither of those in the statute.”
It is contended, however, that by the amendatory act of 1906, changing the definition of the term “transportation,” there is such direct statutory expression conferring such extraordinary power, and that the measure of duty theretofore resting upon the carrier to furnish cars was changed from a common law duty, with resort to the courts for its violation, to a statutory duty, with redress for its violation by the Interstate Commerce Commission. The act of 1906 as before quoted, prescribes that “the term ‘transportation’ shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage” and certain defined services to be rendered in connection therewith. The services defined are the principal additions to the definition, and relate to the receipt, delivery, transfer, ventilation, refrigeration, storage, and handling, of property transported. With tírese we have nothing,to do in this case, except to note that they constitute the principal, if not the entire, additions to the old definition, and are subject matters of the Commission’s control not embraced in the original act. .While the word “cars” was not used in the definition of transportation as contained in the original act, it has never been doubted that in the words “instrumentalities of shipment” and within the term “transportation,” cars were included.
[917] The definition of tlie term “transportation” as it appears in the amendment of 1906, so far as it relates to cars, does nothing more than express what was implied in the original definition and contains nothing which suggests that in furnishing transportation there shall rest upon the carrier a duty to furnish cars of a kind different from those required of the carrier under the original act.
We find no case prior to the amendatory act of 1906 which questioned that cars were instrumentalities of shipment or carriage. If such a question existed, then the act of 1906 naming afrs as one of tlie instrumentalities of shipment, might have been a change with a purpose, creating a difference in legal effect.
In seeking- the effect of the amendment of 1906, inquiry may be made with respect to the purpose of Congress in enacting it. It is apparent from tlie addition to the definition of “transportation” contained in the amendment, that Congress intended and clearly succeeded in including within that term certain services which, theretofore, had not been embraced within it and over which Congress deemed it advisable that the Interstate Commerce Commission should have power and control, 'filíese were ventilation, refrigeration, icing, storage and handling- of property transported. This power was conferred upon tlie Commission for the avowed purpose, among others, of relieving the shipper of the task and annoyance of dealing with more than one person. These were new matters and therefore were additions to what was meant by transportation, as defined in the original act. But the addition of the word “cars” in the amendment made no addition to the definition in the original act, because cars were already embraced within it.
We find nothing in tlie original or amended act which, by express language, imposes upon a carrier the extraordinary duty or confers upon tlie Interstate Commerce Commission the extraordinary power claimed by the government in this proceeding. If they exist, they can be found only by implication, and it is doubtful if Congress would leave to implication an intention to impose so onerous a duty and to grant so great a power. On the other hand, we find in tlie act, by clear expression, duties imposed upon carriers which are not absolute in their nature, but are qualified by the ability of the carriers to conform to the duties prescribed.
Tlie provision of the act requiring a carrier to maintain and operate switch connections with lateral or branch line railroads, appearing in tlie last paragraph of the first section of the act, imposes upon a carrier tlie duty to “furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper.” The words, “to the best of its ability,” of course, qualify the duty to maintain switch connections, and do not qualify the prohibited discrimination.
Again, in section 3 of the act (Comp. St. 1913, § 8565), it is provided that:
“Every common carrier * * * shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property.”
[918] Here again, the carriers’ duty to provide and furnish facilities of transportation is not absolute. The duty is laid upon them “according to their respective powers.” Such expressions rather raise the implication that Congress did not intend to place an absolute and unqualified duty upon carriers to furnish cars of a certain type whether they had them or not, and if they did not have them then to acquire them whether they had the money or not. Restricting our construction of the act to its words, and finding nothing by implication that changes or qualifies their meaning, we are of opinion that the amendment of 1906, including cars within the definition of “transportation,” added nothing to the original duty of the carrier as prescribed by the original act and as interpreted by the Commission, and vested in the Commission no increase of power over cars as instrumentalities of shipment. If, under the act as'amended, no different or greater duty is imposed upon a carrier with respect to furnishing and providing cars than was prescribed by the original act, then the practice of the carrier found unlawful in this case was not in violation of the statute, and the order of the Commission, directing the carrier to desist from that practice, was an exercise of power not conferred by law.
The act to regulate commerce does not confer upon the Interstate Commerce Commission all power over cars and other instrumentalities of shipment. Congress has reserved unto itself, and from time to time has exercised, power to control and regulate certain instrumentalities of shipment, notably by the acts establishing the standard height of draw bars, prescribing safety appliances and regulating the hours of service of the carriers’ employés. But aside from special enact•ments of this class, federal legislation regulating commerce, in so far at least as it is contained in the act of 1887 and its amendments, has thus far left carriers free to exercise their own judgment in the purchase,'construction and equipment of their roads and in the selection of their rolling stock. By this legislation, federal control has been assumed over the use to which the carriers’ roads and equipment are put, to the end that the flow of .commerce, in the employment of those instrumentalities, may not be impeded, and that unjust rates shall not be charged and unfair practices pursued bo the injury of persons and localities. The law clearly confers upon the Commission power to so regulate the use of the facilities possessed by the carrier that there shall be no unjust discrimination, but we find nothing in the law which confers upon the Commission power to compel a carrier to acquire facilities it does not possess or to acquire better facilities than those it possesses, not with the object of preventing discrimination and preferences, but in order that the shipper may have larger, better, and perhaps more economical facilities. We are of opinion that in making the order, the Interstate Commerce Commission exceeded its statutory power, and that the order should be suspended and annulled in accordance with the prayer of the petition.