Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 61 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 61 of 214)
Font size
QR-code for this ebook


7]0.

13. Gratuitous carriage. — American Exp.
Co. V. United States, 212 U. S. 522, 53
L. Ed. 635, 29 S. Ct. 315; United States
V. New York, etc., R. Co., 212 U. S. 509,
53 L. Ed. 629, 29 S. Ct. 313.

14. Navigation. — 2 Story on the Con-
stitution, §§ 1057, 1061, 1062; Gibbons v.
Ogden (U. S.), 9 Wheat. 1, 190, 6 L. Ed.
23; Case of the State Freight Tax (U.
S.), 15 Wall. 232. 21 L. Ed. 146; State
Tonnage Tax Cases (U. S.), 12 Wall.
204, 20 L. Ed. 370; Steamship Co. v. Jo-
liffe (U. S.), 2 Wall. 450, 17 L. Ed. 805;
Lord V. Steamship Co., 102 U. S. 541, 26
L. Ed. 224; County of Mobile v. Kim-
ball, 102 U. S. 691, 26 L. Ed. 238; Kidd v.
Pearson, 128 U. S. 1, 20, 32 L. Ed. 346,9



S. Ct. 6; McCall v. California, 136 U. S.
104, 34 L. Ed. 392, 10 S. Ct. 881; Glou-
cester Ferry Co. v. Pennsylvania, 114 U.
S. 196, 29 L. Ed. 158, 5 S. Ct. 826; Addy-
ston Pipe, etc., Co. v. United States, 175
U. S. 211, 44 L. Ed. 136, 20 S. Ct. 96;
Lindsay, etc., Co. v. Mullen, 176 U. S.
126, 44 L. Ed. 400, 20 S. Ct. 325; Scran-
ton V. Wheeler, 179 U. S. 141, 45 L. Ed.
126, 21 S. Ct. 48; Williams v. Fears, 179
U. S. 270, 45 L. Ed. 186. 21 S. Ct. 128;
Wabash, etc., R. Co. v. Illinois, 118 U. S.
557. 30 L. Ed. 244, 7 S. Ct. 4.

Commerce with foreign nations in-
cludes navigation, as the principal means
by which foreign intercourse is effected.
Henderson v. New York, 92 U. S. 259,23
L. Ed. 543.

15. Railroad Co. v. Husen, 95 U. S. 465,
24 L. Ed. 527.

16. Intercourse and traffic. — County of
Mobile V. Kimball, 102 U. S. 691, 26 L.
Ed. 238; Kidd v. Pearson, 128 U. S. 1, 20,
32 L. Ed. 346, 9 S. Ct. 6; McCall v. Cali-
fornia, 136 U. S. 104, 34 L. Ed. 392, 10 S.
Ct. 881; Bowman v. Chicago, etc., R. Co.,
125 U. S. 465, 31 L. Ed. 700, 8 S. Ct. 689,
1062; Williams v. Fears, 179 U. S. 270,
45 L. Ed. 186. 21 S. Ct. 128.

17. Gibbons v. Ogden (U. S.), 9 Wheat.
1, 189, 6 L. Ed. 23; United States v. Hol-
liday (U. S.), 3 Wall. 407, 18 L. Ed. 182;
In re Rahrer, 140 U. S. 545, 35 L. Ed. 572,
11 S. Ct. 865; United States v. Knight
Co., 156 U. S. 1, 39 L. Ed. 325, 15 S. Ct.
249.



3421 INTERSTATE COMMERCE IN GENERAL. § 3812

Purchase and Sale of Property. — Commerce consists in selling the super-
fluity, in purchasing articles of necessity, as well productions as manufactures,
in buying from one nation and selling to another, or in transporting the merchan-
dise from the seller to the buyer to gain the freight." Nor does it make any dif-
ference whetlier this interchange of commodities is by land or by water. In ei-
ther case the bringing of the goods from the seller to the buyer is commerce. ^^

Interstate and Intrastate Commerce Distinguished. — Interstate com-
merce must be such as takes place between states, as differentiated from com-
merce wholly within a state. It must have reference to interstate trade or deal-
ing; and if the regulation is not such, and comprehends only commerce which is
internal, the state may legislate concerning it. In each case the recurring question
is, on which side of the line does the commerce under investigation fall?^''* The
phrase "among the several states" marks the distinction, for the purpose of gov-
ernmental regulation, between commerce which concerns two or more states and
commerce which is confined to a single state and does not affect other states, the
power to regulate the former being conferred upon congress and the regulation
of the latter remaining with the states severally.^^'

Commerce and Transportation Distinguished. — "Commerce" is the inter-
change or mutual change of goods, productions, or property of any kind between
nations or individuals, while "transportation" is the means by which commerce
is carried on.-^

Commerce and Trade Distinguished. — "Commerce" relates to dealings
with foreign nations. "Trade" means mutual traffic among the citizens of a
state or nation, or the buying, selling, or exchange of articles between members of
the same community. -

Transportation for Another. — Transportation for others, as an independent
business, is commerce, irrespective of the purpose to sell or retain the goods
which the owner may entertain with regard to them after they shall have been
delivered. 2^

Where State Line Crossed. — As interstate commerce means simply com-
merce between the states, it must apply to all transportation which crosses a state
line, regardless of the distance from which it comes or to which it is bound, be-
fore or after crossing such state line.-'*

Part of Continuous Voyage. — The transportation within the limits of a

18. Purchase and sale of property. — L. Ed. 608, 24 S. Ct. 307; United States v.

Passenger Cases (U. S.), 7 How. 283, 12 Knight Co., 156 U. S. 1, 39 L. Ed. 325, 15

L. Ed. 702; Case of the State Freight Tax S. Ct. 249.

(U. S.), 15 Wall. 232, 21 L. Ed. 146; 19. Interstate and intrastate commerce

Countv of Mobile v. Kimball, 102 U. S. distinguished. — Ware, etc., Co. v. Mobile

691, 26 L. Ed. 238; Kidd v. Pearson, 128 County. 209 U. S. 405, 52 L. Ed. 855, 28 S.

U. S. 1, 20, 32 L. Ed. 346, 9 S. Ct. 6; Mc- Ct. 526, 14 Am. & Eng. Ann. Cas. 1031.

Call V. Cahfornia, 136 U. S. 104, 34 L. 20. Mondou v. New York, etc., R. Co.,

Ed. 392, 10 S. Ct. 881; Welton v. Mis- 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169.

souri, 91 U. S. 275, 23 L. Ed. 347; Lehigh 38 L. R. A., N. S., 44.

Valley R. Co. v. Pennsylvania, 145 U. S. 21. Commerce and transportation dis-

192. 36 L. Ed. 672, 12 S. Ct. 806; Glou- tinguished.-Council Bluffs v. Kansas,

cester Ferry Co. v. Pennsylvania, 114 U. ^^^ r q^ 45 i^^,^ 333 94 Am. Rep.

S. 196, 29 L. Ed. 158, 5 S. Ct. 826; Wall- 773;



ing V. People, 116 U. S. 446, 29 L. Ed. 691,



22. Commerce and trade distinguished.



o b. Ct. 4o4 Bowman v. Chicago, etc., R. -d t -o- i /m y? \ 1 r ^\^ j n

Co., 125 U. S. 465, 31 L. Ed. 700, 8 S. Ct. -^5°?'"^"' ^'f "' ^^- ^■^' ^^ ^^^"^- ^'

689, 1062; Addyston Pipe, etc., Co. v. ^^ •'^"'- ^^^^- ■'"^- .

United States, 175 U. S. 211, 44 L. Ed. 23. Transportation for another.— Han-

136. 20 S. Ct. 96: Hopkins v. United ley z: Kansas, etc., R. Co., 187 U. S. 617,

Stales, 171 U. S. 578, 43 L. Ed. 290, 19 S. 47 L. Ed. 333, 23 S. Ct. 214.

Ct. 40; Williams v. Fears, 179 U. S. 270, 24. Where state line crossed. — Coving-

45 L. Ed. 186, 21 S. Ct. 128; Northern ton, etc., Bridge Co. v. Kentucky, 154 U.

Securities Co. v. United States, 193 U. S. 204, 38 L. Ed. 902, 14 S. Ct. 1087; Glou-

S. 197, 48 E. Ed. 679, 24 S. Ct. 436; Mon- cester Ferry Co. v. Pennsylvania, 114 U.

tague & Co. V. Lowry, 193 U. S. 38, 48 S. 196, 29 L. Ed. 158, 5 S. Ct. 826.



§ 3812



CARRIERS.



3422



state, which is a part of a continuous voyage to or from points outside of the
state, is interstate commerce. - "'

Contract of Shipment. — The character of a shipment, whether local or in-
terstate, depends on the contract of shipment, and is not changed by a transfer
of title during the transportation. A contract for an interstate shipment is com-
pleted upon delivery at the terminal point specified in such contract, and a further
shipment to another point in the same state, on the order of the consignee and
under a separate contract, is not a continuation of the interstate shipment, but is
local in its character and is controlled by the state law and not by the interstate
commerce act. A contract of shipment for local transportation does not become
interstate in its character from the fact that the shipper intends, after such local
contract of shipment has been completed, to forward the goods to some place out-
side the state. Where a contract of shipment was from a point in one state to a
point in another state, the fact that during that transportation a contract was-
made at an intermediate point in a third state for the sale of the property, did not
affect the character of the shipment between the two first mentioned points. It
was an interstate shipment after the contract of sale as well as before. The con-
trol over goods in process of transportation, which may be repeatedly changed
by sales, is one thing; the transportation is another thing, and follows the con-
tract of shipment, until that is changed by the agreement of owner and carrier.^^

Shipment Through Another State to Point in Same State. — Transpor-
tation, under a contract for a continuous carriage, from one point to another
within the same state, but by a route lying partly in another state, is interstate
commerce. ^^ A shipment of grain over a single railroad between two points, both



25. Part of continuous voyage. — Fargo
V. Michigan, 121 U. S. 230, 30 L. Ed. 888,
7 S. Ct.'^857; Wabash, etc., R. Co. v. Illi-
nois, 118 U. S. 557, 30 L. Ed. 244, 7 S.
Ct. 4.

26. Contract of shipment. — Gulf, etc.,
R. Co. V. Texas, 204 U. S. 403, 51 L. Ed.
540. 27 S. Ct. 360.

27. Shipment through another state to
point in same state. — In Lehigh Valley
R. Co. V. Pennsylvania. 145 U. S. 192, 36
L. Ed. 672, 12 S. Ct. 806, it was held that
a state might impose upon a railroad
corporation of its own creation a tax in
respect of receipts from transportation
by continuous carriage from one point
in the state to another, but by a route
lying partly in another state, and that the
imposition of such tax was not a regula-
tion of interstate commerce. This case
was distinguished in Hanley v. Kansas,
etc., R. Co., 187 U. S. 617, 47 L. Ed. 333,
23 S. Ct. 214, and held not to decide that
transportation under the conditions
above stated was not interstate com-
merce, but that the imposition of the tax
under the circumstances related was not
a regulation of such transportation,
whereas the fixing of rates for a like
transportation would constitute a' regula-
tion of such transportation and be void.

A contract for the sale of vessels ply-
ing between two points in the same state
over a boundary river was held not to
contemplate interstate commerce from
the fact that the vessels in passing be-
tween such points might sail over soil
belonging to another state. Cincinnati,
etc.. Packet Co. v. Bay, 200 U. S. 179, 50



L. Ed. 428, 26 S. Ct. 208, holding that it
would be an extravagant consequence to>
draw from Hanley ik Kansas, etc., R. Co.,
187 U. S. 617, 47 L. Ed. 333, 23 S. Ct. 214,
a case of a state attempting to fix rates
over a' railroad route passing outside its
limits, that such a contract contemplated
interstate commerce because the boats
referred to might sail over soil belonging
to Kentucky in passing between two
Ohio points.

Where a railroad runs for a' portion of
the distance between two stations in the
state of Kansas, and for a great portion
of the distance beyond the boundaries
of the state, and again returns into Kan-
sas, in conveying freight over such route
between such stations the railroad com-
pany is engaged in interstate commerce.
Patterson v. Missouri Pac. R. Co., 77
Kan. 236, 94 Pac. 138, 15 L. R. A., N. S.,
733.

A shipment of freight from one point
in the state to another point therein by
way of a town outside the state, is inter-
state shipment and is not governed by
Revisal 1905, § 2632, imposing a penalty
on a carrier for its failure to transport
freight within a reasonable time. Shelby
Ice, etc., Co. v. Southern R. Co., 147 N.
C. 61, 60 S. E. 723.

Where any part of the transportation
of freight from one point in the state to
another point therein is outside of the
state, the shipment is interstate traffic,
and is not within Revisal 1905, § 2632,
imposing a penaltj' on a carrier for its
failure to transoort freight within a rea-



3423 INTERSTATE COMMERCE; IN GENERAL. § 3812

within the same state, is not an interstate shipment, so as to bring it within the
terms of the interstate commerce act, and authorize a federal court to compel
such shipment, by mandamus, at the same rates charged other shippers of a like
commodity, because the Hne of road between the two terminal points passes
through other states ; nor is it rendered an interstate shipment by the fact that
the grain was received at the initial point from a carrier by which it was trans-
ported from a point in another state, and was there stored in an elevator for
further shipment, where it was not taken by the first carrier under a through bill
of lading.-*^ The railroad commission of Arkansas can not, without violating
the commerce clause of the federal constitution, fix and enforce rates for the
continuous transportation of goods between two points within the state of Ar-
kansas, where a large part of the route is outside of the state, through the Indian
Territory or Texas. -^ A state has no power to regulate the charges of a railroad
company for the carriage of goods between two points in the state, where the
course of transportation must be for a considerable part of the distance through
another state or territory. Such transportation, although continuous and made
on through bills of lading, constitutes commerce "among" the states, within the
meaning of the commerce clause of the federal constitution, and is subject to
regulation by congress alone. ^*^

Receiving and Landing Passengers and Freight. — The receiving and land-
ing of ijassengers and freight is incident to their transportation, and where the
transportation is interstate, the business of receiving and landing constitutes in-
terstate commerce. ^^

When Transportation Completed. — Moving goods from the station plat-
form to the freight warehouse is a i)art of the interstate commerce transporta-
tion. 2- Where cars of coal were transported from one state to another state and
were not delivered to the consignee, but remained on the tracks of the railway
company in the condition in which they had been originally brought into the state
from points outside of that state, it was held that the interstate transportation of
the property had not been completed, and it still retained its interstate character.^ ^

Fares and Charges. — Fares and freights for transportation in carrying on
interstate or foreign commerce are as much essential ingredients of that com-
merce as transportation itself.-^'*

Production and Manufacture. — Production and manufacture is not com-
merce, and the fact that an article is produced or manufactured for exportation
to another state or foreign country, does not of itself make it an article of inter-
state or foreign commerce within the meaning of the constitution, nor does the
intent of the manufacturer or owner determine the time "when the article or prod-
uct passes from the control of the state and belongs to commerce. Articles
produced or manufactured within a state and intended for exportation to a for-
eign country or to another state, do not become articles of interstate or foreign

sonable time. Davis v. Southern R. Co., Fed. 353. affirmed in Hanley v. Kansas,

147 X. C. (58, 60 S. E. 722. etc., R. Co.. 23 S. Ct. 214, 187 U. S. 617,

A continuous transportation of freight 47 L. Ed. 333.

between points within a state is "inter- 31, Receiving and landing passengers

state commerce, free from the mterfer- and freight.— Gloucester Ferry Co. v.

ence ot the state, where a part of the Pennsylvania, 114 U. S. 196, 29 L. Ed.

route IS outside of the state because of 153^ 5 j;;_ q.\.. 826.

the unsafe condition of a bridge form- 00 \\i\. ' ^„" „ _i.„x- 1 ^ j

ing a part of the line of road in the state ^f\ ^^^^f *'^".lPn°?T *q ^/,T??^^ p7

between such points. St. Louis, etc., R. ^^^'\V% ^^T\cV ^^ ^^ ^^~' ^~ ^^ ^^'^•

Co. V. State, 87 Ark. 562, 113 S. W. 203. ^"^^' ^^ ^- ^'^- ^^^•

28. United States v. Lehigh Valley R. 33. McNeill v. Southern R. Co., 202 U.
Co.. 115 Fed. 373. S. 543, 50 L. Ed. 1142, 26 S. Ct. 722, citing

29. Decree, Kansas, etc., R. Co. v. Rhodes v. Iowa, 170 U. S. 412, 42 L. Ed.
Board, 106 Fed. 353, affirmed in Hanley 108^. 18 S. Ct. 664.

V. Kansas, etc., R. Co., 23 S. Ct. 214, 187 34. Fares and freights.— Philadelphia,

U. S. 617. 47 L. Ed. 333. etc.. Steamship Co. :■. Pennsylvania, 122

30. Kansas, etc., R. Co. v. Board, 106 U. S. 320, 30 L. Ed. 1200, 7 S. Ct. 1118.



§ 3812



CARRIERS.



3424



commerce, until they commence their final movement for transportation from
the state of their origin to the state or country of their destination, and this final
movement begins only when they have been actually started in the course of trans-
portation to another state or country, or delivered to a common carrier for such
transportation. The carrying of products to and depositing them at a depot or
place of shipment where the journey to another state or foreign country is to
commence, is a part of that journey, and such products are not yet exports, nor
are they in the process of exportation. That is all preliminary work performed
for the purpose of putting the property in a state of preparation and readiness
for transportation.^-^ Every private enterprise which may be carried on chiefly
or in part by means of interstate shipments is not necessarily to be regarded as
so related to interstate commerce as to come within the regulating power of con-
gress.^'' The business of superintending and managing the operation of a factory
in a state, and controlling, handling and selling its output, does not constitute
interstate commerce from the fact that the products of the factory may be sold
and transported outside of the state. ^" Where a contract is for the sale of an
article and for its delivery in another state, the transaction is one of interstate
commerce, although the vendor may have also agreed to manufacture it in order
to fulfill his contract of sale."''^

Shipment under Local Bill of Lading. — Where a railroad operating
wholly within a state refuses to accept goods from another railroad from with-
out the state except under the local bill of lading, such railroad is not engaged in
interstate commerce.^'' A railroad lying wholly within a state, which transports
freight whether coming from within or without the state, solely on local bills of
lading, under a special contract limited to its own line, and without dividing
charges with any other carriers or assuming any other obligations to or for them,
does not come within the provisions of the interstate commerce act, and is not
bound to make any report of its business to the interstate commerce commis-
sion.'*" A railroad company whose line is wholly within a single state, and
which, although it carries freight destined to points beyond such state, never
issues bills of lading to points beyond its own line, receives no freight on through
bills of lading, and has no arrangement with other roads for a conventional divi-
sion of charges, or for a common control or management, is not within the pur-



35. Production and manufacture. — Kidd
V. Pearson, 128 U. S. 1, 20, 32 L. Ed.
346, 9 S. Ct. 6; United States v.
Knight Co., 156 U. S. 1, 39 L. Ed. 325, 15
S. Ct. 249. See, also. Korthern Securi-
ties Co. V. United States, 193 IT. S. 19T,
48 L. Ed. 679, 24 S. Ct. 436.

36. Addyston Pipe, etc., Co. v. United
States, 17.J U. S. 211, 44 L. Ed. 136, 20 S.
Ct. 96.

37. Diamond Glue Co. v. United States
Glue Co., 187 U. S. 611, 47 L. Ed. 328, 23
S. Ct. 206.

38. Addyston Pipe, etc., Co. v. United
States, 175 U. S. 211, 44 L. Ed. 136, 20 S.
Ct. 96.

39. Shipment under local bill of lading.
— Defendant, as receiver, operated a
narrow guage railroad wholly in Ohio,
which connected at one of its termini
with the B. & O. Railroad. Defendant re-
fused to ship interstate traffic over his
road, either received from or delivered to
the B. & O. road, under a through bill of
lading, or any other arrangement, ex-
cept that, on the delivery of such freight
shipped over defendant's road under a



local bill of lading at its terminus, it
should be received for transportation
without the state by the B. & O. road
under another bill of lading, the latter
road assuming defendant's local freight
charge, and defendant, on receiving such
shipments from the B. & O. for trans-
portation to points on his line, charged a
local freight tariff from the receiving
point to destination, also assuming pay-
ment of the B. & O.'s advance charges,
settlement of freight between the parties
being made weekly. Held, that defend-
ant's railroad was not engaged in inter-
state commerce within the meaning of,
and was, therefore, not liable for penal-
ties for noncompliance with, the safety
appliance act (Act Cong. March 2, 1893,
c. 196, 27 Stat. 532, as amended by Act
Cong. April 1, 1896, c. 87, 29 Stat. 85 [U.
S. Comp. St. 1901, p. 3175]), requiring
common carriers engaged in interstate
commerce by railroad to equip their cars
with automatic couplers, etc. United
States r. Geddes, 131 Fed. 452, 65 C. C.
A. 320.

40. United States v. Chicago, etc.. R.
Co., 81 Fed. 783.



3425 INTERSTATE COMMERCE IN GENERAL. § 3812

view of the interstate commerce act or of the supplemental act of August 7,

1888.^1

Shipment to Territory. — The interstate commerce act governing shipments
from one state or territory to any other state or territory from any place in the
United States to an adjacent foreign country, or through a foreign country, to
any other place in the United States, applies to a shipment to or from an un-
organized territory. •*-

Goods Billed from without State. — The fact that coal was billed from a
point in Tennessee to a point in Kentucky does not make the shipment an inter-
state one, it appearing that the coal was mined in Kentucky, and loaded on the
cars at a switch at the mines, and there taken charge of by the carrier.-*^'

Reshipment. — The intention or purpose of the owners of an interstate ship-
ment of a car load of grain to forward such car from the original terminal point
to another point in the same state does not make the shipment between such two
points, when performed by a connecting carrier to which the car was delivered by
the original terminal carrier in obedience to the instructions of the owner, an in-
terstate one, and, as such, exempt from the regulations of the state railroad com-
mission.^^

Carriage under through Bill. — Every carrier who transports goods through
any part of a continuous passage in the state to a point in another state is en-
gaged in interstate commerce, whether the goods are carried upon through bills
of lading or rebilled by the several carriers.'^ ^

Concurrent Power of United States. — A state statute regulating the opera-
tion of railroads, and providing that certain freight trains shall be equipped with
a crew of not less than an engineer, a fireman, a conductor, and three brakemen,
belongs to that field of legislation in which it is competent for both the state and
nation to enter, and is therefore not in violation of the constitution of the United
States, vesting in congress the power to regulate interstate commerce.^^

Intrastate Shipment by Interstate Carrier. — The interstate commerce
clause of the federal constitution does not apply to shipments wdiolly within the
state, though the carrier over whose lines the shipment is made is engaged in in-
terstate commerce.'*'

Necessity for Delivery. — Delivery to the purchaser of goods in another state
is an inherent and essential part of the intercourse defined by the word "com-
merce," without consideration as to the manner or continuity of the transporta-
tion or the maintenance at the time of delivery of the same inclosure or package
which characterized the commencement of the transportation.'**

Where Goods Reshipped. — Where goods received for transportation from a
point outside the state to an intrastate point were missent, and the carrier re-
billed the goods from a point in the state to the point of destination over the line
of another carrier, which received and transported the goods, the transportation

41. Interstate Commerce Comm. v. Bel- 412, 111 S. W. 456.

laire, etc., R. Co., 77 Fed. 942. The acts of congress legislating on

42. Shipment to territory. — Missouri, safety appliances and other means to
etc., R. Co. V. Bowles, 1 Indian T. 250, promote the safety of freight trains en-
40 S. W. 899. gaged in commerce did not exclude the

43. Goods billed from without state.— state from enacting Laws 1907 p. 295,
Louisville etc R Co v Vancleave 110 regulatmg the operation of freight trains,
Ky. 9r,8, 6,3 S. 'W. 22 23 Ky. L. Rep. 479. and providing that crews operating cer-

.. -D . • ... T J . r.n, n^ tain freight trains should consist of not

97^ ^« c Al?"'f.".*-~L"'^^T"* nu f"- less than an engineer, fireman, conductor,
274 r 8 S. W. 495 affirmed in Gulf, etc., ^^^^j ^j^^^^ brakemen. Chicago, etc., R.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 61 of 214)