(dissenting). Finding myself unable to concur in the conclusion reached by the majority of the court, I have thought proper, in view of the importance of the case, to briefly assign the reasons which control my judgment.
*919We have nothing to do with the wisdom of the order. The findings of the Commission are presumed to be true, and to have justified its action, if only the power to exercise it exists. On this question of power alone, the Commission was divided. If there rested no legal duty on the carrier to provide the transportation called for, it follows that the Commission was without power to make the order in question. The conclusion of the court adverse to the action of the Commission, is concisely set forth in the concluding portion of the majority opinion thus:
“Tlie 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 lind 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.”
This is the issue, and the solution of the question must be found mainly in the proper interpretation of the term “transportation,” as used in the amendment of 1906.
In the original act of February 4, 1887, it is said:
‘‘The term ‘transportation’ shall include all instrumentalities of shipment or carriage.'’
These words are clearly comprehensive enough to include cars as an instrument of shipment. But we need not stop to conjecture as to their full breadth and meaning. It is sufficient that Congress thought proper to enlarge the scope of the term “transportation” by providing in the act of 1906 as follows:
“The term ‘transportation’ shall 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, and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable retines! therefor, and to establish through routes and just and reasonable rates applicable thereto.”
This, instead of being a concise and accurate definition of the term “transportation,” is rather a legislative declaration of what the term shall include. Much broader than the words, “all instrumentalities of shipment and carriage,” in the original act, are the words of the amendment, “cars and other vehicles and all instrumentalities and facilities of shipment or carriage.” The very comprehensive words “facilities of shipment and carriage” were a significant addition to the original act. These words are again made more comprehensive by the words which follow:
“Irrespective of ownership or of any contract, express or implied, for the use thereof.”
Whether held by the carrier by purchase, hire, exchange, lease, bailment, or any contract for their use, express or implied, they are to be regarded as the instruments of the carrier, and the shipper, as well *920as the Commission, is thus relieved of the annoyance of dealing with more than one person. The scope of the term transportation is again enlarged by the use of the words:
“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 thus defined transportation, it is then declared to be the duty of every carrier, subject to the provisions of the act, to provide and furnish such transportation upon reasonable request therefor.
Whatever may have been the duty resting on a carrier at common law to furnish transportation for the shipper’s property, it admits of no doubt that the furnishing of transportation, as defined by the act, has been made a clear statutory duty of the carrier. As was said by Chief Justice White in Chicago, R. I. & Pac. R. R. Co. v. Hardwick Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203:
“The purpose of Congress to specifically impose a duty upon a carrier in respect to the furnishing of cars for interstate traffic is of course by these provisions clearly declared. * * * Not only is there then a specific duty imposed to furnish cars for interstate traffic upon reasonable request therefor, but other applicable sections of the act to regulate commerce give remedies for the violation of that duty.”
It is plainly the duty of the carrier, not only to furnish cars on reasonable request, but to furnish cars reasonably suitable.for the proper transportation of the freight to be shipped. This general proposition is stated by Hutchinson on Carriers, § 536, as follows:
“If the goods are of such a nature as to require for their protection some other kind of car than that required for ordinary goods, and cars adapted to the necessity are known and in customary use by carriers, it is the duty of the carrier, where he accepts the goods, to provide such cars for their carriage.”
In Covington Stockyards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73, Justice Harlan, speaking for the Supreme Court, said:
“The railroad company, holding itself out as a carrier of live stock, was under a legal obligation, arising out of the nature of its employment, to provide suitable and necessary means and facilities for receiving live stock offered to it for shipment over its road and connections, as well as for discharging such stock after it reaches the place to which it is consigned. The vital question in respect to such matters is whether the means and facilities so furnished by the carrier or by some one in its behalf are sufficient for the reasonable accommodation of the public.”
In the same opinion the court says:
“The carrier must at all times be in proper condition both to receive from the shipper and to deliver to the consignee, according to the nature of the property to be transported, as well.as to the necessities of the respective localities in which it is received and delivered.”
This case, assuming that proper facilities for the trasportation of the stock must be furnished, goes further, and extends the duty of the carrier to providing suitable means for its receipt and discharge.
If, then, it is the duty of the carrier on reasonable request to fur*921nisli coal cars to the shipper of coal, stock cars to the shipper of live stock, fruit cars with refrigeration for the shipper of fruit, on no principle could the oil shipper be denied cars reasonably suited for the shipment of oil. The word “reasonable,” as used in the act, is a qualifying and saving term. Not merely the demands and needs of the shipper are to be considered, but the circumstances of the carrier and the rights of the public as well. The fitness and efficiency of the transportation requested, whether the facilities of shipment would be made belter and more economical, the public advantage to be derived - therefrom, the cost and expense in relation to the benefit resulting, all the circumstances, time and place and means, as affecting the carrier and its ability to supply the transportation demanded — these and all other relevant matters may be considered in determining the reasonableness of the shipper’s demand. If the request be reasonable, it is the legal duty of the carrier to comply with it; if unreasonable, no such duty devolves upon the carrier. And this question of fact, in case of dispute, the Commission must decide. Almost all duties are relative rather than absolute, and the exercise of a clearly vested power largely depends upon the facts which call for its exercise. Even the clearly expressed duty of the carrier to furnish cars on reasonable request is not absolute. Hampton v. St. L., Iron Mt. & S. Ry. Co., 227 U. S. 467, 33 Sup. Ct. 263, 57 L. Ed. 596. Thus the right of the shipper to demand transportation, on the one hand, is conditioned on the fact that his request be reasonable; and the duty, on the other, to comply is not absolute, but dependent on the facts of the case. We are not passing on some abstract proposition as to the power of the Commission to order, without restraint, the equipment and furnishing of cars, without reference to conditions or circumstances. We are passing on a concrete question based on specific facts, conclusively found by the Commission. It would be easy to imagine on the part of a shipper an unwarranted and unreasonable request, and on the part of the carrier an arbitrary and unjust denial of a reasonable demand. The Interstate Commerce Commission is the tribunal standing between the parties, with power to hear and determine, and especially competent by reason of experience to determine, with justness and uniformity of decision.
I cannot agree with the proposition that the duty imposed upon the carrier to furnish cars is limited to those which the carrier may have on hand, or that there is no obligation to acquire facilities it does not possess, or to acquire better facilities to meet the reasonable demands of the shippers. 1 base my conclusion on the words of the act itself:
“It shall bo the duty of every carrier subject to the provisions of this act to provide and furnish such transportation on reasonable request therefor.”
No words more specific or definite than “provide and furnish” could have been chosen. I find no limitation of any kind in the act upon the duty thus imposed upon the carrier, except only that the request therefor be reasonable. There are no words from which it can fairly be assumed that existing ownership or control is a prerequisite to the carrier’s duty to provide and furnish. From the explicit words *922of the act, it would seem to follow that if a reasonable request is made for cars and the carrier does not possess them, it must acquire them for use,o by one of the many methods for their acquisition. If not, this most important provision of the statute would be rendered largely nugatory. -Perhaps the most effective blow which Congress could deal at discrimination in interstate traffic is the duty imposed on the carrier to furnish transportation. There could be no more prolific source of discriminatory practices than the right in the carrier to grant or withhold the means of transportation at its discretion. The demands of the favored shipper would be met by promptly acquiring and furnishing the transportation called for. “We do not have what you demand” would be a conclusive answer to the less favored. The flow of commerce is more vital, even, than that it be free from discrimination and preference. If the primary object of the.act is to prevent discrimination, Congress evidently realized .that the most effective method of prevention is to remove the opportunity for discrimination. We must assume that, if Congress had intended to set limitations on that duty, it would have done so in apt words, as it did with reference to other provisions of the act. For instance, the duty of the carrier to construct and operate switch connections with any lateral branch line of railroad, or private side track, is conditioned that such connection is reasonably practicable, and can be put in with safety, and will furnish sufficient business to justify the connection -and maintenance of the same, and shall furnish cars for the movement of such traffic to the best of its ability. Again, the carrier’s duty to furnish facilities for the interchange of traffic between their respective lines is qualified by the expression “according to their respective powers.” It is highly significant, therefore, that the more important duty to furnish transportation has no limitation or condition, except upon the reasonable request of the shipper.
If the wisdom of the order in question, or its necessity, needed justification, it appears in the conclusive finding of the Commission that 91 per cent, of the refined oil of the country is shipped in tank cars at a great economic gain. I would therefore dismiss the petition of the complainant company.