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accordance with the federal statutes, published its rate for interstate traffic, and
filed this rate with the interstate commerce commission and the state railroad
commission, joined with other carriers in transporting marble, consigned to
plaintiff, from Vermont to Kentucky, the shipment was interstate commerce, and
subject to the freight rates fixed for interstate commerce, and noi the local rates
fixed by the state railroad commission, though defendant had no agreement with
the initial carriers that it would constitute a part of a through line for interstate
commerce from A'ermont to Kentucky. ^^

Notice of Charges. — A law requiring a carrier to inform a consignee of the
freight charges and to deliver the freight on tender or payment of the charges,
subject to a penalty for failure to do so, is not an interference with interstate
commerce in case of an interstate shipment, in violation of the constitution of the
United States. ^-

§ 3875. Sale and Redemption of Tickets. — A state law requiring rail-
roads to provide agents authorized to sell tickets with a certificate of authority,
and making it unlawful for a person not possessed of such a certificate from a
railroad to sell tickets or operate a ticket office, is not repugnant to the constitu-
tion of the United States, giving congress power to regulate commerce among
the several states, because it relates to tickets of railroads without, as well as to
those of railroads within, the state. ^^

Redemption of Tickets. — A state law requiring railroad companies to pro-
vide for the redemption of unused tickets on presentation in due time, and impos-
ing a penalty for a failure to redeem, does not apply to any ticket for continuous
passage from points within the state to any place beyond its limits, but to tickets
issued by railroads in the state for passage from and to points within the state,
and in such cases is valid. '^^

§ 3876. Commutation Tickets.— An order of a state railroad commission
requiring a railroad company to afi:ord intrastate commutation service and to sell
tickets and to publish rates for such service, does not involve any interference
with nor impose a burden upon interstate commerce, as the order relates solely to
intrastate transportation.^^

acter, and valid until superseded by the 83. Sale of tickets. — State v. Thomp-

paramount action of congress. Cited in son, 47 Ore. 492, 84 Pac. 476, 4 L. R.

Gulf, etc., R. Co. V. Hefiey, 158 U. S. A., N. S., 480; State v. Bollam, 47 Ore.

98, 39 L. Ed. 910, 15 S. Ct. 802; Henning- 639, 84 Pac. 479.

ton V. Georgia, 163 U. S. 299, 41 L. Ed. A state statute entitled "Act act to

166, 16 S. Ct. 1086. prevent fraud upon travelers," and mak-

80. The act of congress of June 15, ing it unlawful for any person not an
1906, c. 124, 14 Stat. 66 and the statute authorized agent of the carriers to sell
of Iowa passed in 1862, do not conflict, a passenger ticket, is not violative of the
do not prescribe different rules, and only constitution of the United States respect-
in a very general sense can be said to ing interstate commerce in attempting to
he in relation to the same subject mat- regulate the commerce among the several
ter. Railroad Co. v. Fuller (U. S.), 17 states, as it is not an attempt to make a
Wall. 560, 21 L. Ed. 710; Gulf, etc., R. rule affecting interstate commerce. Act
Co. V. Hefley, 158 U. S. 98, 39 L. Ed. May 6, 1863 (P. L. 582); Commonwealth
!»10, 15 S. Ct. 802. T'. Keary, 19S Pa. 500, 48 Atl. 472.

81. Joint through rates. — Corcoran v. 84, Redemption of tickets. — Missouri,^
Louisville, etc., R. Co., 101 S. W. 1185, etc., R. Co. v. Fookes (Tex. Civ. App.),
31 Ky. L. Rep. 197. 10 S. W. 858.

82. Notice of charges. — Harrill Bros. v. 85. Commutation tickets. — The board
Southern R. Co., 144 N. C. 532, 57 S. E. of ])u!)Iic utility commissioners made an
383. order requiring {^) cacii railroad com-



.§§ 3877-3879



CARRIERS.



3500



§ 3877. Mileage Tickets. — It is not a sufficient objection to a state law re-
quiring railroad corporations to provide mileage tickets which shall be accepted
for passage and fare upon all railroad lines in the state that it may incidentally
afifect commerce between the states, if it does not attempt to regulate such com-
merce. ^^ A state law requiring railroads operating "in this state" to issue mile-
age books entitling the holder "to travel 1,100 miles on the lines of such railroad,"
are intended to make such mileage books good only for passage between points
within the state, and therefore do not, as regards railroads extending beyond the
state, interfere with interstate commerce.^"

§ 3878. Limitation of Charges to Amount Specified in Bill of Lading.

— Where a state statute and the national law operates upon the same subject mat-
ter, and prescribe different rules concerning it, and the national law is one within
the competency of congress to enact under the power given to regulate com-
merce between the states, the state statute must give way.*^ Accordingly, where
a state statute makes it unlawful for a railroad in the state to charge and collect
a greater sum for the transportation of freight than is specified in the bill of
lading, and an act of congress provides that it shall be unlawful for any com-
mon carrier, subject to the provisions of the act, to charge or collect a greater
or less compensation for the transportation of passengers or property than is
specified in its published schedule of rates, fares and charges in force at the
time, the two acts, as to interstate shipments, operate upon the same subject
matter and prescribe different rules, and the state law must give way.^*-'

§ 3879. Ferriage Charges. — The inclusion of railroad ferries in Act Feb.
4, 1887, § 1, regulating interstate commerce, invalidates any regulation under



pany affording intrastate commutation
service from points in New Jersey to
Jersey City, N. J., or to Hoboken, N.
J., when request is made upon it and
proper payment is tendered therefor, to
sell tickets for said commutation service
specifically designating in every case
both termini of the journey, and to pub-
lish rates for such commutation service
designating both termini specifically, and
to file schedules of said rates with the
commission; and (2) requiring each rail-
road company carrying in intrastate jour-
neys passengers to or from Jersey City,
N. J., or to or from Hoboken, N. J., at
special rates to follow the same course
with respect to the sale of special rate
tickets, publication of rates, and filing of
schedules. The order was based upon a
determination of (a) the existence of
"regulations" and "practices" that are
unjust and unreasonable and arbitrarily
or unjustly discriminatory; and (b) the
subjection of persons and localities to
prejudice and disadvantage. Held, that
the order under review does not involve
any interference with, nor impose any
burden upon, interstate commerce. Penn-
sylvania R. Co. V. Board, 83 N. J. L. 67,
83 Atl. 94.5.

86. Mileage tickets. — Attorney General
V. Old Colony R. Co., 160 Mass. 62, . 35
N. E. 252, 22 L. R. A. 112.

87. Judgment, 54 N. Y. S. 1114, 33 App.
Div. 643, affirmed in Purdy v. Erie R.
Co., 56 N. E. 508, 162 X. Y. 42, 48 L.
R. A. 669.



Laws 1895, c. 1027, § 1, as amended by
Laws 1896, c. 835, which provides that
railroads operating "in this state" shall
sell mileage books at a certain rate, does
not, as regards a railroad whose lines ex-
tend beyond the state, interfere with in-
terstate commerce, as it applies only to
carrying passengers between points in
the state. Dillon v. Erie R. Co., 43 N.
Y. S. 320, 19 Misc. Rep. 116; Beardsley v.
New York, etc., R. Co., 44 N. Y. S.
175, 15 App. Div. 251, judgment reversed
in 56 N. E. 488, 162 N. Y. 230.

Pub. Acts 1891, No. 90, requiring rail-
road companies in the state to keep for
sale 1,000-mile tickets, at certain specified
rates, to be issued in the name of the
purchaser, his wife and children, and
valid for two years, was intended to ap-
ply only to the transportation of passen-
gers within the state, and is therefore
not invalid, as being a regulation of in-
terstate commerce. Smith v. Lake Shore,
etc., R. Co., 72 N. W. 328, 114 Mich. 460,
reversed in 19 S. Ct. 565, 173 U. S. 684,
43 L. Ed. 858.

88. Limitation of charges to amount
specified in bill of lading. — Gulf, etc., R.
Co. V. Hefley, 1^8 U. S. 98, 39 L. Ed.
910, 15 S. Ct. 802.

89. Gulf, etc., R. Co. v. Hefley, 158 U.
S. 98, 39 L. Ed. 910, 15 S. Ct. 802, dis-
tinguishing Railroad Co. v. Fuller (U.
S.), 17 Wall. 560, 21 L. Ed. 710, in the
fact that the act of congress herein con-
sidered had not been passed at the time
of the decision in that case.



3501



REGULATION AND CONTROL.



§§ 3879-3880



state authority of the rates charged by a railway company of a ferry on navigable
stream forming the boundary between two states. ^^

§ 388 0. Demurrage Charges.^The rules prescribed by a state corporation
commission with reference to storage, demurrage, car service, and car detention
charges, are not void because in their operation they affect incidentally interstate
and foreign commerce.^ ^ A state has no power to prescribe that a consignee,
who has received a car the property of a common carrier of another state con-
taining goods which have been consigned from another state, shall have practi-
cally three days of free time within which to unload the car and shall, if he
wishes, have the right to retain the car, while standing upon the public sidings
of the final carrier, for an indefinite period upon payment for the same at the
rate of one dollar per day.'-*-

Reciprocal demurrage laws imposing a penalty upon a railroad for failure to
furnish cars to shippers when applied for, was designed and in operation tended to
insure the prompt performance by the carrier of its common-law duty to furnish
cars for transportation of freight, and, making sufficient allowance for practical
difiiculties in railroad movement in its enumeration of exceptions to liability, was
not displaced by the Interstate Commerce Act primarily intended to secure rea-
sonable rights and to prevent unjust discriminations.^^

Storage Charges. — An order of the state corporation commission providing
that ten days' free storage shall be allowed on less than carload shipments, when
destined to consignees living at interior points, five miles or more from the rail-
road station, in so far as it applies to interstate commerce, is void as in conflict
with and superseded by the Hepburn Act of June 29, 1906, relating to interstate



90. Ferriage charges.— New York, etc.,
R. Co. V. Board, 227 U. S. 248, 33 S. Ct.
269, reversing judgment, 76 N. J. L. 664,
74 Atl. 954, 16 Am. & Eng. Ann. Cas.
858.

91. Demurrage charges. — -Atlantic, etc.,
R. Co. V. Commonwealth, 46 S. E. 911,
102 \a. 599.

92. Pennsylvania R. Co. v. Scroggins
Co., 38 Pa. Super. Ct. 129.

93. Hardwick Farmers' Elevator Co.
V. Chicago, etc., R. Co., 110 Minn. 25, 124
N. W. 819, 19 Am. & Eng. Ann. Cas.
1088; Gray v. Minneapolis, etc., R. Co.,
110 Minn. 527, 124 N. W. 1100.

The state railroad commission may fix
reciprocal demurrage rules, making the
carrier liable for delays in delivery of
interstate shipments after arrival at the
point of consignment, since this imposes
no additional duty on the carrier, but
merely compels the fulfillment of a duty
that is an incident to the contract of car-
riage, and is in aid of commerce, rather
than an obstruction to it, and operates
after the transportation is completed. Ya-
zoo, etc., R. Co. V. Greenwood Grocery
Co., 90 Miss. 403, 51 So. 450.

Act April 19, 1907 (Acts 1907, p. 453)
§ 3, requiring railroad companies, failing
to give notice of arrival to the consignee
within 24 hours thereafter, to forfeit to
the interested party $5 a day per car on
car load shipments, and 1 cent a hundred
pounds per day on less than car load
shipments, with a minimum and maxi-
mum charge of 5 cents and $5, respect-
ively, on less than car load shipments.



together with the other sections impos-
ing a reciprocal demurrage on consign-
ees for failure to remove freight, being
a reasonable regulation in aid of com-
merce, and not a burden upon it, is valid
as to interstate commerce; Congress or
the Interstate Commerce Commission not
having made similar regulations. St.
Louis, etc., R. Co. v. Edwards, 94 Ark.
394. 127 S. W. 713.

The subject of the delivery of an in-
terstate shipment to the consignee is so
embraced by Act June 29, amendatory
of Act Feb. 4, 1887, § 1, as to invalidate,
when applied to interstate shipments,
provisions of Demurrage Law of Arkan-
sas April 19, 1907 (Laws 1907, p. 457), §
3, exacting per diem penalty from ear-
lier failing to notify consignee of arrival
of shipment. St. Louis, etc., R. Co. v.
Edwards, 227 U. S. 265, 33 S. Ct. 262,
reversing judgment, 94 Ark. 394, 127 S.
W. 713.

Laws 1906, No. 122, §§ 8, 10 (P. S.
4539, 4541), and Laws 1910, No. 147, §
1, forbidding any railroad to charge de-
murrage on cars received or placed for
loading in this state until four days, after
notice to the consignee, without limiting
such charges to intrastate commerce, held
repugnant to the commerce clause of the
constitution of the United vStates, art. 1,
§ 8, and to the Interstate Commerce Act,
§§ 1, 6, 12, as amended June 29, 1906, en-
forced by the interstate commerce com-
mission by demurrage rules allowing a
free time of only two days. Sargent v.
Rutland R. Co., 86 Vt. 328, 85 Atl. 654.



CARRIERS. 3502

commerce and covering storage charges, and also as an interference with inter-
state commerce imposing an unreasonable burden upon it.''"*

§ 3881. Reg-ulations to Prevent Injuries to Passengers. — Safety and
comfort of passengers, whether intrastate or interstate, may be provided for by
state authority when not in conflict with regulations of congress, and may not
be subordinated to freight traffic. ^•'^ As it is competent for the state to administer
justice according to its own laws for wrongs done and injuries suiTered, when
committed and inflicted by carriers while engaged in the business of interstate
or foreign commerce, notwithstanding the power over those subjects conferred
upon congress by the constitution, there is nothing to forbid the state, in the
further exercise of the same jurisdiction, to prescribe the precaution and safe-
guards foreseen to be necessary and proper to prevent by anticipation those
wrongs and injuries which, after they have been inflicted, the state has power
to redress and punish.-'" As the state has power to secure to passengers con-
veyed by common carriers in their vehicles of transportation a right of action
for the recovery of damages occasioned by the negligence of the carrier, in not
providing safe and suitable vehicles, or employees, of sufficient skill and knowl-
edge, or in not properly conducting and managing the act of transportation, the
state may also impose, on behalf of the public, as additional means of prevention,
penalties for the nonobservance of these precautions. It may define and declare
what particular things shall be done and observed by such a carrier in order
to insure the safety of the persons and things he carriers, or of the persons and
property of others liable to be aiTected by them.-'" It is the state law which de-
fines who are or may be common carriers, and prescribes the means they shall
adopt for the safety of that which is committed to their charge, and the rules ac-
cording to which, under varying conditions, their conduct shall be measured and
judged; which declares that the common carrier owes the duty of care, and what
shall constitute that negligence for which he shall be responsible.-*'^ The rules
prescribed for the construction of railroads, and for their management and opera-
tion, designed to protect person and property, otherwise endangered by their use,
are strictly within the scope of the local law. They are not, in themselves, regu-
lations of interstate commerce, although they control in some degree, the conduct
and the liability of those engaged in such commerce. So long as congress has
not legislated upon the particular subject, they are rather to be regarded as legis-
lation in aid of such commerce, and a rightful exercise of the police power of the
state to regulate the relative rights and duties of all persons and corporations
within its limits.'-'-'

Where Interstate Commerce Incidentally Affected. — The state may en-
force regulations to be observed by a railroad common carrier in intrastate trans-
portation for the safety and convenience of the public who are affected by the

94. Storage charges. — St. Louis, etc., 96. Smith v. Alabama, 124 U. S. 465,.
R. Co. V. State, 26 Okla. 62, 107 Pac. 929, 31 L. Ed. 508, 8 S. Ct. 564; Nashville,
30 L. R. A., N. S., 137. etc., R. Co. v. Alabama, 128 U. S. 96, 32

An order of the corporation commis- L. Ed. 352, 9 S. Ct. 28; Chicago, etc., R.

sion that ten days' free storage shall be Co. v. Solan, 169 U. S. 133, 42 L. Ed.

allowed on less than carload shipments 688, 18 S. Ct. 289.

to consignees five miles or more from 97. Smith v. Alabama, 124 U. S. 465,

the railroad station, in so far as it ap- 31 L. Ed. 508, 8 S. Ct. 564; Nashville,

plies to interstate commerce held void as etc., R. Co. v. Alabama, 128 U. S. 96,

in conflict with Act Cong. June 29, 1906, 32 L. Ed. 352, 9 S. Ct. 28.
c. 3591, §§ 1, 2, 34 Stat. 584 (U. S. Comp. 98. Smith v. Alabama, 124 U. S. 465, 31

St. Supp. 1909, p. 1149), to regulate com- L. Ed. 508, 8 S. Ct. 564.
merce. Atchison, etc., R. Co. v. State, 31 99. Chicago, etc., R. Co. v. Solan, 169-

Okla. 767. 123 Pac. 1065. U. S. 133, 42 L. Ed. 688, 18 S. Ct. 289;

95. Regulations to prevent injuries to Lake Shore, etc., R. Co. v. Ohio, 173 U.
passengers.— Railroad Comm'rs v. Lou- S. 285, 43 L. Ed. 702, 19 S. Ct. 465; Penn-
isvillc, etc.. R. Co., 63 Fla. 274, 57 So. sylvania R. Co. v. Hughes, 191 U. S-
673. 477, 48 L. Ed. 268, 24 S. Ct. 132.



3503



REGULATION AND CONTROL.



§ 3881



regulation even though interstate commerce is thereby indirectly and incidentally
affected, without violating the interstate commerce clause of the federal con-
stitution, where such regulations are in aid of, or do not in fact impose sub-
stantial burdens upon, lawful interstate commerce, or do not conflict with regu-
lations of the subject that are legally prescribed or authorized by congress. ^

Under Act of Congress Providing for Continuous Carriage. — Rev. St.,
§ 525S, authorizing all steam railroad companies in the United States to carry
freight, passengers, etc., from one state to another, and to connect with other
roads so as to form continuous lines of transportation, does not in any wise in-
terfere with the enactment of laws by the states to promote the safety of pas-
sengers, while traveling, within their respective limits, from one state to another,
in cars propelled by steam. ^'

Regulations with Regard to Speed of Trains and Other Precautions. —
It is within the undoubted province of the state legislature to make regulations
with regard to the rate of speed of railroad trains at stations, and in the neighbor-
hood of and through cities and towns,^ with regard to the precautions to be
taken in the approach of trains to bridges, crossings, tunnels, deep cuts and
sharp curves;'* the placing of watchmen and signals at points of special danger;^
fencing; of tracks ; ■' the attaching of bells and whistles to engines and the



1. Where interstate commerce inci-
dentally affected. — Railroad Comm'rs v.
Louisville, etc., R. Co., 63 Fla. 315, 57 So.
175.

2. Under act of congress providing for
continuous carriage. — New York, etc., R.
Co. V. New York, 165 U. S. 628, 41 L.
Ed. 853, 17 S. Ct. 418.

3. Regulating speed of trains. —
Crutcher v. Kentucky, 141 U. S. 47, 35
L. Ed. 649, 11 S. Ct. 851; Smith v. Ala-
bama, 124 U. S. 465, 31 L. Ed. 508, 8 S.
Ct. 564; Gladson v. Minnesota, 166 U. S.
427, 41 L. Ed. 1064, 17 S. Ct. 627; Cleve-
land, etc., R. Co. V. Illinois, 177 U. S.
514, 44 L. Ed. 868, 20 S. Ct. 722; Hous-
ton, etc.. R. Co. V. Mayes, 201 U. S. 321,
50 L. Ed. 772, 26 S. Ct. 491; Railroad
Comm. Cases. 116 U. S. 307, 29 L. Ed.
636, 6 S. Ct. 334. 1191.

A city, when authorized by the legis-
lature, may regulate the speed of railroad
trains within the city limits. Such act is,
even as to interstate trains, one only in-
directly affecting interstate commerce,
and is within the power of the state un-
til at least congress shall take action in
the matter. Erb v. Morasch, 177 U. S.
584, 44 L. Ed. 897, 20 S. Ct. 819; Rail-
road Co. V. Richmond, 96 U. S. 521, 24
L. Ed. 734; Cleveland, etc., R. Co. v.
Illinois, 177 U. S. 514, 44 L. Ed. 868, 20
S. Ct. 722.

Regulations with regard to speed of
trains and other precautions. — A state
may regulate, at least, in the absence of
congressional action upon the same sub-
ject matter, the manner in which inter-
state trains shall approach dangerous
crossings, the signals which sliall be
given, and the control of the trains which
shall be required mider such circum-
stances. Southern R. Co. v. King, 217
U. S. 524, 54 L. Ed. 868. 30 S. Ct. 594,
affirming judgment, 160 Fed. 332, 87 C.
C. A. 284.



Equipment of trains — Number required
in train crew, etc. — Congress, in its dis-
cretion, may take entire charge of the
whole subject of the equipment of inter-
state cars, and establish such regulations
as are necessary and proper for the pro-
tection of those engaged in interstate
commerce. But it has not done so in
respect to the number of employees to
whom may be committed the actual man-
agement of interstate trains of any kind.
It has not established any regulations on
that subject, and until it does, the statutes
of the state, not in their nature arbitrary,
and which really relate to the rights and
duties of all within the jurisdiction, must
control. Chicago, etc., R. Co. v. Arkan-
sas, 219 U. S. 453, 55 L. Ed. 290, 31 S.
Ct. 275.

Prescribing a minimum of three brake-
men for freight trains of more than
twenty-five cars, operated in the state, as
is done by Laws Ark. 1907, No. 116, does
not amount to an unconstitutional regu-
lation of interstate commerce when ap-
plied to a foreign company engaged in
such commerce. Chicago, etc., R. Co. v.
Arkansas, 219 U. S. 453. 55 L. Ed. 290, 31
S. Ct. 275, affirming Chicago, etc., R. Co.
V. State, 86 Ark. 412, 111 S. W. 456.

4. Precautions in approach to bridges,
etc. — Crutcher v. Kentucky, 141 U. S. 47,
35 L. Ed. 649, 11 S. Ct. 851; Cleveland,
etc., R. Co. V. Illinois. 177 U. S. 514, 44
L. Ed. 868, 20 S. Ct. 722; Railroad Comm.
Cases, 116 U. S. 307, 29 L. Ed. 636, 6
S. Ct. 334, 1191.

5. Watchmen and signals. — Smith v.
Alabama, 121 U. S. 465, 31 L. Ed. 508,
8 S. Ct. 564.

6. Fencing of tracks. — Cleveland, etc.,
R. Co. V. Illinois, 177 U. S. 514, 44 L.
Ed. 868, 20 S. Ct. 722; Railroad Comm.
Cases, 116 U. S. 307, 29 L. Ed. 636, 6
S. Ct. 334, 1191.



3881



CARRIERS.



3504



carriage of signal lights at night; ' the length and frequency of stops; '^ heating,
lighting and ventilation of passenger cars ; >' the furnishing of food and water to
cattle and other live stock, i"* and, generally, with regard to all operations in
which the lives and health of peo])le may be endangered, even though such regu-
lations affect to some extent the operations of interstate commerce. Such regu-
lations are strictly within the police power of the state and eminently local
in their character, and, in the absence of congressional regulations over the
same subject, are free from all constitutional objections, and unquestionably
valid.ii

Examination of Employees. — Accordingly a state statute prescribing as a
rule of civil conduct, that engineers on railroad trains engaged in the transporta-
tion of passengers and freight shall undergo an examination by a state board
as to their qualifications and obtain a license, before becoming entitled to operate
locomotive engines within the state, is not, when applied to engineers on inter-
state trains, unconstitutional and void as a regulation of commerce among the
states but is a police regulation governing the relation between carrier of pas-
sengers and merchandise and the public who employ them, valid until displaced
by congressional legislation on the subject.^-

Examination of Employees as to Power of Vision. — So, also, a state
statute prohibiting under penalties the employment of persons in certain spec-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 76 of 214)