of engineers, and any other documents, records, and papers, or copies of any or all of the same, in aid of such investigation and determination of the value of the property of said common carrier, * *."
The provisions of Section 1 above quoted are as amended by Section 400 of the Transportation Act, 1920. Prior to the passage of that Act, Section I had been amended by the Act of June 29, 1906, c. 3591, 34 Stat. 584, known as the Hepburn Act, so as to include the following provisions relating to pipe line companies:
"Sec. 1. That the provisions of this Act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shall be considered and held to be common carriers within the meaning and purpose of this Act, * * *."
These provisions remained in the Act until Section 1 was re-arranged and rephrased by the Transportation Act, 1920.
In 1906, when the Hepburn Act was passed, the Valvoline was not engaged in the interstate transportation of oil. It did not undertake that business until several years later. When it did so, it thereby assumed the status, by virtue of the provisions of the Hepburn Act, of a common carrier within the meaning and purpose of the Act. This followed from the very terms of the Act which, as we have seen, provided that the Interstate Commerce Act should apply to any corporation engaged in the interstate transportation of oil by means of pipe lines and that such a corporation should be considered and held to be a common carrier within the meaning and purpose of the Act. In other words, it imposed upon a pipe line company the status of a common carrier within the meaning of the Act as a condition of its engaging in the interstate transportation of oil. The Pipe Line Cases, U.S. v. Ohio Oil Co., 234 U.S. 548, 34 S. Ct. 956, 58 L. Ed. 1459; Pierce Oil Co. v. Phoenix Refining Co., 259 U.S. 125, 42 S. Ct. 440, 66 L. Ed. 855. The fact that the interstate transportation carried on by the Valvoline involved only oil which it itself owned did not operate to exclude it from the provisions of the Hapburn Act since that Act was not restricted to pipe line companies which were common carriers in a technical sense but included all pipe line companies engaged in the interstate transportation of oil with the exception of those merely engaged in transporting oil from their own wells to their own refineries for their own use. The Pipe Line Cases, supra.
It thus appears that the Valvoline had voluntarily assumed the status of a common carrier within the meaning and purpose of the Interstate Commerce Act prior to the passage of the Transportation Act, 1920. That Act, as we have seen, somewhat changed the language of Section 1 of the Interstate Commerce Act. It provided that the Act should apply to common carriers engaged in the interstate transportation of oil by pipe line and that the term "common carrier" as thus used should include "all pipe-line companies; * * * and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." We think that this rephrasing of the language of the Hepburn Act worked no change in its meaning. The language used must be construed to mean that all pipe line companies even though not technically common carriers are to be deemed common carriers as that term is used in the Act and that in addition all individuals or corporations engaged in transporting oil by pipe line as common carriers for hire are to be deemed common carriers within the meaning of the Act even though technically they are not pipe line companies. It necessarily follows that the Valvoline continued after the passage of the Transportation Act, 1920, to have the status of a common carrier within the meaning of the Interstate Commerce Act.
Section 19a of the Act authorizes the Commission to value the property of every common carrier subject to its provisions and requires such common carriers to furnish the Commission with such maps and such other information as it may require in aid of such a valuation. Proceeding under this statutory authority the Commission in the present case ordered the Valvoline to furnish information necessary for the purpose of valuing its property. This order, we think, was within its statutory power and was validly entered agaist the Valvoline as a common carrier subject to the Commission's jurisdiction.
The Valvoline argues, however, that its operations are so small as compared with the companies involved in the Pipe Line Cases, supra, that the application of the Interstate Commerce Act to its business would be unreasonable and arbitrary and would, therefore, deprive it of its property without due process of law in violation of the fifth amendment to the Constitution, U.S.C.A.Const. Amend. 5. It is well settled, however, that considerations of the size and importance of the business to be regulated are addressed to legislative discretion and not to legislative power. Brass v. State of North Dakota, Same v. Stoeser, 153 U.S. 391, 14 S. Ct. 857, 38 L. Ed. 757. Furthermore it appears that the business of the Valvoline, while not so extensive as that of the companies involved in the cases referred to, is essentially similar thereto in that it takes all oil meeting its specifications which is offered to it by the owners of the wells connected with its lines and to most of them it offers the only available market for their oil.
It is equally clear that the imposition upon the Valvoline of the status of a common carrier subject to the provisions of the Act as a condition of its engaging in interstate transportation did not amount to the taking of its property without just compensation in violation of the fifth amendment. We are satisfied that under the Commerce clause the Congress had power to impose such a condition upon those desiring to engage in the interstate transportation of oil by pipe line. See United States v. Delaware & Hudson Co., 123 U.S. 366, 29 S. Ct. 527, 53 L. Ed. 836; Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 31 S. Ct. 164, 55 L. Ed. 167, 31 L.R.A., N.S., 7; The Pipe Line Cases, supra; Edwards v. United States, 9 Cir., 91 F.2d 767.
We, therefore, decide that the Valvoline is subject to the provisions of Section 19a of the Interstate Commerce Act authorizing the Commission to value its pipe line property and requiring it to co-operate by furnishing relevant data. That is the only question involved in the case. The case does not involve, and we of course do not decide, any question as to the extent of the other obligations which may have been imposed upon the Valvoline by the Act. The court accordingly reaches the following conclusions of law:
The Valvoline Oil Company is a common carrier engaged in the interstate transportation of oil by pipe line within the meaning of the Interstate Commerce Act to the extent that it is subject to the provisions of Section 19a of the Act.
The order of the Interstate Commerce Commission entered June 6, 1938 directing the Valvoline Oil Company to comply with the provisions of the Commission's Valuation Order No. 26 was within the Commission's statutory powers and was constitutional.
The petition of the Valvoline Oil Company for an injunction enjoining the enforcement of the said order should be dismissed.
A decree dismissing the petition will be entered.
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