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?;.^°; o- ^r.^""^^' "^^ ^- ^- ^^-'^ -'^ ^- ^"^^ Co. T. State. 86 Ark. 412. Ill S. W. 456.

540, 27 S. Ct. rjGO

47. Intrastate shipment by interstate

45. Carriage under through bill.— carrier.— McCutchen v. Atlantic, etc., R,
United States v. Colorado, etc., R. Co., Co.. si S. C. 71, 61 S. E. 1108.

157 Fed. ,321. 48. Necessity for delivery. — Loverin,.

46. Concurrent power of United States. etc., Co. v. Travis, 135 Wis. 322, 115 N,
—Chicago, etc., R. Co. v. State, 8G Ark. W. 829.

§§ 3812-3813 CARRIERS. 3426

by the latter carrier was not an interstate shipment. •^'-^

Where Goods Remain in Cars. — When goods are shipped from one state
into another and upon arrival at their destination remain in the cars placed upon
public sidings, they continue a part of the interstate commerce transaction until

Determined by Contract of Shipment. — \\'hether a shipment by the owner
from one point in a state for delivery to his own order at another point in such
state, under a shipping contract, completely performed by delivery at destination,
is intrastate or interstate commerce, must be determined by the shipping con-
tract, and not by the intent of the consignee as to the future disposition of the
goods. SI

Power of State and United States. — Commerce for the purpose of defin-
ing federal and state jurisdiction in legislation is divided into three fields: That
in which the power of the state is exclusive, that in which the state may act in
the absence of legislation by congress which is controlling and exclusive, and
that which the authority of congress is exclusive, and the states can not interfere
at all.s-

Means and Instruments of Commerce. — "Interstate commerce" within the
exclusive jurisdiction of congress, involves, as an essential and indispensable ele-
ment, the transportation of property or intelligence from one state to another,
embracing not only the property or intelligence so sent, but the physical agencies,
as the railroad, express and telegraph companies engaged in the commerce, and
their employees, as well as all persons who are directly connected as principals or
agents in carrying on the business, except that as applied to intelligence it does
not include all persons who write letters, but is confined to those persons, such as
the postal authorities and employees of telegraph companies, through whose
agency or instrumentality the intelligence desired to be sent is conveyed, and
those who send or exchange intelligence as an essential part of their business and
that directly results in the transportation of property-^^"*

§ 3813. Statutory Provisions. — Interstate Commerce Act, — See else-
where. S'*

Anti-Trust Law. — The anti-trust law, construed as applying only to contracts
whose direct and immediate efifect is a restraint upon interstate commerce, and
not to such as are made to promote legitimate business, though they may indi-
rectly or incidentally affect such commerce, is a legitimate exercise by congress of
its power to regulate interstate commerce.^^

49. Where goods reshipped. — Hock- was intrastate commerce, governed by
tield 7: Southern R. Co., 150 N. C. 419, the rates and fixed by the Texas Rail-
64 S. E. 181. road Commission. Texas, etc., R. Co. v.

50. Where goods remain in cars. — Sabine Tram Co. (Tex. Civ. App.), 121
Pennsylvania R. Co v. Coggins Co., 38 S. W. 256.

Pa. Super. Ct. 129. 52. Power of state and United States.

51. Determined by contract of ship- _People v. Erie R. Co., 198 N. Y. 369, 91
ment.— Texas, etc., R. Co. v. Sabine x. E. 849, 29 L. R. A., N. S., 240, 18 Am.
Tram Co. (Tex. Civ. App.), 121 S. W. & gng. Ann. Cas. 811, reversing order
256. 1]9 N. Y- S. 873, 135 App. Div. 767.

A manufacturer of lumber in Texas

53. Means and instruments of corn-

sold lumber there for delivery at a port merce.— United States Fidelity, etc., Co.

in Texas to a buyer for exportation ,, Commonwealth, ] 39 Ky. 27, 129 S. W.

through the port. The manufacturer de- ^i ,

livered the lumber to a carrier under a ', ^^ ^ . . ^ ^

contract calling for delivery to his own ,54. Statutory provisions.-See posf;

order at such port. The lumber remained Interstate Commerce Act, chapter 37.

at the port until loaded by the buyer on 55. Anti-trust law.— United States v.

chartered vessels for transportation. Joint Traffic Ass'n, 171 U. S. 505, 43 L.

There was no local market at the port, Ed. 259, 19 S. Ct. 25, reversing judgment

and the carrier had never done any local 76 Fed. 895, which was affirmed in 32 C.

business there. Held, that the carriage C. A. 491, 89 Fed. 1020.



§ 3814

§ 3814. Articles of Commerce. — Goods or merchandise only ■'^^ and not
persons are the subjects of interstate and foreign commerce. ^'^

Lawful Subjects of Ownership. — The commodities or articles which may
be regarded as the legitimate subjects of interstate and foreign commerce, and
within the protection of the commerce clause, are only such as may be the lawful
subjects of ownership and property, and hence, lawful subjects of exchange
barter, and traffic.'''^

Merchantable Articles. — An article, in order to be a proper subject of trade
and commerce, must be merchantable.''^'^

Oleomargarine is a legitimate subject of interstate and foreign commerce,
and has been so recognized by congress.*^''

Intoxicating liquors are recognized as legitimate articles or subjects of
foreign and interstate commerce.*'^ Ardent spirits, distilled licjuors, ale and beer
are universally admitted to be subjects of ownership and property and are there-
fore subjects of exchange, barter and traffic, like any other commodity in which
a right of property and traffic exists.'^ -

Tobacco, being a product which has from time immemorial been recognized
by custom or law as a fit subject for barter or sale, and particularly as its man-
ufacture has been made the subject of federal regulation and taxation, must be
recognized as a legitimate article of commerce, although it may to a certain extent
be within the police power of the states.*^^

56. Articles of commerce. — New York
V. Miln (U. S.), 11 Pet. 102, 9 L. Ed. 648;
Case of the State Freight Tax (U. S.),
15 Wall. 232, 21 L. Ed. 14G; Philadelphia,
etc., Steamship Co. tf. Pennsylvania, 122
U. S. 326, 30 L. Ed. 1200, 7 S. Ct. 1118.

57. Persons. — New York v. Miln (U.
S.), 11 Pet. 102, 9 L. Ed. 648.

58. Lawful subjects of ownership. —
Leisy V. Hardin, 135 U. S. 100, 34 L. Ed.
128, 10 S. Ct. 681; Crutcher v. Kentucky,
141 U. S. 47, 35 L. Ed. 649, 11 S. Ct. 851;
License Cases (U. S.), 5 How. 504, 12 L.
Ed. 256; Schollenberger v. Pennsylvania,
171 U. S. 1, 43 L. Ed. 49, 18 S. Ct. 767;
Austin V. Tennessee, 179 U. S. 343, 45 L.
Ed. 224, 21 S. Ct. 132.

59. Merchantable articles. — Bowman v.
Chicago, etc., R. Co., 125 U. S. 465, 31
L. Ed. TOO, 8 S. Ct. 689, 1062.

60. Oleomargarine. — Schollenberger v.
Pennsylvania, 171 U. S. 1, 43 L. Ed. 49,
18 S. Ct. 767.

Under Oleomargarine Act (Act Cong.
May 9, 1902, c. 784, 32 Stat. 193 [U. S.
Oomp. St. Supp. 1903, p. 370]), § 1, de-
claring that renovated butter transported
into any state, and remaining there for
use or sale, shall on arrival be subject to
state laws for the exercise of police
powers, as though produced within the
state, the arrival of renovated butter,
duly stamped and labeled as provided by
such act, within a state other than that
from which it was shipped, did not divest
the Ijuttcr of its interstate commerce
character, so as to immediately entitle
the consignee to remove such marks and
labels, without liability for violating
such act. United States v. Green, 137
Eed. 179.

61. Intoxicating liquors. — Bowman v.

4 Car— 21

Chicago, etc., R. Co.. 125 U. S. 465, 31 L.
Ed. 700, 8 S. Ct. 689, 1062; Adams Exp.
Co. V. Commonwealth, 214 U. S. 218, 53
L. Ed. 972, 29 S. Ct. 633; Thurlow v.
Massachusetts (U. S.\ 5 How. 504. 12 L
Ed. 256; Leisy v. Hardin, 135 U. S. 100,
34 L. Ed. 128, 10 S. Ct. 681; Louisville,
etc., R. Co. V. Cook Brewing Co., 223 U.
S. 70, 56 L. Ed. 355, 32 S. Ct. 189.

Whisky manufactured in Kentucky
and sent by the distiller into Ohio in
order to be reshipped in retail quantities
to consumers in local option territory in
Kentucky, whose order have been taken
by the distillers' agents, is not the sub-
ject of interstate commerce. Crigler v.
Commonwealth, 120 Ky. 512, 87 S. W.
276, 27 Ky. L. Rep. 918; S. C, 87 S. W.
280, 27 Ky. L. Rep. 925, 927; S. C, (Ky.),
87 S. W. 281.

62. Leisy v. Hardin, 135 U. S. 100, 34
L. Ed. 128, 10 S. Ct. 681; Crutcher v.
Kentucky, 141 U. S. 47, 35 L. Ed. 649, 11
S. Ct. 851; License Cases (U. S.), 5 How.
504, 12 L. Ed. 256.

63. Tobacco. — Austin v. Tennessee, 179
U. S. 343, 45 L. Ed. 224, 21 S. Ct. 132. -

"Whatever might be our individual
views as to its deleterious tendencies,
we can not hold that any article which
congress recognizes in so many ways is
not a legitimate article of commerce."
Austin V. Tennessee, 179 U. S. 343, 45 L.
Ed. 224, 21 S. Ct. 132.

Cigarettes. — In view of the Rev. St.
U. S., § ;'.243, i)roviding that the payment
of internal revenue for carrying on any
l)usincss shall not authorize it to be
carried on in states by whose laws it is
])roliil)ited, § .■5:>92, taxing cigarettes, and
prescribing the form of putting them up,

§ 3814 CARRIERS. 3428

Lottery tickets are subjects of traffic and their transportation in packages
from one state to another constitutes interstate commerce.''^

The public or quasi public securities of a foreign government, or of for-
eign banks or corporations, brought here in the course of our commerce with
foreign nations, or sent here from abroad for sale in the money markets of this
country, as such enter into and form a part of the foreign commerce of the
foun try /'•'"'

Nitroglycerin and Dynamite. — ^A freight train may be regarded as a pas-
senger train, within the meaning of the act of congress, prohibiting the transpor-
tation of nitroglycerin on vehicles engaged in interstate passenger traffic, when
passengers are conveyed thereby for compensation, in any kind of cars, by au-
thority of the railway company. The prohibition extends also to dynamite, which
is made by mixing nitroglycerin with some solid and inert absorbent substance,
and contains no other explosive ingredient.^^

Game and Fish. — There is no unqualified right of property in game or fish,
which, although reduced to possession, remain subject to the control of the state,
in the exercise of its police powers ; and a law making it a penal offense for a
person to have trout in his possession for sale is a valid police regulation, and
not an unlawful interference with interstate commerce, although such trout were
brought for sale from another state, where they were lawfully caught.^'^

Natural Gas. — A state law prescribing that it shall be unlawful to conduct
natural gas to any point outside of the state, is unconstitutional, as affecting in-
terstate commerce — natural gas, when reduced to possession, being an article
of commerce — and hence the court will not enjoin such transmission, no undue
appropriation nor the use of artificial means to produce an unnatural flow from
the wells being alleged/'^

Rafting Logs. — Rafting logs is not engaging in commerce between the states,
though incidentally connected with it.*^^

Articles within Police Power of State. — Whatever article or product has
from time immemorial been recognized by custom or law as a fit subject for
barter and sale,™ particularly if it has been recognized by congress, and its man-
ufacture and sale has been made the subject of federal regulation and taxation,
must be recognized as a legitimate article of commerce,"^ although it may to a
certain extent be within the police power of the states." -

Articles Which Spread Diseases. — Articles, which, on account of their ex-

and of stamping them, is not a recog- it applied equally to game killed without

nition of them as a legitimate article of the state and to game killed therein,

commerce. Austin v. State, 101 Tenn. Wells Fargo Exp. Co. z\ State, 79 Ark.

563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. 340, 96 S. W. 189.

St. Rep. 703, affirmed in 179 U. S. 343, A statute restricting the taking of fish

45 L. Ed. 224, 21 S. Ct. 132. is not violative of the commerce clause

64. Lottery tickets, — Lottery Case, 188 of the federal constitution, as to one
U. S. 321, 47 L. Ed. 492, 23 S. Ct. 321. whose purpose in taking them was to

65. Securities of foreign governments ship them into another state. E.k parte
or banks.— United States r. Arjona, 120 Fritz, 86 Miss. 210, 38 So. 722, 109 Am..
U. S. 479, 30 L. Ed. 728, 7 S. Ct. 628. St. Rep. 700.

66. Nitroglycerin and dynamite. — Rev. 68. Natural gas. — Alanufacturers' Gas,
St., § 5353; United States v. Saul, 58 etc., Co. v. Indiana Natural Gas, etc..
Fed. 'P<?,. Co., 155 Tnd. 545, 5S X. E. 706.

67. Game and fish. — In re Deininger, 69. Rafting logs. — Tittabawassee Boom
108 Fed. 623. Co. 7'. Cunning (iMich.), Howell N. P. 82.

Under the act of congress, known as 70. Articles within police power of

the "Lecey Act," providing that the game state. — Austin r. Tennessee, 179 U. S.

laws of a state may be made equally ap- 343. 45 L. Ed. 224, 21 S. Ct. 132.

plicable to irame imported into the state 71. Austin v. Tennessee, 179 U. S. 343,

as to game' killed within the state, Kir- 45 L. Ed. 224, 21 S. _ Ct. 132; Schollen-

by's Dig., § 3620, prohibiting any express berger v. Pennsylvania, 171 U. S. 1, 43

company from transporting or receiving L. Ed. 49, 18 S. Ct. 767.

any game for transportation beyond the' 72. Austin v. Tennessee, 179 U. S. 343,

statei^ was not unconstitutional because 45 L. Ed. 224, 21 S. Ct. 132.


isting condition, would cause and spread disease, pestilence, and death, such as
substances infected with the germs of contagious diseases, or meat or other pro-
visions that are diseased or decayed, or otherwise, from their condition and qual-
ity, unfit for human use or consumption, are not merchantable, and are therefore
not legitimate subjects of trade and commerce within the protection of the com-
merce clause of the constitution, but are within the jurisdiction of the police power
of the state-"-^ The self -protecting power of each state may be rightfully exerted
against the introduction of such articles within its limits, and such exercises of
power can not be considered regulations of commerce prohibited by the constitu-
tion. They may be rightly outlawed as intrinsically and directly the immediate
sources and causes of destruction to human health and life."'*

Determining Subjects of Interstate Commerce. — The power to regulate
interstate and foreign commerce includes the power to determine what commod-
ities or articles of property shall be the lawful subjects of that commerce and
therefore the determination of this question is for congress and not for the

Failure of Congress to Determine. — Congress, by omitting any express
declaration on the subject, has not intended to submit to the several states the de-
cision of the question in each locality of what shall and what shall not be articles
of traffic in the interstate commerce of the country. '"^

§§ 3815-3828. Means and Instruments of Commerce— § 3815. In

General. — The power to regulate interstate commerce extends to all the instru-
mentalities of interstate commerce.'^"

The means of transportation of persons and freight between the states does
not atTect the character of the business as one of interstate commerce.'^^

Where Several Agencies Employed in Transportation. — The fact that
several different and independent agencies are employed in transporting the com-
modity, some acting entirely in one state, and some acting through two or more
states, does in no respect affect the character of the transaction. To the extent
in which each agency acts in that transportation, it is subject to the regulation of

73. Diseased or unsound articles. — Bow- 78. Gloucester Ferry Co. v. Pennsyl-
man v. Chica.?o, etc., R. Co., 125 U. S. vania, 114 U. S. 196, 29 L. Ed. 158, 5 S.
465, 31 L. Ed. 700, 8 S. Ct. 689, 1062; Ct. 826.

Leisy :•. Hardin, 135 U. S. 100, 34 L. Ed. 79. Where several agencies employed

128, 10 S. Ct. 681; Crutcher v. Kentucky, in transportation. — "On this point The

141 U. S. 47, 35 L. Ed. 649. 11 S. Ct. 851; Daniel Ball (U. S.), 10 Wall. 557, 19 L.

License Cases (U. S.), 5 How. 504, 12 L. Ed. 999, is an authority. In that case

Ed. 256; In re Rahrer. 140 U. S. 545, 35 the steamer Daniel Ball was engapred in

L. Ed. 572, 11 S. Ct. 865. transporting goods on Grand River,

74. Bowman v. Chicago, etc., R. Co., wholly within the state of Michigan,
125 U. S. 465, 31 L. Ed. 700. 8 S. Ct. 689, destined for other states, and goods
1002; Leisy v. Hardin, 135 U. S. 100, 34 brought from other states destined for
L. Ed 12S, 10 S. Ct. 6S1. places in the state of Michigan, but did

76. Power to determine what shall be not run in connection with, or in contin-

subjects of commerce. — Bowman v. Chi- nation of, any line of vessels or railway

cage, etc., R. Co.. 125 U. S. 465, 31 L. leading to other states; and the conten-

Ed. 700, 8 S. Ct. 689, 1062; Leisy v. Har- tion was that she was not engaged in

din, 135 U. S. 100, 34 L. Ed. 128, 10 S. interstate commerce. But this court

Ct. 681; In re Rahrer, 140 U. S. 545. 35 held otherwise and said: 'So far as she

L. Ed. 572, 11 S. Ct 865; License Cases was employed in transporting goods des-

(U. S.), 5 How. 504, 12 L. Ed. 256. tined for other states, or goods brought

76. Failure of congress to determine. from without the limits of Michigan and
— Bowman v. Chicago, etc., R. Co., 125 destined to places within that state, she
U. S. 465, 31 L. Ed. 700, 8 S. Ct. 689, was engaged in commerce between the
1002; Leisy v. Hardin, 135 U. S. 100, 34 states, and however limited that com-
L. Ed. 12.S, 10 S. Ct. 681. merce may have been, she vvas, so far as

77. Means and instruments of com- it went, subject to the legislation of
merce. — Southern R. Co. v. Railroad congress. She was employed as an in-
Comm., 179 Ind. 23, 100 N. E. 337. strument ' of that commerce, for when-

§ 3816 CARRIERS. 3430

§ 3816. Railroads. ^Under Arrang-ement for Continuous Carriage of
Goods. — A stale railroad corporation, when it voluntarily engages in interstate
commerce, by making an arrangement for a continuous carriage of goods, be-
comes subject, so far as such traffic is concerned, to the provisions of the interstate
commerce law.^"

Terminal or Belt Railroads. — A terminal or belt railroad company, whose
line is in and around a city, and entirely within one state, which receives inter-
state freight for shipment from or delivery to points on its line on through bills
of lading issued by other companies on whose lines the shipment begins or ends,
submits its road to a common control for continuous shipment, within section 1
of the interstate commerce act, and is subject to the provisions of such act.''^

Hauling- Car of Another Company. — A railroad company, which hauls over
its line within a state a car of another company employed in moving interstate
traffic consigned to a point in another state, which car is not equipped with the ap-
pliances required by the Safety Appliance Act, is liable for the penalty imposed
by said act.^-

Empty Cars. — The act of ^March 2, 1893, requiring cars used in moving inter-
state commerce to be equipped with couplers coupling automatically, applies to a
car designed for interstate traffic, though at the time being hauled empty. ^^
Within the meaning of the act of congress approved Alarch 2, 1893, providing
that it shall be unlawful for any railroad company to use any car in interstate
commerce that is not provided with secure grab irons or hand holds, where a
train made up in one state, and loaded with stock and merchandise, is destined
for a point in another state, a car in such train, whether loaded or empty, is used
in interstate commerce. ^^

Cars Not in Actual Use. — The act of March 2, 1893, requiring common car-
riers engaged in interstate commerce to equip their cars with automatic couplers,
applies to all cars regularly used on any railroad engaged in interstate commerce
not only while actually in use in such commerce but at all times when in use on
such road.^^

Car Necessarily Moved in Moving Interstate Commerce. — In an action

ever a commodity has begmi to move as meaning of the act, and that defendant

a!i article of trade from one state to an- was liable for the penalty imposed

other, commerce in that commodity be- thereby for its violation. United States

tween the states has commenced.' " Nor- :•. Pittsburgh, etc., R. Co., 143 Fed. 360.
folk, etc., R. Co. r. Pennsylvania, 136 U. 83. Empty cars.— Voelker v. Chicago,

S. 114. 34 L. Ed. 394. 10 S. Ct. 958. etc., R. Co., 116 Fed. 867, reversed in

80. Under arrangement for continuous ^29 Fed. 522, 65 C. C. A. 226, 70 L. R. A.
carriage of goods. — Interstate Commerce 264

?°T3"3" 4^- ^^%'fkoT'^7 \ Cf\^f'j^e' ^- J^^^gment 99 111. App. 360, affirmed

S. 633, 42 L. Ed. 306 17 b. Ct 986, De- -^^ Malott V. Hood, 201 111. 202, 66 N. E.

troit, etc., R. Co. z'. Interstate Commerce 047

Comm., 21 C. C. A. 103, 74 Fed. 803. " n^ r- . • ^ , tt •. ^

81. Terminal of belt railroads.— In- ^85. Cars not m actual use.— United
terstate Stock Yards Co. Z'. Indianapolis, S^tates v. Great ^o^thern R. Co., 145 Ped.
etc., R. Co., 99 Fed. 472. ^^'^■

82. Hauling car of another company. Act Cong. March. 2, 1893. c. 196, 27
—United States v. Chicago, etc., R. Co., Stat._ 531 [U. S. Comp. St. 1901, p. 3174],
143 Fed. 353. requiring railroads to equip their cars

A car employed in moving interstate used in interstate commerce with auto-
traffic and not equipped with an appli- matic couplers, and making railroads li-
ance required by Safety Appliance Act able for a personal injury action by a
March 2, 1893. c. 186, 27 Stat. 531 [U. S. failure to comply with the statute, ap-
Comp. St. 1901, p. 3174], was received plies not only in cases where the cars
from another company by defendant rail- are, at the very moment of the injury,
road company and hauled from one of being actually used in moving interstate
its yards to another for the purpose of traffic, but to cases where the injury oc-
■being put in a train and forwarded to its curs in the making up of the train for
destination in another state. Held, that the purpose of moving interstate traffic.
in such movement the car was being Mobile, etc., R. Co. v. Bromberg, 37 So.
used in interstate commerce within the 395, 141 Ala. 258.



§.§ 3816-3819

for injuries received while coupling a tender to a car, it was claimed that the ten-
der was not properly equipped under such act. It was held that, though the car
to which the tender was being coupled was not used in interstate traffic, the case
was within the statute, if the removal of such car was a necessary step in moving
an interstate car.''*''

Railroad Operating Its Own Construction Train.— A carrier operating its
own construction train, which hauls its own rails and products from a point in
one state to a point in another state, is engaged in interstate commerce.^'

Lessor Railroad. — A railroad corporation whose tracks lie wholly within a
v-ertain state does not, by leasing its tracks to a railroad corporation engaged in
interstate commerce, itself engaged in interstate commerce. ^'^

Train Engaged in Both Interstate and Intrastate Commerce.— Where
a railroad engineer was injured while hauling a train containing cars engaged in
both interstate and intrastate commerce, he was himself engaged in interstate
commerce, and entitled to sue under the employer's liability act.'^'^

§ 3817. Express Companies.— The interstate commerce act does not apply
to independent express companies not operating railway lines. '^^

§ 3818. Dining Cars.— A dining car being engaged in interstate commerce
while actually making its interstate journey, it is equally so when waiting for a
train to be made up for the next trip, it being regularly used in the movement of
interstate traffic. ^^

§ 3819. Terminal Companies and Stockyards.— A terminal company
which received cars of coal coming from another state, and delivered them within

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 62 of 214)