Copyright
Thomas Johnson Michie.

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

. (page 63 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 63 of 214)
Font size
QR-code for this ebook


its yards to the engines of a railroad company, was engaged in moving interstate
traffic, within Safety Appliance Act, :\Iarch 2, 1893, c. 496, 27 Stat. 531 [U. S.



86. Car necessarily moved in moving
interstate commerce. — Winkler 7'. Phil-
adelphia, etc., R. Co. (Del.), 4 Pen. 80,
53 Atl. 90.

87. Railroad operating its own con-
struction train.— United States v. Chi-
cago, etc., R. Co.. 149 Fed. 486.

88. Lessor railroad. — Zachary v. Xorth
Carolina R. Co., 156 X. C. 496, 72 S. E.
858.

A fireman, whose run was wholly
within the state, having oiled and pre-
pared his engine, which was not then
attached to any train, was killed while
crossing the tracks to his boarding house
for a personal purpose. His engine was
to have hauled some freight, which was
interstate commerce, but the road upon
which it operated was not an interstate
carrier, though the lessee of the road
was engaged in such commerce. Held,
that the federal employer's liability act
(Act April 22, 1908, c. 149, 35 Stat. 65
[U. S. Comp. St. Supp. 1909, p. 1171]),
which applies only to a carrier by rail-
road while engaged in interstate com-
merce, and only to an employee suffer-
ing injury while employed in such com-
merce, did not apply, for the fireman
was not then engaged in interstate com-
merce. Zachary v. North Carolina R.
Co.. 156 X. C. 496, 72 S. IC. 858.

89. Train engaged in both interstate
and intrastate commerce. — Morton v.
^"caboard, etc., R. Co., 157 N. C. 146, 72



S. E. 958.

90. Express companies. — Decree 88
Fed. 659, affirmed in Southern Indiana
Exp. Co. V. United States Exp. Co.. 35
C. C. A. 172, 92 Fed. 1022.

91. Dining cars. — "Counsel urges that
the character of the dining car at the
time and place of the injury was local
only and could not be changed until the
car was actually engaged in interstate
movement or being put into a train for
such use, and Coe v. Errol. 116 U. S. 517,
29 L. Ed. 715, 6 S. Ct._475, is cited as
supporting that contention. In Coe v.
Errol it was held that certain logs cut in
Xew Hampshire, and hauled to a river in
order that they might be transported to
Maine, were subject to taxation in the
former state before transportation had
begun. The distinction between mer-
chandise which may become an article
of interstate commerce, or may not, and
an instrument regularly used in moving-
interstate commerce, which has stopped
temporarily in making its trip between
two points in different states, renders
this and like cases inapplicable. Con-
fessedly a dining car is under the control
of congress wb.ile in the act of making
its interstate journey, and it was equally
so when waiting for a train to be made
u]) for the next trip, it being regularly
used in the movement of interstate traf-
fic." Johnson v. Southern Pac. Co., 190
U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158.



§§ 3819-3820 CARRIERS. 3432

Comp. St. 1901, p. 3174] .»2 The fact that the state line runs through stockyards,
resulting in some of the pens in which stock may be conlined being partly in one
state and partly in another, and that sales may be made of a lot of stock which
may be at the time partly in one state and partly in the other, does not make the .
business of buying and selling live stock on commission at such stock yards in-
terstate commerce, when the business would not otherwise partake of that char-
acter.^^ The fact that a particular stockyard extends over the boundary line
between two states does not make the business there carried on interstate com-
merce.'''^ A live-stock commission merchant, whose place of business is at cer-
tain stockyards in a city, and who there buys and sells stock for others, is not en-
gaged in interstate commerce, within the meaning of the anti-trust statute, al-
though the stock may have been shipped from another state or territory, consigned
to him for sale, and may be sold for shipment to another state or a foreign coun-
try. Nor is the n^.ture of his business affected in that regard by the fact that
he pays drafts drawn against consignments of stock to him for sale, nor because
he may have previously loaned money to aid in the preparation of the stock for
market, and taken a mortgage thereon, the amount of which he deducts from the
proceeds of the sale.'-*^

Where Compensation Paid by Railroad. — A stockyards company maintain-
ing tracks connecting with the tracks of railroad companies, and which by its own
locomotives and servants transports cars containing interstate shipments to and
from the tracks of the railroad companies, is a common carrier engaged in inter-
state commerce, though it collects compensation only from the railroad companies
and is paid under a contract between it and them.-'*^

§ 3820. Warehouses and Elevators. — While gram warehouses and ele-
vators situated and whose business is carried on exclusively within a state, may
be used as instruments by those engaged in interstate commerce, yet they are no
more necessarily a part of commerce itself than the dray or the cart by which,
but for them, grain would be transferred from one railroad station to another.
Incidentally they may become connected with interstate commerce, but not neces-
sarily so.**"

92. Terminal companies and stock- Co., 82 Fed. 850; reversed in Getting v.
yards.— United States v. Northern Pac. Godard, 22 S. Gt. 30, 183 U. S. 79, 46 L.
Terminal Co., 144 Fed. 861. Ed. 92.

93. "The erection of the building and 95. Hopkins v. United States, 171 U. S.
the putting up of the stockpens upon 578, 19 S. Gt. 40. 43 L. Hd. 290, reversing
the ground through which the state line order 82 Fed. 529.

ran were matters of no moment so far 96. Where compensation paid by rail-
as any question of interstate commerce road. — Judgment, United States v. Union
is concerned. The cliaracter of the busi- Stockyards Co., 161 Fed. 919. affirmed
ness done is not in the least altered by in 94 G. C. A. 626, 169 Fed. 404.
these immaterial and incidental facts." 97. Warehouses and elevators, — Munn
Hopkins v. United States, 171 U. S. 578, v. Illinois, 94 U. S. 113, 24 L. Ed. 77:
43 L. Ed. 290, 19 S. Gt. 40. Budd v. New York, 143 U. S. 517, 36
Live stock shipped from various states L. Ed. 247, 12 S. Gt. 468; Brass v. Stoeser,
to the yards of a stockyards association 153 U. S. 391, 38 L. Ed. 757, 14 S. Gt.
in another state, by the solicitation and 857; Gargill Go. v. Minnesota, 180 U. S.
procurement of the members thereof, to 452. 45 L. Ed. 619, 21 S. Gt. 423.
be tliere sold, or to be reshipped to other The long-mooted question as to whether
states, if the market should be unsatis- elevation was such a part of transporta-
factory, does not cease to be a subject tion as to bring it within the jurisdiction
of interstate commerce as soon as it of the interstate commerce commission
reaches such yards and is there unloaded, was answered by the Act of June 29,
nor until it has been further acted upon 1906 (34 Stat, at L. 584, 590, chap. 3591,
so as to become mingled with the mass U. S. Gomp. Stat. Supp. 1909, p. 1150),
of property in the state. United States in which congress declared that the term
IK Hopkins, 82 Fed. 529, reversed in 19 " 'transportation' shall include * * *
S. Gt. 40, 171 U. S. 578, 43 L. Ed. 290; ^11 * * * facilities of shipment, * * *
Cotting V. Kansas Gity Stockyards Go., irrespective of ownership. * * * and
82 Fed. 839. all services in connection with the * * *

94. Gotting V. Kansas Gity Stockyards elevation and transfer in transit * * *



3433 INTERSTATE COMMERCE IN GENERAL. §§ 3820-3825

Where Delivery to Consignee Contemplated.— Where an interstate ship-
ment of goods is made, wherein it is the contemplation that deHvery will be made
to the consignee, instead of being delivered at a warehouse, the goods continue a
subject of interstate commerce until they are so delivered. '^"^

Property Held in Warehouse after Refused by Consignee.— Property held
by a carrier in its warehouse after a refusal of the consignee to accept, without any
notice to the consignor, must be considered as still in interstate commerce for the
purpose of determining liability for its destruction. ^^

§ 3821. Pipe Lfnes. — Natural gas, when reduced to possession, is a com-
modity which belongs to the owner of the land, and may be the subject of both
intrastate and interstate commerce; and a state law which prohibits the con-
struction of pipe lines for natural gas, or the transportation of the gas by such
lines except by domestic corporations and only between points within the state,
with a strict prohibition against transporting, selling or in anywise furnishing
gas for use beyond the limits of the state, unconstitutionally interferes with in-
terstate commerce and the right to engage therein, and can not be justified as
an exercise of the police power of the state to consen^e its natural resources.^

§ 3822. Bridges. — The transportation of persons and property over a bridge
connecting two states is interstate commerce, and the bridge is an instrument of
such commerce. 2

§ 3823. Ferries. — The transportation of passengers and freight by a ferry
over a river between two states is interstate commerce.^

§ 3824. Ports, Harbors and Wharves. — In the absence of action by con-
gress on the subject, a state may pass harbor regulations, describing wharfage
charges, regulating the position of vessels and the usual police duties in harbors.^

§ 3825. Connecting Carriers. — When a carrier unites with one or more
others in making a rate for interstate or foreign shipments, and a through bill
is issued therefor, it is subject to the interstate commerce act. An express agree-
ment for the through rate is not required, but the successive receipt and forward-
ing in the ordinary course of business by two or more carriers under through
bills, or any arrangement for a continuous carriage, constitutes assent to such
common arrangement, and makes the carrier a party to the contract, within the
meaning of the act.^ The business of a through line of railroad, consisting in

and handling of property transported." 99. Property held in warehouse after

Carriers were required "to provide and refused by consignee. — Nashville, etc.,

furnish such transportation upon reason- R. Co. v. Dreyfuss-Weil Co., 150 Ky.

able request therefor." The act recog- 333, 150 S. W. 321.

nized that the shipper himself might own 1. Pipe lines. — West v. Kansas Natural

the elevator or other facility included Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31

within the definition of transportation. S. Ct. 564, 35 L. R. A., N. S., 1193.

Per § 4 (34 Stat, at L. 590, chap. 3591, 2. Bridges. — Covington, etc., Bridge

U. S. Comp. Stat. Supp. 1909, p. 1159) Co. v. Kentucky, 154 U. S. 204, 38 L. Ed.

provides that "if the owner * * * 962, 14 S. Ct. 1087.

renders any service connected with such 3. Ferries. — Gloucester Ferry Co. v.

transportation, or furnishes any instru- Pennsylvania, 114 U. S. 196, 29 L. Ed.

mentality used therein, the charge and al- 158, 5 S. Ct. 826. See, also, Covington,

lowance therefor shall be no more than is etc., Bridge Co. 7-. Kentucky, 154 U. S.

just and reasonable," the comniission be- 204, 38 L. Ed. 962, 14 S. Ct. 1087.

ing authorized to determine what is rea- 4. Ports, harbors, and wharves.— Park-

sonable. Union Pac. R. Co. v. Updike ersburg, etc., Transp. Co. v. Parkcrsburg,

Grain Co.. 222 U. S. 215, 56 L. Ed. 171, 107 U. S. 691, 2 S. Ct. 732; Harbor Mas-

32 S. Ct. 39. ter v. Sutherland, 74 .Ma. 511.

98. Where delivery to consignee con- 5. Connecting carriers. — United States

templated. — State v. Railroad Comm., r. Wood, 145 VcA. 405.

171 Ind. 138, 85 N. E. 337, 19 L. R. A., A car loaded with coal, to be dcliv-

N. S., 93, rehearing deined in 85 N. E. ered to a consignee in another state, is

966. "used in moving interstate traffic," within



§§ 3825-3826 carriers. 3434

carrying passengers and freight into a state from other states, and out of that
state into other states, being interstate commerce, it follows that any one of the
roads forming a part of, or constituting a link in, that through line, is engaged
in interstate commerce.'^

Line Wholly within State. — A connecting railroad carrier over whose line
an interstate shipment passes is engaged in interstate commerce with respect to
such shipment and subject to the law regulating the same, although its line may
lie wholly within one state."

Carriage under Common Arrangement or Control.— All carriers partici-
pating in the transportation of merchandise from one staff to another are en-
gaged in interstate commerce, without reference to the bill of lading, and though
no traffic arrangement existed between them, no matter how the transportation
was carried out or the freight paid.''' A common carrier operating a railroad en-
tirely within a single state, and transporting thereon articles of commerce shipped
in continuous passage from places within the state to stations on its road or from
stations on its road to points without the state, is subject to the provisions of the
act of March 2, 1893, though it carries the property free from a common control
or arrangement with any carrier for continuous carriage or shipment of the ar-
ticles.^ That a defendant made contracts for the through carriage of interstate
shipments, and settlements therefor, solely with one railroad company, although
such shipments passed over the lines of other companies also, sufficiently proves
a common arrangement between the carriers for a continuous carriage. ^*^

Shipment of Joint Rates. — Where a railroad company published and filed a
schedule of rates between points on its line within a state, and also procured and
filed as its own the schedules of rates of a terminal company for the carriage of
property from one of such points into another state and made contracts for
through carriage and collected the freight therefor, it was an interstate carrier as
to such shipments, and the lawful rate was the sum of the rates shown by the two
schedules.^ ^

Continuous Shipment. — Freight received in a state for transportation over
the receiving and connecting line on a through bill of lading and by a continuous
trip to a point beyond the state is interstate commerce.^-

Where Final Carrier within State. — The final link in an interstate shipment
may be through a carrier wholly within the terminal state, and such carrier
may be another railroad or a horse and wagon. ^-'^

§ 3826. Soliciting Agents. — An agency of a line of railroad established for
the purpose of inducing passengers going from one state into and through other
states, to travel by that line, but not engaged in selling tickets for the route,
or receiving or paying out money on account of it, is an agency engaged in inter-

the meaning of Act March 2, 1893, c. 196, and hence defendant expre.'^s company

§ 2, 27 Stat. 531 [U. S. Comp. St. 1901, p. could not refuse to receive the liquor in

.3174], by the railroad company which Vicksburg and transport the same to

takes it from the place of loading, al- destination, because of Code 1906, § 1771,

though such company only undertakes making persons assisting in the state of

to deliver it to a connecting carrier liquors in a prohibited district guilty of

within the same state. United States v. a misdemeanor. American Exp. Co. v.

Southern R. Co., 135 Fed. 122. Miller (Miss.), 61 So. 306.

6. Norfolk, etc., R. Co. v. Pennsylvania, 9. United States v. Colorado, etc., R.
136 U. S. 114. 34 L. Ed. 394, 10 S. Ct. Co., 157 Fed. 342.

958, citing The Daniel Ball (U. S.), 10 10. United States v. Standard Oil Co.,

Wall. 557, 19 L. Ed. 999. 155 Fed. 305.

7. Line wholly within state, — United 11. Shipment of joint rates. — United
States z'. Standard Oil Co.. 155 Fed. 305. States v. Standard Oil Co., 155 Fed. 305.

8. Carriage under common arrange- 12, Continuous shipment. — Missouri,
ment or control. — American Exp. Co. v. etc., R. Co. v. New Era Milling Co., 80
Miller (Miss.), 61 So. 306. Kan. 141, 101 Pac. 1011.

Shipments of liquor from Louisiana 13. Where final carrier within state. —

to Vicksburg, and thence to destination Commonwealth z\ People's Exp. Co., 201
in this state, held interstate commerce; Mass. 564, 88 N. E. 420.



3435 INTERSTATE COMMERCE IN GENERAL. §§ 3826-3828

State commerce. Such business is directly connected with interstate commerce,
and consists wholly in carrying it on.i-* Solicitators employed by a live stock ex-
change to solicit the various owners of stock to consign the cattle to the exchange
for sale, are not engaged in interstate commerce. The effect of an agreement as
to the number of solicitors to be employed by a live stock exchange can only be
remote and indirect upon interstate commerce. i°

§ 3827. Steamboats. — The carrying of a pleasure party on a steamboat
is not interstate commerce, although the boat may touch the shores of different
states.^"

§ 3828. Determining Whether Commerce Is Intrastate or Interstate.

— The character of the traffic, as intrastate or interstate, in which a car is being
used at the time of an injury, is to be determined from the proof as to the points
between which the car was being moved at the time, irrespective of wdiether the
road was an interstate road or whether the car was sometimes used in interstate
traffic. ^^ In determining whether a service in the transportation of freight from
a point in one state to an unloading point in another is interstate commerce, the
circumstances of a through tariff rate, a through bill of lading, and continuity of
ownership and consignee are evidentiary, but not controlling.^^ Between the
point of delivery of freight for transportation and the point for discharge, there
may be changes of ownership and of consignees, successive bills of lading, or no
bill for some section of the transit, and the freight yet be of interstate commerce
throughout.!*' In case a car of freight is started for a point without to a point
within the state and the transit is characterized by a bill of lading which does not
expressly call for delivery at an unloading point, but the general custom is to place
such cars at a terminus within the scope of the expressed delivery point — to be
removed therefrom to an unloading point, determined after arrival thereat, or
at the start or in the meantime — either by the initial or some connecting carrier,
there being no expectation from the start, of the freight being discharged at the
point of temporary break in the transit, nor facilities therefor, the presumption
is that the shipper purposed, in the beginning, that the freight should go beyond
such terminus to a place for unloading, and the whole is a unit as regards whether
the service is interstate or intrastate, regardless of the fact that such terminus
answers the literal call in the bill for the end of the shipment and in fact as to
the particular tariff" rate specified therein.-" In the case suggested in the forego-

14. Soliciting agents.— McCall v. Cali- 16. Steamboats.— State v. Seagraves, 111
fornia, 136 U. S. 104, 31 L. Ed. 392, 10 Mo. App. 353, 8.5 S. W. 925.

S. Ct. 881, distinguished in Williams v. 17. Determining whether commerce

Fears, 179 U. S. 270, 45 L. Ed. 186, 21 S. is intrastate or interstate. — Luken v. Lake

Ct. 128. Shore, etc., R. Co., 248 111. 377, 94 N. E.

15. "The position of the solicitors is 175, 21 Am. & Eng. Ann. Cas. 82.
entirely different from that of drummers Shipments f. o. b. Louisville, originat-
who are traveling through the several ing at another point in Kentucky, of ties,
states for the purpose of getting orders held governed by intrastate, and not in-
for the purchase of property. It was terstate rates, though the shipments were
said in Robbins v. Shelby County Taxing made in care of nonresident officials of
Dist., 120 U. S. 489, 30 L. Ed. 694, 7 S. the purchasing companies, and the tics
Ct. 592, that the negotiation of sales of were forwarded to other states without
goods which are in another state for the unloading. Louisville, etc., R. Co. v. Ohio
purpose of introducing them into the Valley Tie Co., 148 Ky. 718, 147 S. W.
state in which the negotiation is made 421.

is interstate commerce. But the solicit- 18. Duluth-Superior Mill. Co. v. North-

ors for these defendants have no prop- ern Pac. R. Co., 153 Wis. 528, 140 N. W.

erty or goods for sale, and their only 1105.

duty is to ask or induce those who own 19. Duluth-Superior Mill. Co. v. North-

the property to agree that when they ern Pac. R. Co., 152 Wis. 528, 140 N. W.

send it to market for sale they will con- 1105.

sign it to the solicitor's principal." Hop- 20. Duluth-Superior Mill. Co. v. North-
kins V. United States, 171 U. S. 578, 43 ern Pac. R. Co., 152 Wis. 528, 140 N. W.
L. Ed. 290, 19 S. Ct. 40. 1105.



§ 3828 CARRIERS. 3436

ing, the temporary place of stoppage, though satisfymg the literal call of the
bill of lading, is to be regarded only as marking the end of part of the entire
transit covered by the tarifif rate mentioned in such bill, where continuance to
the unloading point is required to be over another line, the additional movement
does not militate against the subject of the shipment being interstate to such un-
loading point. ^^ When property is delivered to a carrier in one state for the
purpose of having the same transported to an unloading point in another state,
it is matter of interstate commerce until it is unloaded at the terminus of the
service sought or tendered for unloading, regardless of the number of elements
making up the entirety of the transit and that the last is a mere switching move-
ment not covered by a bill of lading.^^' In general, it is the character of the
service required, intended and rendered, not the manner in which it is accom-
plished, which determines interstate character. Such service impresses the sub-
ject of the transit at the start, and delivery at the unloading point where the
person entitled to receive the freight has reasonable opportunity to accept dis-
charge of it, removes such impress. ^^

21. Duluth-Superior Mill. Co. v. North- ern Pac. R. Co., 152 Wis. 528, 140 N. W.
ern Pac. R. Co., 152 Wis. 528, 140 N. W. 1105.

1105. 23. Duluth-Superior Mill. Co. v. North-

22. Duluth-Superior Mill. Co. v. North- ern Pac. R. Co., 152 Wis. 528, 140 N. W.

1105.



CHAPTER XXXV.
Regulation and Control.

I. Power of Congress, §§ 3829-3859.

A. In General, § 3829.

B. As to Charges, § 3830.

C. As to Transportation of Live Stock, § 3831.

D. As to Transportation of Goods Manufactured by Carrier, § 3832.

E. As to Limitation of Liability by Carrier, § 3833.

F. Subjects of Regulation, §§ 3834-3859.

a. In General, § 3834.

b. Corporations in General, § 3835.

c. Railroads, §§ 3836-3851.

(1) In General, § 3836.

(2) Power of Congress to Construct Railroad, § 3837.

(3) Safety of Persons and Property, §§ 3838-3846.

(a) In General, § 3838.

(b) Rolling Stock and Equipment, §§ 3839-3846.
aa. In General, § 3839.

bb. Safety Appliance Act, §§ 3840-3844.

(aa) In General, § 3840.

(bb) Construction of Act, § 3841.

(cc) Carriers Subject to Act, § 3842.

(dd) Appliances Required by Act, § 3843.

(ee) Enforcement of Act, § 3844.
cc. Train Crew, § 3845.
dd. Hours of Labor, § 3846.

(4) Protection of Lives and Limbs of Employees, §§ 3847-3848.

(a) In General, § 3847.

(b) Employers' Liability Act, § 3848.

(5) Qualifications, Duties and Liabilities of Employees, § 3849.

(6) Arbitration between ,Railroad and Employees, § 3850.

(7) Conspiracy to Obstruct Transportation, § 3851.

d. Express Companies, § 3852.
€. Ships, § 3853.

f. Wharves, § 3854.
g. Bridges, § 3855.
h. Navigable Waters, § 3856.

i. Packing Houses, § 3857.

j. Terminals and Stockyards, § 3858.

k. Connecting Carriers, § 3859.
II. Power of State, §§ 3860-3937.

A. In General, § 3860.

B. Corporations, § 3861.

C. Bridges, § 3862.

D. Ferries, §§ 3863-3864.

a. In General, § 3863.

b. Granting of Franchises and Control, § 3864.

E. Ships, § 3865.

F. Railroads, §§ 3866-3879.

a. In General, § 3866.

b. Location and Plan of Construction of Railroad, § 3867.

c. Purchase of or Consolidation with Competing Lines, § 3868.



CARRIERS. 3438

d. Requiring Recordation of Lease, § 38G9.

e. Requiring Railroad to Afford Transportation. § 3870.

f. Regulation of Charges for Transportation, §§ 3871-3880.

(1) In General, § 3871.

(2) Prohibiting Discriminations, § 3872.

(3) Prohibiting Greater Charge for Shorter than Longer Haul, § 3873.



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 63 of 214)