"As we well know the vocation of a common carrier of passengers is an evolution from that of a common carrier of goods. Classical definition of the latter is `any man undertaking for hire to carry the goods of all persons indifferently.' (Gisbourn v.Hurst, 1710, 1 Salk. 249.) And again, `To bring one within the description of a common carrier he must exercise it as a public employment; he must undertake to carry goods for persons generally and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice.' (Story on Bailments, Sec. 495.) *Page 353
"In extension of this definition the common carrier of passengers has been with accuracy defined as `One who undertakes for hire to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. This may be done not only by advertising but by actually engaging in the business and pursuing the occupation as an employment.' (Thompson on Carriers of Passengers, p. 26, note 1.)
"The meaning and extent of these definitions of a common carrier are emphasized by recognized definitions of a private carrier. `Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally, or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers because they do not make the carriage of goods for themselves or others a business and they do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever.' (Hutchinson on Carriers [3d ed.], § 35.)" (See, also, Allen v. Sackrider,37 N.Y. 341.)
In Gerhard Hey, Inc., v. Cattaraugus T. Co. (241 N.Y. 413) this court (McLAUGHLIN, J.) said (p. 417): "The difference between a common and a private carrier is well understood. A common carrier of personal property is one who agrees for a specified compensation to transport such property from one place to another for all persons that may see fit to employ him. (Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34;Stevenson Co. v. Hartman, 231 N.Y. 378, p. 381.) One is not a common carrier unless he indicates to the public that he is ready and willing to do business for all that may see fit to employ him `up to the capacity of his facilities.' (MichiganCommission v. Duke, 266 U.S. 570, p. 577; 2 Parsons on Contracts [9th ed.], 166.)" (Italics the court's.)
In Lough et al. v. Outerbridge et al. (143 N.Y. 271 [1894]), this court said (p. 276): "A common carrier is subject to an action at law for damages in case of refusal to perform its duties to the public for a reasonable compensation, or to recover back the money paid when the charge is excessive." *Page 354
As previously pointed out, the provisions of the Public Service Law are closely patterned after those of the Motor Carrier Act. When the Federal Act was under consideration by Congress, Mr. Joseph B. Eastman, then chairman of the Interstate Commerce Commission, testifying before the Senate Committee on Interstate Commerce, said: "A common carrier, under the law as I understand it, holds himself out to serve all shippers of the kind that he undertakes to serve within his territory, who may wish to be served by him. He cannot pick or choose. He has to take them as they come along, provided he has the facilities for them. A contract carrier does not undertake to do that at all. He does not hold himself out to carry for all alike. He is just a trader. He goes out and makes bargains with particular individuals or concerns. Those bargains may be long-term contracts. Some of the large industries employ contract truckers on a long-term basis. Or he may undertake to deal with individuals with respect to specific shipments, making contracts for specific shipments." (Hearings on S1629, S1632, S1635, Part I, 74th Congress, 1st Session, p. 69.)
In the case of N.S. Craig Contract Carrier Application (31 M.C.C. [Interstate Commerce Commission Reports] 705, 710), the Commission held that the statutory definitions contained in the Federal Act were declaratory of the common law. In that case, it was said (p. 710): "We affirm, therefore, the conclusion of the division that the statutory definitions as now amended are essentially declaratory of the common law. In other words, the fact or not of a public holding out remains the final or ultimate test of common carriage."
Article 1, section 2 (subd. 30, cl. d) of the Public Service Law (N.Y.) defines a contract carrier as follows: "The term `contract carrier by motor vehicle' means any person, not included in (b) of this paragraph, who or which under special and individual contracts or agreements, * * * transports property by motor vehicle for compensation." Provision (b) referred to in the foregoing definition consists of the definition of "common carrier by motor vehicle." Article 1, section 2 [subd. 30, cl. (i)] reads: "The term `private carrier by motor vehicle' * * * means any person not included in the terms `common carrier by motor vehicle' or `contract carrier by motor vehicle' who or *Page 355 which transports by motor vehicle property of which such person is the owner, lessee or bailee when such transportation is for the purpose of sale, lease, rent or bailment or in furtherance of any commercial enterprise."
Under the common law we find the use of the term "private carrier". It would appear that the Legislature in using the term "contract carrier" intended to embrace the common-law term of "private carrier." In 4 Williston on Contracts, section 1071, it is stated: "* * * It was formerly the merest truism that there were but two classes of carriers: the private carrier and the common or public carrier. In certain types of carriage there is now developing a further classification by subdivision of the private carrier category, so far chiefly confined to two classes: the `contract carrier,' carrying on a private contract basis for certain shippers, and the `private carrier' who carries its own products or products in which it has a property interest. This development is an outgrowth of legislative attempts to regulate not only common carriers by automobile, but those contract automobile carriers which transport the property of others over the highways for compensation as a regular occupation or business, * * *."
In Hutchison, Treatise on the Law of Carriers (3rd ed.), section 35, it is stated: "Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers, because they do not make the carriage of goods for others a business, and do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever; and hence the law does not compel them to accept and carry goods for anybody. Having never professed by their course of business, or in any other manner, to carry for all indifferently, they, unlike common carriers, may refuse at will to carry the goods which may be offered, without incurring any liability whatever, and may carry for one person and at the same time refuse to carry for another. But, being carriers for hire, their reward is regarded as the consideration for the undertaking and the consequent liability; and the trust being for the mutual benefit of the bailor and themselves, *Page 356 they belong to a different class of bailees from mandataries and incur a greater degree of responsibility."
Before the enactment of the Motor Carrier Act a "private carrier" was customarily one who did not undertake to carry for the public and whose transportation was done solely through contracts with its various customers. (See Michigan Commission v. Duke, 266 U.S. 570; Film Transport Co. v. Michigan PublicUtilities Commission, 17 F.2d 857; Ace-High Dresses v.Trucking Co., 122 Conn. 578; Stevenson Co. v. Hartman,231 N.Y. 378; Anderson v. Fidelity Casualty Co., 228 N.Y. 475,488; Terminal Taxicab Co. v. Dist. of Col.,241 U.S. 252.) It is clear under our statute [Pub. Serv. Law, § 2, subd. 30, cl. (d)] that a contract carrier is one who does not undertake to transport for the general public and who transports property by motor vehicle under special and individual contracts or agreements.
The statute defines a common carrier and a contract carrier. Whether the Commission applied the standards set up validly is a question of law. In Radio Comm'n v. Nelson Bros. Co. (289 U.S. 266, 276), HUGHES, Ch. J., expressed that clearly as follows: "The powers of the Commission were defined, and definition is limitation. Whether the Commission applies the legislative standards validly set up, whether it acts within the authority conferred or goes beyond it, whether its proceedings satisfy the pertinent demands of due process, whether, in short, there is compliance with the legal requirements which fix the province of the Commission and govern its action, are appropriate questions for judicial decision. These are questions of law upon which the Court is to pass. The provision that the Commission's findings of fact, if supported by substantial evidence, shall be conclusive unless it clearly appears that the findings are arbitrary or capricious, cannot be regarded as an attempt to vest in the Court an authority to revise the action of the Commission from an administrative standpoint and to make an administrative judgment. A finding without substantial evidence to support it — an arbitrary or capricious finding — does violence to the law. It is without the sanction of the authority conferred. And an inquiry into the facts before the Commission, in order to ascertain whether its findings are thus vitiated. *Page 357 belongs to the judicial province and does not trench upon, or involve the exercise of, administrative authority. Such an examination is not concerned with the weight of evidence or with the wisdom or expediency of the administrative action.Interstate Commerce Commission v. Illinois Central R. Co.,215 U.S. 452, 470; Interstate Commerce Commission v. UnionPacific R. Co., 222 U.S. 541, 547, 548; New England DivisionsCase, 261 U.S. 184, 203, 204; Keller v. Potomac ElectricPower Co., supra; Chicago Junction Case, 264 U.S. 258, 263, 265;Silberschein v. United States, 266 U.S. 221, 225; Ma-KingProducts Co. v. Blair, 271 U.S. 479, 483; Federal TradeCommission v. Klesner, 280 U.S. 19, 30; Tagg Bros. v.United States, 280 U.S. 420, 442; Federal Trade Commission v.Raladam Co., 283 U.S. 643, 654; Crowell v. Benson,285 U.S. 22, 49, 50." If the Commission did not follow the standards then it was not within the law. (People ex rel. N.Y. Queens GasCo. v. McCall, 219 N.Y. 84, 87, 88.) Whether a carrier is a contract or common carrier, after considering all the facts which are here uncontradicted, is a question of law. In Stevenson Co. v. Hartman (HISCOCK, Ch. J., 231 N.Y. 378), the question whether a carrier was a common or private carrier was treated as one of law. As a matter of law the Commission erroneously construed the meaning of the language of the statute. The uncontradicted testimony was that Applicant was not engaged in transporting property for the general public. There was, of course, as indicated (supra), no finding that it was. The service rendered was pursuant to private contracts with customers, in which no one else was interested and no benefit or disadvantage accrued to any other person by the rendition of that service. There was here no holding out by Applicant that it would serve the public indifferently to the limit of its capacity. It made no profession to carry for all, and was under no obligation to take whatever goods might be tendered. It made such contracts as it saw fit and at prices agreed upon. The contracts here were entered into generally after a survey of the customer's trucking needs. In some cases Applicant has taken over the customer's trucks and drivers. Special type services are rendered. An undertaking to transport for the general public would be inconsistent with appellant's contract obligations to its customers. *Page 358
In view of the facts disclosed here, the language quoted from the two following cases seems particularly apt. In FrostTrucking Co. v. R.R. Com. (271 U.S. 583, 592) it was said: "That, consistently with the due process clause of the Fourteenth Amendment, a private carrier cannot be converted against his will into a common carrier by mere legislative command, is a rule not open to doubt * * *. It was expressly so decided in MichiganCommission v. Duke, 266 U.S. 570, 577-578. See also, Hissem v. Guran, 112 O.S. 59; State v. Nelson, 65 Utah 457, 462."
In Michigan Commission v. Duke (266 U.S. 570), the court said at page 577: "* * * One bound to furnish transportation to the public as a common carrier must serve all, up to the capacity of his facilities, without discrimination and for reasonable pay. The act would put on plaintiff the duty to use his trucks and other equipment as a common carrier in Michigan, and would prevent him from using them exclusively to perform his contracts. This is to take from him use of instrumentalities by means of which he carries on the interstate commerce in which he is engaged as a private carrier and so directly to burden and interfere with it. * * *" (See, also, Film Transport Co. v.Michigan Public Utilities Commission, 17 F.2d 857; Smith v.Cahoon, 283 U.S. 553.)
We have not overlooked the case of Cornell Steamship Co. v.U.S. (321 U.S. 634, 638). In that case, however, the Supreme Court said: "The commission found from evidence offered that Cornell did so hold itself out to the general public. Upon review the District Court held the commission's finding was supported by substantial evidence. The opinions of the commission and the District Court showed the evidence relied on and it is unnecessary to repeat it here. Sufficient it is to say that we agree with the District Court's conclusion."
The opinion of the District Court will be found reported in53 F. Supp. 349 and on page 352 it was pointed out that: "In making its finding that the plaintiff, pursuant to the Act, is a common carrier, because it held itself out as such, the Commission referred in particular to the testimony of plaintiff's president set forth in the footnote.[4]"
We think that the testimony quoted in footnote 4 completely distinguishes the Cornell case from the instant one. *Page 359
The order of the Appellate Division should be reversed, with costs; the determination and orders of the Public Service Commission here in issue should be set aside and annulled, and the Commission should be ordered and directed to issue to appellant a permit to engage in the transportation as a contract carrier of commodities generally within the territory and to and from the points where the evidence shows it to have been engaged in operation on February 1, 1938, and continuously since that time.