companies or railroads or both combined, cannot purchase land by rebating to the grantor a part of the freight rate on interstate shipments over the road built on the right of way, even though the amount of such rebate was much less than the value of the land thus acquired. Cf. Louisville & Nashville Ry. Co. v. Mottley, 219 U. S. 467; United States v. Lehigh Valley Railroad, 220 U. S. 257; United States v. Union Stock Yards, 226 U. S. 287, 308.

The Commerce Act prohibits the payment of rebates, and its command cannot be evaded by calling them differentials or concessions, nor by taking the money from the Railroad itself or from a company that is proved to be the same as the Railroad. Otherwise nothing would be easier than for lumber companies to charter a railroad, collect freight as a railroad, but pay it out as a lumber company to shippers.

The suit in the present case proceeds on the theory that the Fourche Lumber Company and the Fourche Railroad are the same and that therefore the division of the through rate allowed to the Railroad was in fact received and enjoyed by the Lumber Company. And yet, notwithstanding that fact, it is claimed that if the Fourche Lumber Company should, under the contract, pay a part of that freight to the Bryant Company it would do so as a saw-mill and not as a carrier. The law will not permit such a chameleon-like change. The Fourche Lumber Company and the Fourche Railroad are either the same or different. If they are the same it cannot refund a part of the rate to the Bryant Company. If they are different the Fourche Lumber Company was not bound by the terms of the contract to make the payment now demanded. The court below found that they were the same and not different, and it results that its judgment must be

Reversed.

Argument for Appellants.

230 U.S.

OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY v. INTERSTATE COMMERCE COMMISSION.

APPEAL FROM THE UNITED STATES COMMERCE COURT.

No. 458. Argued February 19, 20, 1912.-Decided June 9, 1913.

The meaning of the Act to Regulate Commerce and whether it applies to street railways carrying passengers over a state line cannot be determined from statements made in Congress during the debates on the bill; the act must be interpreted by its own terms as looked at in the whole.

In terins the Act applies to all carriers engaged in the transportation of passengers or property by railroad, and the scope of the act depends on the definition of the word "railroad" as used in 1887 when the act was originally passed.

Street railways for passengers only, as they existed in 1887, were not within the contemplation of Congress in passing the Act to Regulate Commerce, such railroads are not subject to its provisions or under the jurisdiction of the Interstate Commerce Commission even though they carry passengers across the state line.

Quare to what extent since the passage of the act of June 18, 1910, interstate railways doing passenger, freight and express business are now under the jurisdiction of the Interstate Commerce Commission, and if so, to what extent.

191 Fed. Rep. 40, reversed, and 179 Fed. Rep. 243, affirmed.

THE facts, which involve the jurisdiction of the Interstate Commerce Commission over certain classes of street railway systems, are stated in the opinion.

Mr. John Lee Webster, with whom Mr. Frederic D. McKenney was on the brief, for appellants:

The original and amendatory statute regulating commerce at the time said order was made, did not include street railway companies. The term "railroad" in said act applies only to commercial railroads as distinct from street railway companies.

230 U. S.

Argument for Appellants.

See express statement to that effect by Senator Cullom, chairman of the committee having the bill in hand. Cong. Rec., Vol. 17, Pt. IV, p. 3472; Wilson v. Rock Creek Railway Co., 7 I. C. C. Rep. 83.

The word "railroad" as used in the constitutions and statutes of the various States does not include street railway companies, and street railway corporations are not governed by laws relating to railroads. This distinction between the two kinds of railroads was well known at the time of the passage of the act to regulate com

merce.

In the following cases the word "railroad" as used in the constitutions and statutes of the several States does not include a street railway. Street railways are not included in fellow servant acts, in railway commission acts, in judgment lien acts, and other laws enacted to govern and control railroads, unless specifically mentioned therein. Street Ry. Co. v. Cedar Rapids, 106 Iowa, 467; Funk v. St. Paul Ry. Co., 61 Minnesota, 435; Lincoln Traction Co. v. Webb, 73 Nebraska, 136; Daily v. Milwaukee & E. R. L. Co., 119 Wisconsin, 398; Lincoln Street R. R. Co. v. McClellan, 54 Nebraska, 672; Omaha Street R. Co. v. Boesen, 74 Nebraska, 765; Railroad Co. v. Railroad Commissioner, 73 Kansas, 168; State v. Cain, 69 Kansas, 186; Manhattan Trust Co. v. Sioux City Cable Ry. Co., 68 Fed. Rep. 82; Bridge Co. v. Iron Co., 59 Ohio St. 179; Front Street Cable Ry. Co. v. Johnson, 2 Washington, 112; Louisville &c. Ry. Co. v. Louisville City Ry. Co., 2 Duvall (Kentucky), 175; In re New York District Ry. Co., 107 N. Y. 42; Railroad Commissioners v. Market Street R. R. Co., 132 California, 677; Thompson-Houston Co. v. Simon, 20 Oregon, 60; Sams v. St. Louis Ry. Co., 174 Missouri, 53; State v. Duluth Gas Co., 76 Minnesota, 96; Gyger v. West Phila. Ry. Co., 136 Pa. St. 16; Riley v. Galveston City R. R. Co., 35 S. W: Rep. 826; State v. Lincoln Traction Co., Nebraska, Jan. 3, 1912; Sears v. Railway Co., 65 Iowa, 742; Freiday v. Sioux

Argument for Appellants.

230 U.S.

City Transit Co., 92 Iowa, 191; Massachusetts Trust Co. v. Hamilton, Rep. 588.

Under the constitution and laws of Nebraska, appellant is a street railway and is not a street railroad.

There is a well defined and marked distinction between railroad corporations and street railway corporations under the constitution and laws of the State of Nebraska. Lincoln Street Railway v. McClellan, 54 Nebraska, 672; Omaha Street Ry. Co. v. Boesen, 74 Nebraska, 764; Lincoln Traction Co. v. Webb, 73 Nebraska, 136; Tyrrell v. Lincoln Traction Co., January 3, 1912.

Appellant is incorporated as a street railway company under the laws of the State of Iowa which also recognize the well defined distinction between street railways and railroads. Sears v. Railway Co., 65 Iowa, 742; Freiday v. The Sioux City Transit Co., 92 Iowa, 191; City R. R. Co. v. Cedar Rapids, 106 Iowa, 476.

The dual functions of a commercial railroad and a street railway cannot be combined in the same corporation. Gillette v. Aurora Ry. Co., 228 Illinois, 261; Chicago & Southern Traction Co. v. Flaherty, 222 Illinois, 67; ́Bradley Mfg. Co. v. Traction Co., 229 Illinois, 170, 176.

The Act to Regulate Commerce has been under discussion, and various amendments have been made thereto since its first enactment in 1887. If Congress intended to extend said act to include street railways why has not such amendment been made when other amendments were being made to the act?

In deciding whether the Act to Regulate Commerce applies to street railways it is proper to consider the inconveniences that would result to the public by compelling interchange of freight and cars and passengers between commercial railroads and street railway companies, as well as the fact stated supra that there exists no necessity, nor public dema d for the regulation of street railway companies by the Interstate Commerce

230 U.S.

Argument for the Interstate Commerce Commission.

Commission. Michigan Ry. Co. v. Hammond Electric Ry. Co., 83 N. E. Rep. 650; Massillon Bridge Co. v. Cambria Iron Co., 59 Ohio St. 179.

The order of the Commission is void because it was beyond the scope of the complaint, and for the further reason that the effect of the order is to require appellant to receive and carry in its cars to all points within the city of Omaha, and without compensation, persons who have paid a fare of ten cents to ride on the bridge line from Council Bluffs, Iowa, to the eastern boundary of the city of Omaha, and is therefore a direct interference with what is intrastate business.

Mr. Charles W. Needham for the Interstate Commerce Commission:

The power of Congress to regulate commerce is not confined to any particular agency or instrumentality. Gibbon v. Ogden, 9 Wheat. 1, 196; McCulloch v. Maryland, 4 Wheat. 316; Employers' Liability Case, 207 U. S. 493; Hopkins v. United States, 171 U. S. 597.

It embraces all the instruments by which such commerce may be conducted. Welton v. Missouri, 91 U. S. 275; citing Mobile County v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Hooper v. California, 155 U. S. 648, 653; United States v. E. C. Knight Co., 156 U. S. 1.

Commerce as used in the commerce clause of Constitution has reference to transportation, that is, the movement of either property or persons. Chicago R. R. Co. v. Fuller, 17 Wall. 560.

Congress exercises its regulating power by direct and appropriate legislation and in this case through the Interstate Commerce Commission acting under the powers granted by the Act to Regulate Commerce. See the Act to Regulate Commerce, as amended, and the acts supplementary thereto, see also Texas R. Co. v.