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ing every person operating a railroad in the state under a lease to have the same
recorded is not an interference with interstate commerce.-"

§ 3870. Requiring Railroad to Afford Transportation. — Where a car
of lumber tendered to a railroad company for transportation was found to have
been properly loaded, the carrier was liable for the penalty imposed by a state
law for refusal to receive the same for transportation, notwithstanding the car
was to be shipped out of the state.^^

Transportation of Passengers. — Interstate commerce is not directly bur-
dened, in violation of the federal constitution, by an order of a state railroad
commission directing an interstate railway company to discharge its corporate
duty by affording passenger train service between the terminus of a branch line
within the state and the point of intersection with the state line, although, to
avoid the useless expense of establishing terminal facilities at that point, the
passenger service directed by the order must be operated not only to the state
line, but some twenty miles beyond, where such facilities do exist. -

During Strike. — A state court has no jurisdiction to compel an interstate
railroad company to operate its road within the state, in the face of a general
strike, on the allegation that enough competent men are willing to work for rea-
sonable compensation.-*^

Permission to Discontinue Running of Trains. — The duty imposed on



19. Purchase or consolidation of com-
peting lines. — Louisville, etc., R. Co. v.
Kentucky, 161 U. S. 677, 40 L. Ed. 849,
16 S. Ct. 714, reaffirmed in Ornstine v.
Gary, 204 U. S. 669, 51 L. Ed. 672, 27 S.
Ct. 788. See, also, Cleveland, etc., R. Co.
V. Illinois, 177 U. S. 514, 44 L. Ed. 868,
20 S. Ct. 722; Northern Securities Co. v.
United States, 193 U. S. 197, 48 L. Ed.
679, 24 S. Ct. 436.

"While the constitutional power of the
state in this particular has never been
formally passed upon by this court, the
power of state legislatures to impose this
restriction upon the general authority to
consolidate has been recognized in a
number of cases. Railroad Co. v. Mary-
land (U. S.), 21 Wall. 456, 22 L. Ed. 678;
Shields v. Ohio, 95 U. S. 319, 24 L. Ed.
357; Wallace v. Loomis, 97 U. S. 146,
24 L. Ed. 895; New Buffalo v. Iron Co.,
105 U. S. 73, 26 L. Ed. 1024; Leaven-
worth County Comm'rs v. Chicago, etc.,
R. Co., 134 U. S. 688, 33 L. Ed. l064, 10
S. Ct. 708; Livingston County v. First
Nat. Bank, 128 U. S. 102, 32 L. Ed. 359,
9 S. Ct. 18; Keokuk, etc., R. Co. v. Mis-
souri, 152 U. S. 301, 38 L. Ed. 450, 14
S. Ct. 592; Ashley v. Ryan, 153 U. S.
436, 38 L. Ed. 773, 14 S. Ct. 865. In the
last case it was broadly held that a state,
in permitting railway companies to con-
solidate, might impose such conditions as
it deemed proper, and that the accept-
ance of the franchise implied a submis-



sion to the conditions, without which it
could not have been obtained." Louis-
ville, etc., R. Co. V. Kentucky, 161 U. S.
677, 40 L. Ed. 849, 16 S. Ct. 714, reaf-
firmed in Ornstine v. Cary, 204 U. S.
669, 51 L. Ed. 672, 27 S. Ct. 788.

Purchase or consolidation of compet-
ing lines. — Interstate commerce is not
burdened by requiring railroad companies
to operate a particular line which they
selected, or represented that they had se-
lected, in a petition to the state railroad
commission for approval of a consolida-
tion, although compliance may entail ex-
pense, or require the exercise of emi-
nent domain. Mobile, etc., R. Co. v.
State, 41 So. 259, 89 Miss. 724, affirmed
in Mobile, etc., R. Co. v. Mississippi, 210
U. S. 187, 52 L. Ed. 1016, 28 S. Ct. 650.

20. Recording lease. — Commonwealth
V. Chesapeake, etc., R. Co., 101 Ky. 159,
40 S. W. 250, 19 Ky. L. Rep. 329.

21. Duty to afford transportation. —
Currie v. Raleigh, etc., R. Co., 135 N.
C. 535, 47 S. E. 654.

22. Transportation of passengers. —
Judgment, Taylor z'. Missouri Pac. R.
Co., 76 Kan. 467, 92 Pac. 606, affirmed in
Missouri Pac. R. Co. v. Railroad
Comm'rs, 216 U. S. 262, 54 L. Ed. 492,
30 S. Ct. 330.

23. During strike. — State v. Great
Northern R. Co., 14 Alont. 381, 36 Pac.
458.



3485



REGULATION AND CONTROL.



3870



railroad companies to make written application to railroad commissioners for
consent before discounting intrastate passenger trains is not an unlawful bur-
den on interstate commerce.-'^

Compelling Running of Regular Train. — The Act of Missouri, Alarch 19,
1907, requiring the running of at least one regular passenger train each way
every day over all railroad lines, is not invalid as a regulation of interstate
commerce.-^ An order of a state railroad commission which requires a railroad
company, operating a road continuously into an adjoining state, to operate each
way daily a passenger train, in addition to the trains in operation, between the
state line to a point in the state, does not interfere with interstate com-
merce.-''

Compelling Running of Additional Train. — A public service commission
may compel an interstate railroad to put on additional trains in certain cases, as
well as companies operating wholly within the state. -^

Operation of Particular Line. — Interstate commerce is not burdened by
requiring railroad companies to operate a particular line which they selected,
or represented that they had selected, in a petition to the state railroad commis-
sion for approval of a consolidation, although compliance may entail expense,
or require the exercise of eminent domain.-*'

Facilities for Transportation. — While there is much to be said in favor of
laws compelling railroads to furnish adequate facilities for the transportation of
both freight and passengers,-'^ the absolute requirement by a state statute that a



24. Permission to discontinue running
of trains. — Railroad Comm'rs v. Atlantic,
etc., R. Co., 61 Fla. 799, 54 So. 900.

25. Compelling running of regular
train.— State v. Chicago, etc., R. Co., 239
Mo. 196, 143 S. W. 785.

26. Chicago, etc., R. Co. v. Oglesby,
198 Fed. 153.

St. 1911, § 1801, providing that every
railroad corporation shall maintain a sta-
tion at every village having a postoffice
and containing 200 inhabitants or more,
and shall stop at least one passenger
train each way each day at such sta-
tion, if so many trains are run, and, if
four or more passenger trains are run
each way daily, at least two such trains
each way each day shall be stopped at
each and every such station, was neither
illegal as applied to an interstate railroad
company as interfering with interstate
commerce, nor unreasonable. Chicago,
etc., R. Co. V. Railroad Comm., 152 Wis.
654. 140 N. W. 296.

That compliance with a statute requir-
ing an interstate railroad company to
stop at least two trains each way each
day at stations having population of 200
or more (St. 1911, § 1801) would require
the company to put on an additional lo-
cal train each way daily at a cost of
$7,000 per month, which would be run
at a financial loss, did not show that the
requirement was illegal as confiscatory or
unreasonable, where it was not shown
that the whole passenger revenue of the
road within the state was not ample to
meet the additional expense with a fair
margin of profit, since, if the required
service is reasonable, it is no answer that
it would have to be performed at a finan-



cial loss. Chicago, etc., R. Co. v. Rail-
road Comm., 152 Wis. 654, 140 N. W.
296.

27. Compelling rimning of additional
train. — Delaware, etc., R. Co. v. Stevens,
172 Fed. 595.

28. Operation of particular line. —
Judgment, Mobile, etc., R. Co. v. State,
89 Miss. 724, 41 So. 259, affirmed in Mo-
bile, etc., R. Co. V. Mississippi, 210 U. S.
187, 52 L. Ed. 1016, 28 S. Ct. 650.

29. Adequate facilities for transporta-
tion. — Houston, etc., R. Co. v. Mayes,
201 U. S. 321, 50 L. Ed. 772, 26 S. Ct. 491.

Adequate facilities for transportation —
Equal accommodations. — Compelling a
carrier by mandamus to discharge its
common-law duty to treat all shippers
alike by resuming the transfer of cars
loaded and unloaded between the line
of a connecting carrier and the flour mill
and elevator of a particular shipper is
not beyond the power of the state court,
at least, until congress or the interstate
commerce commission takes specific ac-
tion, although both carriers are engaged
in interstate commerce, and three-fifths
of the output of the mill are shipped out
of the state. Judgment, Larabee Flour
Mills Co. V. Missouri Pac. R. Co., 88
Pac. 72, 74 Kan. 808, affirmed in 211 U.
S. 612, ,'-,:i L. Ed. 352, 29 S. Ct. 214.

Regulations of American Railway As-
sociation — Fairness and Sufficiency. —
Power to determine the validity and suf-
ficiency of the rules and regulations of
the American Railway Association with
respect to matters of interstate com-
merce, which rules govern ninety per
cent of the railroads, and hence a vast
proportion of the interstate commerce of



§ 3870



CARRIERS.



3486



railroad shall furnish to shippers a certain nuniher of cars at a specified date^
regardless of every other consideration except strikes and other public calamities,
and making the failure to furnish such cars punishable not only by damages
actually incurred by the shipper, but also by an arbitrary penalty, as applied to
interstate shipments, transcends the police power of the state and amounts to
a burden upon interstate commerce. ^"^ It is competent for a state to require
railroad companies, including those engaged in interstate commerce, whose lines,
or tracks intersect the lines or tracks of other companies, to provide at such
points of intersection, where it is practicable and necessary for the interests of
traffic, ample facilities by track connections for transferring cars from the lines
or tracks of one company to those of another, and to provide at such points of
intersection equal and reasonable facilities for the interchange of cars and traffic
between their respective lines, and for the receiving, forwarding and delivering
of property and cars to and from their respective lines. Such a requirement af-
fords facilities to interstate commerce, and in no wise regulates such commerce
within the meaning of the constitution. ^i A state res:ulation intended to facili-



the country, is vested primarily in con-
gress and in the interstate commerce
commission and, is not to be tested by
state laws or by decisions of the state
courts. St. Louis, etc., R. Co. v. Arkan-
sas, 217 U. S. 136. 54 L. Ed. 698, 30 S.
Ct. 476, 29 L. R. A., N. S., 802.

Interchange of cars — Penalty for fail-
ure to supply cars on demand. — For ex-
ample tlie validity and sufficiency of the
rules of such association with the re-
spect of the interchange of cars by roads
engaged in interstate commerce is a ques-
tion which can not be tested by the de-
cisions of state courts nor by state laws;
and a state law which undertakes to com-
pel the roads within the state to supply
cars to shippers on demand under very
heavy penalties in case of failure to do
so, thereby putting the road in the posi-
tion of having to pay such penalties or
withdraw large numbers of its cars from
the uses of interstate commerce and from
interchange of cars with interstate roads
in accordance with the rules of the Amer-
ican Railway Association, is unconstitu-
tional as burdening interstate commerce.
St. Louis, etc., R. Co. v. Arkansas, 217
U. S. 136, 54 L. Ed. 698, 30 S. Ct. 476,
29 L. R. A., N. S., 802.

Interstate commerce is unconstitution-
ally regulated by Kirby's Dig., Ark., §§
6803, 6804, making it the carrier's duty to
supply cars to shippers on demand, un-
der which a carrier will either be com-
pelled to desist from the interchange of
cars with connecting lines for the pur-
pose of moving interstate commerce be-
cause of a refusal of the state courts to
permit it to avail itself, as causing and
excusing its default, of the rules and
regulations adopted for the interchange
of cars by the American Railway Asso-
ciation, which govern 90 per cent of the
railways in the United States, or will be
obliged to conduct such business with
the certainty of being subjected to the
heavy penalties provided by the statute.
St. Louis, etc., R. Co. v. State, 107 S.



W. 1180, 85 Ark. 311, 122 Am. St. Rep-
33, reversed. St. Louis, etc., R. Co. v.
Arkansas, 217 U. S. 136, 54 L. Ed. 698,.
30 S. Ct._ 476, 29 L. R. A.. N. S., 802.

Requiring additional train service. — In-
terstate commerce is not directly bur-
dened, in violation of the federal con-
stitution, by an order of a state railroad
commission, directing an interstate rail-
way company to discharge its corporate
duty by affording passenger train serv-
ice between the terminus of a branch
line within the state and the point of in-
tersection with the state line, although,
to avoid the useless expense of estab-
lishing terminal facilities at that point,,
the passenger service directed by the or-
der must be operated not only to the
state line, but some 20 miles beyond,
where such facilities do exist. Judgment,.
Taylor v. Missouri Pac. R. Co., 92 Pac.
606, 76 Kan. 467, affirmed in Missouri
Pac. R. Co. V. Railroad Comm'rs, 216 U.
S. 262, 54 L. Ed. 492, 30 S. Ct. 330.

30. Requiring certain number of cars
at specified day. — Houston, etc., R. Co.
V. Mayes, 201 U. S. 321, 50 L. Ed. 772,
26 S. Ct. 491 (construing Rev. Stat.^
Texas, articles 4497-5000).

31. Track connections and facilities for
interchange of cars. — Wisconsin, etc., R.
Co. V. Jacobson, 179 U. S. 287, 45 L. Ed.
194, 21 S. Ct. 115; Minneapolis, etc., R.
Co. V. Minnesota, 186 U. S. 257, 46 L.
Ed. 1151, 22 S. Ct. 900.

In Wisconsin, etc., R. Co. v. Jacobson,
179 U. S. 287, 45 L. Ed. 194, 21 S. Ct.
115, it was held that neither the judg-
ment of the lower court requiring the
two railroads affected by that case to
provide such facilities for the interchange
of cars and traffic at a particular point of
intersection, nor the statute of Minnesota
(General Laws of Minnesota, 1895, ch.
91) upon which such judgment was
founded, constituted an interference with
or a regulation of interstate commerce,
it being stated in the opinion of the su-
preme court of Minnesota that there was-



3487



REGULATION AND CONTROL.



3870



tate the receipt and delivery of freight by enlarging the carrier's facilities is not
an interference with interstate commerce. ^-

Furnishing- Cars. — When applied to interstate, shipments, the provision of
a state statute which penalizes the failure of a railway company to furnish cars
to a shipper within a certain number of days after the latter's requisition in
writing in a certain sum a day for each car not so furnished, and admits of no
excuse such as arises from strikes or other public calamity, is an unconstitu-
tional regulation of interstate commerce.^-^ Interstate commerce is a statute un-



ample evidence in tlie case of a necessity
for such track connection resulting from
the benefit which would accrue to ex-
clusively state commerce when consid-
ered alone, to justify the ordering of the
•connection in question. The question
whether any other portion of the stat-
oite was a regulation of interstate com-
merce was not decided.

32. North Carolina Corp. Comm. v.
Southern R. Co., 151 N. C. 447, 66 S. E.
427.

33. Furnishing cars. — Judgment, 36
Tex. Civ. App. 606, 83 S. W. 53, reversed
in Houston, etc., R. Co. v. Mayes, 201
U. S. 321, 50 L. Ed. 772, 26 S. Ct. 491.

A rule promulgated by the state cor-
poration commission required railway
companies to furnish cars of the required
kind upon four days' application, and pro-
vided for a forfeiture for each day's de-
fault. By another rule the commission
reserved the right at any time or under
any circumstances to suspend the oper-
ation of the rules whenever justice might
demand. Held, that the rule was unrea-
sonable and void as applied to shipments
to points outside the state. Southern R.
Co. V. Commonwealth, 107 Va. 771, 60
S. E. 70, 17 L. R. A., N. S., 364.

The legislature may prescribe a pen-
alty for the failure of railroads to fur-
nish cars for the shipment of freight,
although the shipment in contemplation
is to be an interstate shipment. Hous-
ton, etc., R. Co. V. Everett (Tex. Civ.
App.), 86 S. W. 17, judgment reversed
in 99 Tex. 269, 89 S. W. 761.

vSess. Laws 1905, c. 10, art. 2, § 2, im-
posing on a railroad the penalty of $1 a
day for failure to furnish cars within
four days after request, but excusing a
company in case of certain unavoidable
casualties, is not an infringement of the
constitution of the United States, art. 1,
§ 8, relating to interstate commerce.
Chicago, etc., R. Co. v. Beatty, 34 Okla.
321, 118 Pac. 367, 126 Pac. 736, 42 L.
R. A., N. S., 984.

A state law imposing a penalty of $1
per day on each car for delay in fur-
nishing freight cars ordered, and to per-
mit no excuse therefor except "strikes,
unavoidable accidents, and other i)ublic
calamities," is not invalid, but a reason-
able police regulatif)n imposing no con-
siderable l)urden on interstate commerce.
Laws 1905, p. 570, c. 345; Patterson v.



Missouri Pac. R. Co., 77 Kan. 236, 94
Pac. 138, 15 L. R. A., N. S., 733.

A rule of the railroad commission re-
quiring a carrier to furnish cars for in-
trastate shipments promptly upon re-
quest is not void as imposing a burden
upon interstate commerce, even if it in-
directly or incidentally affects to a lim-
ited degree interstate business, where it
does not directly burden it. Southern R.
Co. V. Melton, 133 Ga. 277, 65 S. E. 665.

Since Act Feb. 18, 1907 (Laws 1907,
p. 77) § 26, requiring railroads to fur-
nish cars on demand by shippers, covers
a field not occupied by the federal act
of Feb. 4, 1887, c. 104, 24 Stat. 379 (U.
S. Comp. St. 1901, p. 3154), known as the
interstate commerce law, as amended by
Act June 29, 1906, c. 3591, 34 Stat. 584
(U. S. Comp. St. Supp. 1909, p. 1149), in
that it regulates the manner of making
the request, the excuses that may be
made for a failure to deliver cars, and
adds an additional penalty by way of
demurrage for failure to comply with its
terms, it is not superseded by nor in con-
flict with the federal statute. Martin v.
Oregon R., etc., Co., 58 Ore. 198, 113
Pac. 16.

Act Feb. 28, 1907 (Acts 1907, p. 225),
imposing a penalty on railroad compa-
nies for failure to deliver freight cars to
prospective shippers within a specified
time after demand, is violative of the
constitution of the United States, art. 1,
§ 8, providing that congress shall have
the power to regulate commerce among
the several states, in so far as it may af-
fect cars which may be used in inter-
state commerce or may be used therein,
so they can not be supplied. Central,
etc.. R. Co. V. Groesbeck, 175 Ala. 189,
57 So. 380.

Terr. Laws 1905, c. 10, art. 2, § 2, im-
posing upon railroads a penalty of $1
per day for failing to furnish cars under
certain circumstances, is not violative of
Act Cong. June 29, 1906, requiring cars
to he furnished on reasonable request.
Chicago, etc., R. Co. v. Beatty, 34 Okla.
321, 126 Pac. 736, 42 L. R. A., N. S., 984,
affirming judgment on relicariiig, 118
P;ic. 367.

Section 22 of the act requiring railroads
to furnish cars within a reasonable time
for the transportation of property offered
(Hurd's Rev. St. 1911, c. 114, § 84) is not
violative of tlic commerce clause of the



§§ 3870-3871 CARRIERS. , 3488

constitutionally regulated by making it the carrier's duty to supply cars to ship-
pers on demand, under which a carrier will either be compelled to desist from
the interchange of cars with connecting lines for the purpose of moving inter-
state commerce because of a refusal of the state courts to permit it to avail itself,
as causing and excusing its default, of the rules and regulations adopted for the
interchange of cars by the American Railway Association, which governs 90 per
cent of the railways in the United States, or will be obliged to conduct such busi-
ness with the certainty of being subjected to the heavy penalties provided by
the statute.^'*

Furnishing Passenger Trains. — A railway company may be compelled by
law to furnish trains for the carriage of passengers, and loss to the railroad is
no defense to the enforcement of the law.^^

Where Congress Has Acted. — Congress has so taken possession of the
subject of delivery of railroad cars for interstate commerce under Act June 29,.
1906, as to invalidate, when applied to cars demanded for interstate commerce,
provisions of Laws 3tlinn. 1907, requiring railroad companies to furnish freight
cars on demand under penalty.^*"'

Equipment of Cars. — A state statute requiring a carrier to equip its cars
furnished to haul lumber or timber with sufficient standards and other appli-
ances to keep the cargo hrmly in place, and providing that the weight of the
standards shall be a part of the car, and not of the cargo, and imposing a penalty
for not complying therewith, does not constitute a burden upon interstate com-
merce.^'''

§§ 3871-3880. Regulation of Charges for Transportation— § 3871.
In General. — A contract between a shipper and a railroad company for the car-
riage of goods from a point within one state to a point in another state is in-
terstate commerce, and is not the subject of state regulation as to tolls or com-
pensation therefor. 2^

Between Points in Same State. — A state has the legislative power to es-
tablish the rates of compensation for carriage of commodities between points
within the state. -^^ A state has power to regulate the amount of charges that may
be exacted by a railroad for transportation of property within the state, if the
rate fixed will afford reasonable compensation, and such regulation does not
amount to a regulation of foreign or interstate commerce."*"' In proceedings be-

federal constitution. Mulberry Hill Coal Elevator Co., 226 U. S. 426, 57 L". Ed.

Co. V. Illinois Cent. R. Co., 257 111. SO, 284, 33 S. Ct. 174, 46 L. R. A., N. S., 203.

100 N. E. 151. reversing judgment 110 Minn. 25, 124 N.

Rule of state railroad commission un- W. 819, 19 Am. & Eng. Ann. Cas. 1088.

der which a per diem penalty may be ex- 37. Equipment of cars. — King Lumber,

acted from an interstate carrier for de- etc., Co. v. Atlantic, etc., R. Co., 58 Fla.

lay in delivering cars to the consignee 292, 50 So. 509.

held an unreasonable burden on inter- 38. From point in one state to point in
state commerce, where the requirement another. — Jennings v. Big Sandy, etc., R.
as to delivery is absolute, and makes no Co., Gl W. Va. 664, 57 S. E. 272.
allowance for any unavoidable cause for Act Pa. May 24, 1907 (P. L. 229), pro-
failure to deliver. Yazoo, etc., R. Co. v. viding maximum car service charges, in-
Greenwood Grocery Co., 227 U. S. 1, 33 eluding car storage charges, that railroad
S. Ct. 213, reversing judgment 96 Miss. companies may impose, is invalid as to
403, 51 So. 450. goods and cars engaged in interstate

34. Judgment, St. Louis, etc., R. Co. v. commerce, in view of the fact that con-
State, 85 Ark. 311, 107 S. 'W. 1180, 122 gress has legislated on the subject by
Am. St. Rep. 33, reversed in St. Louis, the federal acts of February 4, 1887 (ch.
etc., R. Co. V. Arkansas, 217 U. S. 136, 104, 24 Stat. 379), and June 29, 1906 (ch.
54 L. Ed. 698, 30 S. Ct. 476, 29 L. R. 3591, 34 Stat. 584 [U. S. Comp. St. Supp.
A., N. S., 802. p. 892]). Pennsylvania R. Co. v. Cog-

35. Furnishing passenger trains. — State gins Co., 38 Pa. Super. Ct. 129.

V. Chicago, etc., R. Co., 239 Mo. 196, 143 39. Between points in same state. —

S. W. 785. Southern R. Co. r. Hunt, 42 Ind. App. 90.

36. Where congress has acted. — Chi- 83 N. E. 721.

cago, etc., R. Co. v. Hardwick Farmers' 40. Chapman, etc.. Land Co. v. Jones-



3489



REGULATION AND CONTROL.



3871



fore the railroad commission to fix local freight rates on coal, the fact that the
coal handled hy the petitioner is interstate traffic does not affect the jurisdiction
of the commission to fix rates, since the matter in controversy is the local rate
and not a particular shipment.'* ^ A carrier picked up empties from connecting
carriers, hauled them to a gravel quarry, and returned them when loaded, both
the point of connection with such other carriers and the quarry being in the
same state. It furnished no equipment, and there was nothing to show that
it issued bills of lading to destination points, or that it was in any way liable for,
or concerned in the movement of, the cars after delivery to the connecting car-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 73 of 214)