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tracks intersect streets is not invalid as an interference with interstate com-
merce. '^^

90. Liability for delay. — Traynhani v. to enable the state to apportion ex-
Charleston, etc., R. Co. (S. C), 71 S. E. penses between freight and passenger traf-
813. fie and interstate and intrastate com-

The rule of the railroad commissioners nierce, so as to afford a basis for the es-

making a carrier liable to a shipper in tablishment of intrastate rates. Railroad

the sum of $1 for each day a headed car Comm. v. Texas, etc., R. Co. (Tex. Civ.

is detained has no application to inter- App.), 140 S. W. 829.

state commerce, and can not legally be 92. Reports. — People v. Chicago, etc.,

so applied as to directly and materially R. Co., 223 111. 581, 79 N. E. 144, 7 Am.

burden it. State v. Atlantic, etc., R. Co., & Eng. Ann. Cas. 1.

56 Fla. 617, 47 So. 969, 32 L. R. A., N. 93. As to crossings. — Willfong v.

S., 639. Omaha, etc., R. Co., 116 Iowa 548, 90

91. System of bookkeeping. — Railroad N. W. 358.

Comm. V. Texas, etc., R. Co. (Tex. Civ. A state may regulate, at least, in the
App.), 140 S. W. 829. absence of congressional action upon the
Act Feb. 25, 1909, c. 193, 35 Stat. 648 same subject-matter, the manner in which
(U. S. Comp. St. Supp. 1909, p. 1165), de- interstate trains shall approach dangerous
daring that it shall be unlawful for car- crossings, the signals which shall be
riers engaged in interstate commerce to required under such circumstances. South-
keep any other accounts, records, or ern R. Co. v. King, 217 U. S. 524, 54 L.
memoranda than those prescribed by the Ed. 868, 30 S. Ct. 594, affirming judgment*
interstate commerce commission does not 87 C. C. A. 284, 160 Fed. 332.
prevent the states from prescribing addi- 94. Electric lights. — Pittsburgh, etc., R.
tions to the system specified by the in- Co. v. Hartford City, 170 Ind. 674, 82 N.
terstate commerce commission to supply E. 787, 85 N. E. 362, 20 L. R. A., N. S.,
deficiencies therein in so far as necessary 461.



3525 REGULATION AND CONTROL. §§ 3904-3907

Checking- Speed. — A state law requiring locomotive engines to simultaneously
check and keep the speed of their trains so as to stop in time should any person
or thing be crossing the track on said road at a public road crossing, was not in-
valid in so far as it applied to trains engaged in interstate commerce, as an in-
valid regulation thereof by the street, but was within the state's police power to
provide regulations for public safety.^^

§ 3905. As to Liability of Officers and Agents.— A state law which in
substance provides that any person and any officer or agent of any corporation or
company who shall deliver property for transportation to any common carrier and
shall knowingly and willfully, by false billing, false representation of the con-
tents of the shipment, or false report or weight, obtain transportation for such
property at less than the regular rates, shall be deemed guilty of fraud and
subject to a fine, is not unconstitutional because in conflict with the Interstate
Commerce Act.^*^

§ 3906. Street and Electric Railways. — A city ordinance permitting a
street railroad company engaged in interstate commerce under franchises granted
by the city to make discrimination in rates in favor of residents of the city
against residents of another state is unconstitutional, because it conflicts with the
interstate commerce clause of the federal constitution.'''^ Regulation by a mu-
nicipality of a street railway operated by a state corporation and which carried
passengers only to the state line where they were delivered to a foreign corpora-
tion, is ijot an interference with interstate commerce.^^ In granting the right to
appropriate waters of a running stream for power purposes, a limitation pre-
venting the transmission or use of the power beyond the confines of the state does
not violate the federal constitution as interfering with interstate commerce. '^'^

§ 3907. Express Companies. — As it is the general duty of a carrier by
express to deliver parcels received by it to the consignee at his residence or place
of business, a statute of a state requiring express companies to deliver express
matters "to persons to whom the same is directed" within the limits of cities hav-
ing a specified population, merely requires the carrier, under compulsion of a
penalty, to observe its general duty, and is not invalid as an attempt to regulate
interstate commerce.^

95. Checking speed. — Southern R. Co. weight, * * * obtain transportation
V. King, 87 C. C. A. 284, 160 Fed. 332. for such property at less than the regu-

Civ. Code 1895, § 2222, requiring an en- lar rates then established, * * * shall
gineer to check the speed of his locomo- be deemed guilty of fraud, * * * ^nd
tive on approaching a public crossing so shall, upon conviction, * * * be sub-
as to stop in time should any person be ject for each offense to a fine. * * *"
crossing, is not, as to a railroad com- Va. Code 1904, § 1294c, cl. 10, is practi-
pany doing an interstate business, vio- cally identical with the above, except that
lative of the constitution of the United the punishment prescribed by it is less
States, art. 1, § 8, as being a regulation severe than that imposed by the federal
of interstate commerce, but is a valid ex- statute. Held, that the state law is not
ercise of the police power of the state. unconstitutional, as in conflict with the
Southern R. Co. v. Grizzle, 131 Ga. 287, provisions of the federal law. Adams
62 S. E. 177. Tixp. Co. V. Charlottesville Woolen Mills,

96. As to liability of officers and 109 Va. 1, 63 S. E. 8.

agents. — -Interstate Commerce Acts Feb. 97. Street and electric railways. — State

4, 3 887, c. 104, § 10, 24 Stat. 382, amended v. Omaha, etc., Bridge Co., 113 Iowa 30,

by Act March 2, 1889, c. 382, § 2, 25 Stat. 84 N. W. 983, 52 L. R. A. 315, 86 Am.

8r,7 (U. S. Comp. St. 1901, 1, p. 3160), St. Rep. 357.

provides that "any person and any ofifi- 98. South Covington, etc., R. Co. v.

cer or agent of any corporation or com- Covington, 146 Ky. 592, ]43 S. W. 28.

pany who shall deliver property for trans- 99. Kirk v. State Board, 90 Neb. ('>27,

portation to any common carrier, * * * \;>,\ N. W. 167.

and shall knowingly and willfully, by false 1. Express companies. — Burns' Ann. St.

billing, false representation of the con- 1901, § 3;', 12a; Lhiitcd States Exp. Co. v.

tents of tlie package, or false report or State, 161 Ind. 196, 73 N. IC. 101.



§§ 3907-3908 carriers. 3526

Discriminations. — A state statute prohibiting unjust discrimination by any
express company against any other company engaged in the same business, and
prescribing a penalty for its violation, recoverable by the state, is not invalid as
an interference with interstate commerce.^ A state law provides that express
companies shall grant to all consignors, including other responsible express com-
panies as consignors, equal terms and accommodations in the carriage and con-
tinuance of carriage of goods, and prohibits them from granting to any one car-
rier any privileges or accommodations not granted to all others, and provides
that any carrier failing to comply with the statute may be convicted in a prosecu-
tion brought by the state, that it shall be liable in a civil action for damages, and
that any person injured by such violation shall have a remedy by injunction.
The statute is not an attempt to regulate interstate commerce. ^

Delivery of Goods. — The Act of 1901 of Alabama imposing a penalty on an
express company refusing to deliver express matter, is not merely in aid of the
common law refjuiring carriers of goods to make personal delivery and if the act
were so construed as applied to interstate shipments, it would be a regulation
of interstate commerce and in contiict with the power of regulation reposed in
the interstate commerce commission.^

Regulation of Use of Streets. — That the delivery wagons of express com-
panies operating in New York and using the public streets were engaged in in-
terstate commerce did not make them immune from the operation of general or-
dinances adopted under greater New York charter granting to the board of al-
dermen power to regulate the use of the streets for animals, vehicles, etc., and to
make all such regulations with reference to the running of stages, trucks, and
cars as might be necessary for the convenient use and accommodation of the
streets, etc'^

Between Intrastate Points. — Carriage of shipments by an express com-
pany from one point in the state to another point in the state does not constitute
interstate commerce, even where the shipments are forwarded over a line of rail-
road that for a part of its route lies outside the state.^

Requiring Bond of Express Drivers. — Code of ordinances of New York,
requiring a bond of express drivers for each licensed vehicle, conditioned for the
safe and prompt delivery of all packages, parcels, and other articles, was a le-
gitimate exercise of the city's police power and applicable to wagons of express
companies engaged in interstate commerce.''

§ 3908. Sleeping Cars. — A state law applicable only to intrastate com-

2. Discriminations.— Acts 1901, p. 149 (Act Feb. 4. 1887, c. 104, § 6, 24 Stat. 380
(Burns' Rev. St. 1901, § 3312b et seq.) ; [U. S. Comp. St. 1901, p. 3156]), as
Adams Exp. Co. v. State, 161 Ind. 328, amended by the Railroad Act (Act June
G7 N. E. 1033. 29, 1906, c. 3591, § 2, 34 Stat. 586 [U. S.

3. Acts 1901, p. 149, c. 93 (Burns' Ann. Comp. St. Supp. 1907, p. 899]), forbidding
St. 1901, §§ 3312b, 3312e); American Exp. carriers to give any unreasonable prefer-
Co. V. Southern Indiana Exp. Co., 167 ence or advantage to any shipper or lo-
Ind. 292, 78 N. E. 1021; American Exp. cality, since any state statute which im-
Co. V. State, 167 Ind. 707, 79 N. E. 353. poses a local burden of transportation

4. Delivery of goods. — Rehearing, 85 N. which in its operation would require the
E. 337, denied in State v. Railroad Comm., carrier to adjust his interstate rate with
171 Ind. 138, 85 N. E. 966, 19 L. R. A., reference thereto amounts to an at-
N. S., 93. tempted regulation of interstate corn-
Acts 1901, p. 97, c. 62 (Burns' Ann. St. merce, and is void as to such transactions.

1901, § 3312a), imposing a penalty on an Rehearing, 85 N. E. 337, denied in State

express company refusing to deliver ex- v. Railroad Comm., 171 Ind. 138, 85 N. E.

press matter, is not merely in aid of the 966, 19 L. R. A., N. S., 93.

common law requiring carriers of goods 5. Regulation of use of streets. — Barrett

to make personal delivery, and, if the act v. New York, 183 Fed. 793.

were so construed, the fact that the ex- 6. Between intrastate points. — State v.

press companies might cast upon inter- United States Exp. Co., 114 Minn. 346,

state traffic the expense of burdensome 131 N. W. 489, 37 L. R. A., N. S., 1127.

free deliveries would operate to suspend 7. Requiring bond of express drivers. —

it in view of the Interstate Commerce Act Barrett v. New York, 189 Fed. 268.



Zi27



REGULATION AND CONTROL.



§§ 3008-3909



merce, requiring the upper berth in a sleeping car to be kept closed till engaged
or occupied, when the lower berth is engaged and occupied, is not an interfer-
ence with interstate commerce carried on in cars doing both intrastate and inter-
tate business.^ Notwithstanding the regulation by the interstate commerce com-
mission of the rates for sleeping car berths in interstate traffic, Laws 1911, c.
172, applicable only to intrastate commerce, recjuiring the upper berth in a sleep-
ing car to be kept closed till engaged or occupied, when the lower berth is en-
gaged or occupied, does not conflict with the Interstate Commerce Act.'-^

§ 3909. Warehouses and Elevators. — Where grain warehouses and ele-
vators are situated and their business is carried on exclusively within a state,
the state may, as a matter of domestic concern, prescribe regulations for them,
notwithstanding they are used as instruments by those engaged in interstate, as
well as intrastate, commerce ; and, until congress acts in reference to their inter-
state relations, such regulations can be enforced, even though they indirectly
operate upon commerce beyond the immediate jurisdiction of the state. ^*^ The



8. Sleeping cars. — State v. Chicago, etc.,
R. Co., 152 Wis. 341, 140 N. W. 70.

9. State V. Chicago, etc., R. Co., 152
Wis. 341, 140 N. W. 70.

10. Regialation of warehouses and ele-
vators — In general. — Munn v. Illinois, 94
U. S. 113, 24 L. Ed. 77: Budd v. New
York, 143 U. S. 517, 36 L. Ed. 247. 12 S.
Ct. 468; Brass v. Stoeser, 153 U. S. 391,
38 L. Ed. 757, 14 S. Ct. 857; Cargill Co.
V. Minnesota, 180 U. S. 452, 45 L. Ed.
619, 21 S. Ct. 423. See, also, Covington,
etc.. Bridge Co. v. Kentucky, 154 U. S.
204, 38 L. Ed. 962, 14 S. Ct. 1087; Wa-
bash, etc., R. Co. V. Illinois, 118 U. S. 557,
30 L. Ed. 244, 7 S. Ct. 4.

Particular regulations. — The statute of
Minnesota (Gen. Laws of Minn. 1895, ch.
148, §§ 1, 2) requiring a license, and the
payment of a fee therefor, for the privi-
lege of engaging in the business of re-
ceiving, storing and shipping grain at
pul^lic elevators and warehouses in the
state, is not a regulation of interstate
commerce in violation of the constitution,
from the fact that grain so received or
stored is to be shipped out of the state.
Cargill Co. v. Minnesota, 180 U. S. 452,
45 L. Ed. 619, 21 S. Ct. 423.

Statute of Illinois. — A state can, under
the limitations upon the legislative power
of the states imposed by the constitution
of the United States, fix by law the maxi-
mum of charges of public elevators and
warehouses used for the reception, stor-
age and delivery of grain, and the statute
of Illinois of April 25, 1871. regulating
public warehouses and the warehousing
and inspection of grain, and giving efifect
to article 13 of the constitution of the
state, which provides that those who con-
duct such public warehouses and eleva-
tors located in cities containing not less
than one Innulred thousand inhabitants
shall procure licenses and shall give l)ond
confb'tioncfl for compliance with tlie law,
and which prescribes maximum rates of
charges for storing and handling grain,
and declares certain penalties for the fail-



ure to procure licenses, is not repugnant
to the provision of the constitution of
the United States which confers upon
congress the power to regulate commerce
with foreign nations and among the sev-
eral states. Munn v. Illinois, 94 U. S.
113, 24 L. Ed. 77, followed in Budd v.
New York, 143 U. S. 517, 36 L. Ed. 247;
12 S. Ct. 468; Brass v. Stoeser, 153 U. S.
391, 38 L. Ed. 757, 14 S. Ct. 857.

The question of the power of the states
to lay down a scale of charges, as dis-
tinguished from their power to impose
taxes, was first squarely presented to the
court in Munn v. Illinois, 94 U. S. 113,
24 L. Ed. 77, in which a power was con-
ceded to the state to prescribe regula-
tions and fix the charges of elevators used
for the reception, storage, and delivery of
grain, notwithstanding such elevators
were used for the storage of grain des-
tined for other states. Covington, etc.,
Bridge Co. v. Kentucky, 154 U. S. 204, 38
L. Ed. 962, 14 S. Ct. 1087.

The statute of New York of June 9,
1888, ch. 581, regulating the fees and
charges for elevating, trimming, receiving,
weighing, and discharging grain by means
of floating and stationary elevators and
warehouses in this state, whereby maxi-
mum charges were fixed for elevating, re-
ceiving, weighing, and discharging grain,
when the business was carried on in a
city containing 130,000 inhabitants or up-
wards imposing penalties for disregard of
the provisions of the statute, is not in-
valid as a regulation of interstate com-
merce. The court said: "So far as the
statute in question is a regulation of com-
merce, it is a regulation of commerce
only on the waters of the state, of New
York. It operates only within the limits
of that state, and is no more obnoxious
as a regulation of interstate commerce
than was the statute of Illinois in respect
to warehouses, in Munn %'. Illinois. It is
of the same character with navigation
laws in respect to navigation within the
state, and laws regulating wharfage rates



§§ 3909-3911 CARRIERS. 3528

authority to make such requirements and regulations is to be referred to the gen-
eral power of the state to adopt such regulations as are appropriate to protect the
people in the enjoyment of their relative rights and privileges, and to guard them
against fraud and imposition. It is a proper exercise of the police power of the
state."

Allowance to Shipper for Elevation of Grain. — The allowance by railroad
companies of certain charges as elevator charges to terminal elevators on ship-
ments of grain from points in the state to points without the state is an incident
of interstate commerce, and the state supreme court has no jurisdiction to limit
or control the same.^^

§ 3910. Packing Houses. — An ordinance creating a packing house in-
spector, whose duty it is to inspect all meats shipped into the city or brought from
outside the county, and requiring him to visit all packing houses daily and places
of importers of meat stufif, and secure their bills of lading to determine whether
the shimpents have been made in proper time, and whether cars containing such
meat have been properly iced during transit, and imposing upon the importers
an inspection charge, while it imposes no such charge on others engaged in like
business, is invalid as an unlawful interference with interstate commerce. ^^

§ 3911. Wharves. — The regulation of wharves belongs prima facie, and in
the first instance, to the state in which they are situated, subject to the power of
congress to assume control when the power of the states is exercised in a man-
ner incompatible with the interests of commerce. i'*

Regulation of Places for Landing. — A municipal ordinance prescribing
places for the landing of difiierent classes of vessels, and placing the matter un-
der the control of a wharfmaster or other officer, whose duty it shall be to look
after it, if a regulation of commerce at all, comes within that class in which the
states may prescribe rules until congress assumes to do so.^°

Wharfage. — A municipal corporation, owning improved wharves, piers, and
other artificial means which it maintains, at its own cost, for, the benefit of those
engaged in commerce upon the public navigable waters of the United States, is
not prohibited by the commerce clause of the constitution of the United States

within the state, and other kindred laws." U. S. .391, 38 L. Ed. 757, 14 S. Ct. 857.
Budd V. New York, 143 U. S. 517, 36 L. n. Source of authority.— Cargill Co. v.
Ed 247, 12 S. Ct. 468. Minnesota, 180 U. S. 452, 45 L. Ed. 619,
The statute of North Dakota regulat- oi S. Ct. 423; Budd v. New York, 143 U.
ing grain wareliouses and the weighing 5 5^7^ 35 ^ Ed. 247, 12 S. Ct. 468.
and handling of grain, providing that all ,„ ah j. \.- r i i-
elevators, warehouses, etc., in the state, ^/tV.tn cf"f^ *° A ^^?^' ^?'" ^^^^^*^°"
erected and operated for the purpose of °l fr T "? Ha M xTlL Elevator Co.,
storing, handling, etc., grain fox profit '^ ^^'^^ ^^'' "^ N. W. 874.
shall be deemed public warehouses, and P- Packing houses.— Armour & Co. v.
providing that the person operating such ^'ty Council. 134 Ga. 178, 67 S. E. 417,
pul:)lic warehouse or elevator shall fine a 2( L. R. A., N. S., 676.
bond with good and sufficient securities, 14. Of the general power of the state to
conditioned for the faithful performance regulate wharves. — Cannon v. New Or-
of duty as public warehousemen, and pro- leans (U. S.), 20 Wall. 577, 22 L. Ed. 417;
viding a maximum schedule rate of Packet Co. v. St. Louis, 100 U. S. 423, 25
charges for storing and handling of grain, L. Ed. 688; Transportation Co. v. Park-
and providing that the grain shall be kept ersburg, 107 U. S. 691, 27 L. Ed. 584, 2 S.
insured at the expense of the warehouse- Ct. 732. See, also, Morgan's, etc.. Steam-
men for the benefit of the owner, is sub- ship Co. v. Louisiana Board, 118 U. S.
stantially similar to the statutes of the 455, 30 L. Ed. 237, 6 S. Ct. 1114; Huse v.
state of Illinois and New York regulat- Glover, 119 U. S. 543, 30 L. Ed. 487, 7 S.
ing the affairs of grain warehouses and Ct. 313; Ouachita Packet Co. v. Aiken,
elevators within those states, and is not 121 U. S. 444, 30 L. Ed. 976, 7 S. Ct. 907;
repugnant to the clause of the constitu- Lindsgy, etc., Co. v. Mullen, 176 U. S. 126,
tion of the LInited States, which confers 44 L. Ed. 400, 20 S. Ct. 325.
upon congress power to regulate com- 15. Regulation of places for landing. —
merce with foreign nations and among Packet Co. v. Catlettsburg, 105 U. S. 559,
the several states. Brass v. Stoeser, 153 26 L. Ed. 1169.



3529 REGULATION AND CONTROL. § 3911

from charging and collecting from parties using its wharves and facilities such
reasonable fees as will fairly remunerate it for the use of the property. ^'^

Reasonableness as Affected by the Existence of a Surplus and the Dis-
position of the Same. — Since a wharf is property, and wharfage is a charge or
rent for its temporary use, the question whether the owner derives more or less
revenue from it, or whether more or less than the cost of building and maintain-
ing it, or what disposition he makes of such revenue, can in no way concern those
who make use of the wharf and are required to pay the regular charge therefor,
provided, always, that the charges are reasonable and not exorbitant. ^'^

Rule as to Reasonableness Not Applicable to Private Wharves. — It is
undoubtedly a general rule of law, in reference to all public wharves, that wharf-
age must be reasonable, but a private wharf, that is, a wharf which the owner has
construed and reserves for his private use, is not subject to this rule; for, if any
other person wishes to make use of it for a temporary purpose, the parties are
at liberty to make their own bargain. That such wharves may be had and
owned, even on a navigable river, is not open to controversy. ^'^

State Must Not Discriminate against Interstate Commerce in the
Matter of Charges. — Wharfage fees must be exacted equally from all those
who use the improved wharves, and a municipality can not, by exacting discrimi-
natory fees, employ the property it thus holds for public use so as to hinder, ob-
struct, or burden interstate commerce in the interest of the wholly internal com-
merce of the state. Therefore an ordinance whereunder vessels laden with the
products of other states are required to pay for the use of the public wharves of
a city, fees which are not exacted from vessels landing thereat with the products
of the state, is a regulation of interstate commerce in conflict with the power of
congress over that subject.^''

Wharfage Distinguished from Tonnage Duties. — There is a well-recog-
nized distinction between tonnage duties, which the states are prohibited from
levying without the consent of congress, and wharfage dues, properly so called,
imposed in good faith and to the extent only of fair remuneration for wharf ac-
commodations furnished for the convenience of trade and commerce. A duty of

IG. Wharfage; Power of state or city L. Ed. 237, 6 S. Ct. 1114; Ouachita Packet

to exact.— Cannon v. New Orleans (U. S.), Co. v. Aiken, 121 U. S. 444, 30 L. Ed. 976,

20 Wall. 577, 22 L. Ed. 417; Packet Co. v. 7 S. Ct. 907.

Keokuk. 95 U. S. 80, 24 L. Ed. 877; Packet 18. Private wharves not within rule as

Co. V. St. Louis, 100 U. S. 423, 25 L. Ed. to reasonableness. — Transportation Co. v.

688; Vicksburg v. Tobin. 100 U. S. 430, Parkersburg, 107 U. S. 691, 27 L. Ed. 584,

25 L. Ed. 690; Guy v. Baltimore, 100 U. 2 S. Ct. 732, citing Button v. Strong (U.

S. 434, 25 L. Ed. 743; Packet Co. v. Cat- S.). 1 Black 23, 17 L. Ed. 29; Yates v.

lettsburg, 105 U. S. 559, 26 L. Ed. 1169; Milwaukee (U. S.), 10 Wall. 497, 19 L.

Transportation Co. v. • Parkersburg, 107 Ed. 984.

U. S. 691, 27 L. Ed. 584, 2 S. Ct. 732. See, 19. Discriminatory fees.— Guy v. Balti-
also. Morgan's, etc.. Steamship Co. v. more, 100 U. S. 434, 25 L. Ed. 743; Ma-
Louisiana Board, 118 U. S. 455, 30 L. Ed. chine Co. v. Gage, 100 U. S. 676, 25 L.
237, 6 S. Ct. 1114; Huse v. Glover, 119 U. Ed. 754. See, also, Minnesota v. Bar-
S. 543, 30 L. Ed. 487, 7 S. Ct. 313; her, 136 U. S. 313, 34 L. Ed. 455, 10 S.
Ouachita Packet Co. v. Aiken, 121 U. S. Ct. 862.



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