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riers, and the rate charged was a fixed sum per car. The service, being con-
fined to the handling of cars between two points in the same state, was not in-
terstate commerce, so as to render void an order of the state railroad commis-
sion reducing the charge therefor.'* -

Where Interstate Commerce Incidentally Affected. — To the extent that
it does not regulate interstate commerce, a state may regulate intrastate com-
merce and tlie fares and rates therein within its borders, and enforce regulations
which only incidentally affect interstate commerce*"^ The Railroad Commission
Act of Oregon of February 18, 1907, by its terms is unmistakably limited to the
regulation of carriers and rates between points within the state, and an order
made by the state railroad commission under its authority is presumptively in-
tended to be subject to the same limitation. The fact that such an order fix-
ing rates and limited by its terms to intrastate shipments may incidentally in-
duce a change in the movement of interstate commerce, or a change in interstate
rates, does not render it, nor the statute, unconstitutional as a regulation of in-
terstate commerce.'*'* That the enforcement of intrastate freight rates estab-



boro, etc., R. Co., 97 Ark. 300, 133 S. W.
1119.

The state railroad commission does not
have jurisdiction to regulate service
charges in the conduct of interstate com-
merce. Duluth-Superior Mill. Co. v.
Northern Pac. R. Co., 152 Wis. 528, 140
N. W. 1105.

If the state railroad commission erro-
neously assumes jurisdiction to pass on
the reasonableness of compensation by a
railroad company for services rendered
within the state, forming part of an en-
tire interstate transit, its decision is void.
Duluth-Superior Mill. Co. v. Northern
Pac. R. Co., 152 Wis. 528, 140 N. W. 1105.

A statute providing the rate of com-
pensation that railway companies shall
charge for the transportation of passen-
gers, is not a regulation of interstate
commerce, as such law applies only to
the rates to be charged within the state
on domestic commerce. Osborn v. Wa-
bash R. Co., 123 Mich. 669, 82 N. W. 52G.

Laws 1891, p. ]03, providing the rate
of compensation that railway companies
shall charge for t!ie transportation of
passengers, is not a regulation of inter-
state commerce, as such law applies only
to the rates to be charged within the
state on domestic commerce. Osborn ?'.
Wabash R. Co., 82 N. W. 52(), 123 Mich.
0G9.

41. Southern R. Co. v. Hunt, 42 Ind.
A])p. 90, 83 N. E. 721.

42. Chicago, etc., R. Co. v. Railroad



Comm., 17 3 Ind. 4G9, 87 N. E. 1030, 90
N. E. 1011.

43. Where interstate commerce inci-
dentally affected. — Shepard v. Northern
Pac. R. Co., 184 Fed. 765.

44. Oregon R., etc., Co. v. Campbell,
173 Fed. 957.

The act of the Legislature of Minnesota
of April 18, 1907 (Gen. Laws 1907, c.
232 [Rev. Laws Supp. 1909, §§ 2007-11 to
2007-17]), reducing commodity rates
within the state about 7.37 per cent, and
the orders of its railroad and warehouse
commission of September 6, 1906, reduc-
ing general merchandise rates within the
state from 20 to 25 per cent, and of May
3, 1907, reducing rates within the state
to distributing points, by their natural
and necessary effect substantially burden
and directly regulate interstate com-
merce, create undue and unjust discrimi-
nations between localities in Minnesota
and those in adjoining states, violate the
commerce clause, l)eing Constitution of
the United States, art. 1, § 8, and are void.
Shepard v. Northern Pac. R. Co., 184
Fed. 765.

The facts considered, and held, that the
unavoida])le effect of the general and
sweeping reductions of intrastate rates in
Minnesota, made by the acts and orders
considered, was and is substantially to
l)urden, directly to regulate, and to dis-
criminate against tlic interstate commerce
of the defendant companies, and to create
undue and unjust discriminations between
localities in Minnesota and those in other



§ 3871 CARRIERS. 3490

lished by a state commission between points within the state will make it neces-
sary for a carrier for the protection of its business to voluntarily reduce certain
of its interstate rates does not render the order of the commission invalid as
affecting interstate commerce."*^ But state laws, orders, and regulations con-
cerning intrastate commerce or the fares or rates therein, which substantially
regulate interstate commerce or fares or rates therein, are unconstitutional.'*^

Competition between Intrastate and Interstate Shipments. — State
•statutes fixing maximum fares and rates on shipments on railroads between in-
trastate points are not unconstitutional, as regulations of interstate commerce,
because between certain cities in the state there are lines of road lying wholly
within the state, and other lines which run in part through another state, and
hy long established custom and from the necessities of competition the latter
are compelled to make the same rates as the former, where the statutes have not
teen construed by the courts of the state to directly apply to the interstate
lines."* "^

Shipment to Foreign Country. — A contract by a railway company for
through shipment to foreign seaports by way of domestic seaports for a through
rate is not controlled by the interstate commerce law even though the rate ])aid
by the railroad for the ocean transportation reduced the inland rate to less than
the tariff rate to the domestic seaport."**^ A shipment of lumber destined by the
purchaser for export, made by the seller under a local bill of lading from an
interior point in Texas to a Texas Gulf port, at which the lumber was unloaded
without delay by the purchaser's order into slips or docks, in reach of ship's tackle,
and was then loaded into chartered ships, by which it was carried to foreign
ports — such shipment not being an isolated one, but typical of many others —
constitutes foreign commerce, and as such is governed by the tariffs on file with
the interstate commerce commission to the exclusion of the rates established
by the state railroad commission, although the seller had no connection with
the lumber after it reached the railway terminus, and had no concern with its
destination after it came into the hands of the purchaser, and no knowledge
thereof, and although the lumber had no definite foreign destination at the time
of the initial shipment."*"'

Where Destination Not Fixed. — Where a shipment of lumber had not been
made to any foreign point, and was not by the shipping contract started on its
final journey from the state, nor committed to a connecting carrier for transpor-
tation beyond the state, and required a further shipment to fix its destination

states, in violation of the commerce tional, as an interference with interstate

clause of the constitution. Shepard v. commerce. In re Arkansas Rate Cases,

Northern Pac. R. Co., 184 Fed. 765. 187 Fed. 290.

The act of the legislature of Minnesota 45. Northern Pac. R. Co. v. Lee, 199

of April 4. 1907 (Gen. Laws 1907, c. 97 Fed. 621.

[Rev. Laws Supp. 1909, §§ 2007-1 to 46. Shepard v. Northern Pac. R. Co.,

S007-2]), reducing passenger fares withm -[^g^ Fed. 765.

the state about 33^/3 per cent by its m a ^'j uu ..t «. ™ „^..

natural and necessary effect substantially J^^ ^^^''^' a"d neither the terms nor

burden and directly regulate interstate ^^e purpose, of state regulations, deter-

■I A ■ i J- mines whether they substantiaUy or only

commerce, create undue and unjust dis- ••.^11 a: ^ ■ ^ .... ™ ^

■ ■ .• 1 . 1 I - - • -Kir- mcidentally affect interstate commerce,

criminations between localities in Mmne- o, j xt ..u -o td n -10^ x^^a

, ., ■ A- ■ ■ ..4. •!.. Shepard v. Northern Pac. R. Co., 184 red.

sota and those in adjoining states, violate •~rK,

the commerce clause, being constitution ' '

oi the United States, art. 1, § 8, and are 47. Competition between intrastate and

■void. Shepard v. Northern Pac. R. Co., interstate shipments.— St. Louis, etc., R.

184 Fed. 763. Co. v. Hadley, 108 Fed. 317.

Rates established by a state for the in- 48. Through shipment to foreign ports.

trastate carriage of freight or passengers —St. Louis, etc., R. Co. v. Birge-Forbes

necessarily indirectly affect interstate Co. (Tex. Civ. App.), 139 S. W; 3.

rates; but that fact does not render the 49. Texas, etc., R. Co. v. Sabine Tram

establishment of such rates unconstitu- Co., 227 U. S. Ill, 33 S. Ct. 229.



3491



REGULATION AND CONTROL.



§ 3871



beyond the state, it was intrastate commerce, and subject to the rates fixed
by the Texas railroad commission.^"

Matter National in Character. — The fares and rates of transportation in
interstate commerce are national in character susceptible of uniform regulation,
and so far as the nation has not regulated them are free from regulation by
virtue of the commerce clause of the constitution. ^i The interstate transporta-
tion of passengers and freight being a matter national in its character, it is not
competent for the states to regulate the rates of charges of railroads for such
transportation even in the absence of any legislation by congress on the subject.
And a state statute intended to regulate such charges is void even as to that part
of the transportation which is within the state. ^^



50. Where destination not fixed. — Tex-
arkana, etc.. R. Co. v. Sabine Tram Co.
(Tex. Civ. App.), 129 S. W. 198.

51. Matter national in character. — Shep-
ard V. Northern Pac. R. Co., 184 Fed. 765.

52. Wabash, etc., R. Co. v. Illinois, 118
U. S. 557, 30 L. Ed. 244, 7 S. Ct. 4; Cov-
ington, etc.. Bridge Co. v. Kentucky, 154
U. S. 204, 38 L. Ed. 962, 14 S. Ct. 1087;
Fargo V. Michigan, 121 U. S. 230, 30 L.
Ed. 888, 7 S. Ct. 857; Railroad Comm.
Cases, 116 U. S. 307, 29 L. Ed. 636, 6 S.
Ct. 334, 1191; Cleveland, etc., R. Co. v.
Illinois. 177 U. S. 514, 44 L. Ed. 868, 20
S. Ct. 722; Louisville, etc., R. Co. v. Eu-
bank, 184 U. S. 27, 46 L. Ed. 416, 22 S.
Ct. 277. See, also, Smyth v. Ames, 169
U. S. 466, 42 L. Ed. 819, 18 S. Ct. 418.

Goods 'are transported between two
points in the same state, but in course of
transportation, they pass through another
state. Held, this constitutes interstate
commerce, and therefore the state rail-
road commissioners can be enjoined from
fixing and enforcing rates for such trans-
portation. Hanley v. Kansas, etc., R. Co..
187 U. S. 617, 47 L. Ed. 333, 23 S. Ct. 214,
distinguishing Lehigh Valley R. Co. v.
Pennsylvania, 145 U. S. 192, 36 L. Ed. 672,
12 _ S. Ct. 806, which was a tax upon
freight and not regulation of transporta-
tion.

The provisions of Code 1906, § 2482,
imposing a forfeiture on any railroad,
corporation, or agent which shall demand
or receive from any person any greater
toll for compensation or transportation
of freight or for weighing the same than
is provided by the act, are void so far
as is attempted to apply them to inter-
state commerce. Jennings v. Big Sandy,
etc., R. Co., 61 W. Va. 664, 57 S. E. 272.

It is not necessary to review the cases
in the federal supreme court which have
settled beyond peradvcnture that the na-
tional government has exclusive authority
to regulate interstate commerce under the
constitution of the United States; nor to
do more than reaffirm the equally well
settled proposition that over interstate
commerce transportation rates the state
has no jurisdiction, and that an attempt
to regulate such rates by the state or un-
<lcr its authority is void. Louisville, etc.,

4 Car— 25



R. Co. V. Eubank, 184 U. S. 27, 46 L. Ed.
416, 22 S. Ct. 277. And an order made by
a state commission under assumed au-
thority of the state, which directly bur-
dens or regulates interstate commerce,
will be enjoined. McNeill v. Southern R.
Co., 202 U. S. 543, 50 L. Ed. 1142, 26 S.
Ct. 722; Railroad Comm. v. Worthington,
225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653.

Power of Ohio commission to regulate
rate on "lake-cargo coal." — An unconsti-
tutional attempt directly to regulate and
control interstate commerce is made by
an order of the Ohio Railroad Commis-
sion establishing a freight rate on "lake-
cargo coal" billed from Ohio coal fields
to Ohio ports on Lake Erie, where such
rate is applicable only to such coal as is
in fact placed upon vessels at those ports
for carriage to points outside the state,
aiid covers the actual placing of such coal
upon the vessels, and the trimming or dis-
tributing of it in the holds so that the
vessels may safely proceed on their inter-
state journey. Railroad Comm. v. Wor-
thington, 225 U. S. 101, 56 L. Ed. 1004, 32
S. Ct. 653.

With reference to the character of the
transportation in this case, the court says:
"The question is, then, one of fact. Does
the transportation, which the rate pre-
scribed by the Railroad Commission of
Ohio covers, constitute interstate com-
merce? The shipper transports the coal
ordinarily upon bills of lading to himself,
or to another for himself, at Huron on
Lake Erie. The so-called 'lake cargo
coal' is necessarily shipped beyond Hu-
ron. If it stops there, another and higher
rate applies. Practically all of it is put
on vessels for carriage beyond the state,
usually to upper lake ports, and then, and
only then, the 70 cent rate fixed by the
commission applies. Tliis 70 cent rate
covers the transportation of tlie coal to
Huron, the placing of it on l)oard ves-
sels, and, if necessary, trimming it for
continuance of its interstate journey.
The situation then comes to this: that
the rate put in force is applicable only to
coal which is to be carried from the
mine in Oliio to the lake, there placed
upon vessels, and thence carried to up-
per lake ports beyond the state. By ev-



§ 3871



CARRIERS.



3492



In Absence of Regulation by Congress. — Although there are some cases
which seem to establish the rule that state statutes regulating rates of charges
for transportation on railroads, so far as they affect interstate traiTic, belong to
that class of commercial regulations which may be established by the laws of
the states until congress shall have exercised its power on the subject, •''^ these



ery fair test the transportation of this
coal from the mine to the upper lake
ports is an interstate carriage, intended
by the parties to be such, and the rate
fixed bj' the commission, which is in
controversy here, is applicable alone to
coal which is thus, from the beginning to
the end of its transportation, in inter-
state carriage, and such rate is intended
to and does cover an integral part of that
carriage, the transportation from the
mine to lake Erie port, the placing upon
the vessel, and the trimming or distrib-
uting in the hold, if required, so that the
vessel may complete such interstate car-
riage. We therefore reach the conclu-
sion that, under the fact shown in this
case, the Railroad Commission, in fixing
the rate of 70 cents for the transporta-
tion above described, attempted to di-
rectly regulate and control interstate
commerce." Railroad Comm. v. Worth-
ington, 225 U. S. 101. 56 L. Ed. 1004, 32
S. Ct. 653, distinguishing, Gulf, etc., R.
Co. V. Texas, 204 U. S. 403, 51 L. Ed. 540,
27 S. Ct. 360.

State law compelling carrier to receive
and carry interstate shipment on through
rate. — Congress has so completely taken
control of the subject of rate making and
charging by the provisions of the act to
regulate commerce and the amendments
thereof as to invalidate the provisions of
Code N. C. 1905, § 2631, so far as they
penalize the refusal of a carrier to re-
ceive a tender of freight for transporta-
tion to a point on the line of another car-
rier outside the state where no rate for
such shipment has been established, filed,
or published. Southern R. Co. v. Reid.
222 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140,
followed in S. C, 222 U. S. 444, 56 L.
Ed. 263, 32 vS. Ct. 145.

Congress has so completely taken con-
trol of the subject of railroad rate making
and charging as to invalidate the provi-
sions of a state statute so far as they
penalize the refusal of a railway carrier
to receive a tender of freight for trans-
portation to a point on the line of an-
other carrier outside the state, where the
carrier had no rate for such shipment.
Southern R. Co. v. Burlington Lumber
Co., 225 U. S. 99, 56 L. Ed. 1001, 32 S.
Ct. 657.

This is an action to recover penalties
under a statute of North Carolina for re-
fusal to receive goods for shipment. As
the statute is the same that was held bad,
so far as it concerns commerce among
the states in Southern R. Co. v. Reid, 222
U. S. 424, 56 L. Ed. 257, 32 8. Ct. 140,



and S. C, 222 U. S. 444, 56 L. Ed. 263,
32 S. Ct. 145, a short statement will be
enough. On January 26, 1907, the Bur-
lington Lumber Company tendered the
railway company at Burlington, North
Carolina, certain machinery for shipment
to Saginaw, Michigan, on a through bill
of lading. Sagninaw was not on the rail-
way company's line, the company had no
rates to Saginaw, and the agent had to
delaj^ in order to inquire of his superiors.
The result was that the through bill of
lading was not issued until April 3. The
suit, as we have said, is for the penalty,
and nothing else. The supreme court of
the state decided against the railway on
the same ground that it did in the deci-
sions already reversed. In the circum-
stances it seems unnecessary to discuss
the case more at length. Southern R. Co.
V. Burlington Lumber Co., 225 U. S. 99,
56 L. Ed. 1001, 32 S. Ct. 657.

53. In absence of regulation by con-
gress. — \\\ the case of the Chicago, etc.,
R. Co. V. Iowa, 94 U. S. 155, 24 L. Ed.
94, which directly related to railroad
transportation, a bill was filed by the
Chicago, Burlington and Quincy Railroad
Company, an Illinois corporation, to re-
strain the prosecution of suits against it
under "An act to establish reasonable
maximum rates of charges for the trans-
portation of freight and passengers on
the different railroads of this state." The
complainant was also the lessee of the
Burlington and Missouri Railroad in
Iowa, the two roads being connected by
a bridge which crossed the Mississippi
River at Burlington, thus making a con-
tinuous railroad from Chicago to Plats-
mouth on the Missouri River in Iowa.
The language of the court is as follows:
"The objection that the statute com-
plained of is void, because it amounts to
a regulation of commerce among the
states, has been sufficiently considered in
the case of Munn v. Illinois, 94 U. S. 113,
24 L. Ed. 77. This road, like the ware-
house in that case, is situated within the
limits of a single state. Its business is
carried on there, and its regulation is a
matter of domestic concern. It is em-
ployed in state as well as in interstate
commerce, and, until congress acts, the
state must be permitted to adopt such
rules and regulations as may be necessary
for the promotion of the general welfare
of the people within its own jurisdiction,
even though in doing so those without
may be indirectly affected." In short, the
case was treated as one of internal com-
merce only. Peik v. Chicago, etc., R.



3493



REGULATION AND CONTROL.



§ 3871



cases, so far as they have been supposed to lay down such a rule, have been
overruled by later decisions.^'*



Co., 94 U. S. 164, 24 L. Ed. 97. These
cases were examined and criticised in
Wabash, etc., R. Co. v. Illinois, 118 U.
S. 557, 30 L. Ed. 244, 7 S. Ct. 4; Cov-
ington, etc., Bridge Co. v. Kentucky, 154
U. S. 204, 38 L. Ed. 963, 14 S. Ct. 1087.

The cases of Munn v. Illinois, 94 U. S.
113, 24 L. Ed. 77; Chicago, etc., R. Co. v.
Iowa, 94 U. S. 155, 24 L. Ed. 94, and Peik
V. Chicago, etc., R._ Co., 94 U. S. 164,
24 L. Ed. 97, were cited with approval in
Ruggles V. Illinois, 108 U. S. 526, 27 L.
Ed. 812, 2 S. Ct. 832, in which the power
of a state to limit the amount of charges
by a railroad company for fares and
freight was recognized. Covington, etc.,
Bridge Co. v. Kentucky, 154 U. S. 204,
38 L. Ed. 962, 14 S. Ct. 1087.

In Chicago, etc., R. Co. v. Ackley, 94
U. S. 179, 24 L. Ed. 99. it was held that
a railroad company in Wisconsin could
not recover for the transportation of
property inore than the maximum fixed
by the act of that state of March 11, 1874,
by showing that the amount charged was
not more than a reasonable compensation
for the services rendered, and the court
said that the ruling in Peik v. Chicago,
etc., R. Co., 94 U. S. 164, 24 L. Ed. 97,
was applicable to that case, without stat-
ing whether or not the statute included
interstate transportation.

In Winona, etc., R. Co. v. Blake, 94
U. S. 180, 24 L. Ed. 99. it was held that
a railroad company in Minnesota having
been incorporated as a common carrier,
with all the rights and subject to all the
obligations which that term implies, was
bound to carry, when called upon for that
purpose, and charge only a reasonable
compensation therefor, and that neither
the act of the legislature of February 28,
1866, nor the constitution of the state,
adds to or takes from the grant as con-
tained in the original charter, and the
court said that the case fell directly
within the rulings of Munn v. Illinois, 94
U. S. 113, 24 L. Ed. 77; Chicago, etc., R.
Co. V. Iowa, 94 U. S. 155, 24 L. Ed. 94;
Peik V. Chicago, etc., R. Co., 94 U. S.
164, 24 L. Ed. 97; Chicago, etc., R. Co. v.
Ackley, 94 U. S. 179, 24 L. Ed. 99, with-
out stating whether or not the decision
related to interstate transportation. See,
also, Railroad Co. v. Fuller (U. S.), 17
Wall. 5G0, 21 L. Ed. 710.

54. In Wabash, etc., R. Co. v. Illinois,
118 U. S. 557, 30 L. Ed. 244, 7 S. Ct. 4,
the cases of Munn v. Illinois, 94 U. S.
113. 24 L. Ed. 77; Chicago, etc., R. Co.
V. Iowa, 94 U. S. 155, 24 L. Ed. 94, and
Peik V. Chicago, etc., R. Co., 94 U. S.
164, 24 L. Ed. 97, were examined, and,
they were held, in view of other cases
decided near the same time, not to ac-
tually establish the doctrine stated in the



text. But referring to the language of
these cases, the court said: "It cannot
be denied that the general language of
the court in these cases, upon the power
of congress to regulate commerce, may
be susceptible of the meaning which the
Illinois court places upon it. * * *
These extracts show that the question of
the right of the state to regulate the rates
of fares and tolls on railroads, and how
far that right was affected by the com-
merce clause of the constitution of the
United States, was presented to the court
in those cases. And it must be admitted
that, in a general way, the court treated
the cases Jhen before it as belonging to
that class of regulations of commerce
which, like pilotage, bridging navigable
rivers, and many others, could be acted
upon by the states in the absence of any
legislation by congress on the same sub-
ject. By the slighest attention to the
matter it will be readily seen that the cir-
cumstances under which a bridge may be
authorized across a navigable stream
within the limits of a state, for the use
of a public highway, and the local rules
which shall govern the conduct of the
pilots of each of the varying harbors of
the coasts of the United States, depend
upon principles far more limited in their
application and importance than those
which should regulate the transportation
of persons and property across the half
or the whole of the continent, over the
territories of half a dozen states, through
which they are carried without change of
car or breaking bulk. * * * j^ vj'xW
be seen, from the opinions themselves,
and from the arguments of counsel pre-
sented in the reports, that the question
did not receive any very elaborate consid-
eration, either in the opinions of the
court or in the arguments of counsel.

"We must, therefore, hold that it is
not, and never has been, the deliberate
opinion of a majority of this court that
a statute of a state which attempts to
regulate the fares and charges by railroad
companies within its limits, for a trans-
portation which constitutes a part of
commerce among the states, is a valid
law." Wabash, etc., R. Co. v. Illinois,
118 U. S. 557, 30 L. Ed. 244, 7 S. Ct. 4;
Louisville, etc., R. Co. v. Eubank, 184 U-
S. 27, 46 L. Ed. 416, 22 S. Ct. 277.

Referring to the decision in Wabash,
etc., R. Co. V. Illinois, 118 U. S. 557, 30
L. Ed. 244, 7 S. Ct. 4, the court in Cov-
ington, etc., Bridge Co. v. Kentucky, 154
U. S. 204, 38 L. Ed. 962, 14 S. Ct. 1087 r
said: "The substance of the opinion was.
that, if the prior cases were to be consid-



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