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; United States v. Union Stock Yards of Omaha, 161 Fed., 919; Belt Line R. R. v. United States, 168 Fed., 542; Union Stock Yards of Omaha v. United States, 169 Fed., 404.) 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) the safety appliance act 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 employees, 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 MacNamara 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 employers' liability act, the validity of which, so far as the District of Columbia is concerned, does not depend, as it is pointed out, on the right of Congress to legislate with 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 employees 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), 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 the 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 employees, 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 can not be required either to publish tariffs or to make reports. And the petition ought therefore, in my judgment, to be in all respects denied.

United States Commerce Court.

No. 15-OCTOBER SESSION, 1911.

UNITED STATES EX REL ATTORNEY GENERAL

v.

UNION STOCK YARD AND TRANSIT Co. ET AL.

ON PETITION FOR REHEARING.

Mr. Blackburn Esterline and Mr. William E. Lamb, special assistants to the Attorney General, for the United States.

Mr. Ralph M. Shaw for Union Stock Yard and Transit Co. of Chicago and for the Chicago Junction Railway Company.

Mr. Willard M. McEwen for Louis Pfaelzer & Sons.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

MACK, Judge:

[February 13, 1912.]

It is urged that this court, in the opinion heretofore filed, has too narrowly limited its jurisdiction in declining to consider whether or not the