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several states. Southern Exp. Co. v.
Goldberg, 44 S. E. 8^)3, 101 Va. 619, 62
L. R. A. 669.

§§ 3918-3921 CARRIERS. 3540

the points within the state, especially in view of the provision of the federal In-
terstate Commerce Act, making it unlawful for any carrier to prevent by carriage
in different cars or by other means, the carriage of freights from being contin-
uous, unless the interruption was for some necessary purpose and not intended
to evade the provisions of the act.^^

§ 3919. Discrimination. — Any state statute which in its direct result regu-
lates the interstate transportation of a single individual carrier violates the com-
merce clause of the United States constitution."'^ Compelling a carrier by man-
damus 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 action, although both carriers are engaged in interstate commerce,
and three-fifths of the output of the mill are shipped out of the state.'''"

§ 3920. Bills of Lading. — Transfer of Bills of Lading. — A state statute,
providing that bills of lading may be transferred in writing thereon and the
transferee shall be deemed the owner of the goods specified therein and no goods
shall be delivered except on surrender of bills of lading, and, making a violation
of the precedmg section a criminal offense and authorizing a person aggrieved by
a violation to recover the damages sustained, are not, when applied to interstate
traffic, in conflict with the commerce clause of the federal constitution, and are
valid, in the absence of congressional legislation on the subject; the object of the
statute being to enforce the existing duty of the carrier to deliver property speci-
fied in a bill of lading to the legal holder thereof."^ ^

Statute Making Recitals Conclusive. — A statute, making specifications of
weights in bills of lading issued by railroads conclusive is not unconstitutional,
as assuming to regulate commerce between the states.''' -

False Billing of Goods. — A code provision, punishing the carriage and trans-
portation of liquors under any other name than the proper name, is not in viola-
tion of the interstate commerce law as applied to the carriage and transportation
of liquors, it not applying to liquor transported from another state into the state
for private use.'^^

Conclusiveness of Bill. — A state law providing that every bill of lading ac-
knowledging the receipt of property for transportation shall be conclusive evi-
dence in the hands of a bona fide holder, as against the carrier issuing it, that the
property had been received, is not invalid as a regulation of interstate com-

Uniform Bills of Lading. — Uniform Dills of Lading Act, providing what
effect domestic indorsements shall have on foreign bills of lading, is not an in-
terference with interstate commerce, in violation of the constitution of the United
States, art. 1, § 8."^^

§ 3921. Description of Goods. — ^A statute requiring all veal shipped to
have annexed thereto a tag stating the name of the person who raised the calf,
the name of the shipper, the points of shipping, and the destination and age of

68. Reshipment to point within state. 92 S. W. 522, 113 Am. St. Rep. 100.

— Porter v. St. Louis, etc., R. Co., 78 72. Statute making recitals conclusive.

Ark. 182, 95 S. W. 453. —Missouri, etc., R. Co. v. Simmons, 64

69. Discrimination.— Louisville, etc., R. Kan. 802, 68 Pac. 653, 91 Am. St. Rep.
Co. V. Eubank, 22 S. Ct. 277, 184 U. S. 248, 57 L. R. A. 705.

27, 46 L. Ed. 416. 73. False billing of goods.— State v.

70. Judgment, Larabee Flour Mills Co. Moody, 70 S. C. 56, 49 S. E. 8.

V. Missouri Pac. R. Co., 74 Kan. 808, 88 74. Conclusiveness of bill. — Yazoo, etc.,

Pac. 72, affirmed in 211 U. S. 612. 53 L. R. Co. v. Bent, 94 Miss. 681, 47 So. 805,

Ed. 352, 29 S. Ct. 214. 22 L. R. A., N. S., 821.

71. Bills of lading. — Arkansas, etc., R. 75. Uniform bills of lading. — Baker Co.
Co. V. German Nat. Bank, 77 Ark. 482. v. Brown, 214 Mass. 196, 100 N. E. 1025.

3541 REGULATION AND CONTROL. §§ 3921-3925

the calf, is not violative of the constitution of the United States, conferring on
congress power to regulate commerce among the several states, as the prohibition
against shipping without a tag, though broad enough to apply to veal intended
to be shipped to another state, does not interfere with the regulation of inter-
state commerce. '^*^

§ 3922. Disposal of Freight Refused by Consig-nee. — Congress having
passed no law regulating the disposition of freight shipped from a point without
a state to a consignee within a state, where such consignee declines to receive the
freight, and the shipper refuses to give directions for its disposition or assume
further control over the same, a state statute authorizing a carrier, warehouse-
man, etc., after the expiration of six months to sell the freight on twenty days'
notice after advertising, etc., was not in violation of the commerce clause of the
federal constitution.""

§ 3923. Reshipment of Goods. — The fact that the owner of merchandise
offered a carrier for transportation from one point to another in the same state
intends to have it further transported by a second carrier into another state,
does not make such first transportation interstate commerce rather than intrastate
commerce, even though the first carrier may be informed of the ultimate destina-
tion, so as to deprive such first transportation of the protection of rule 36 of the
railroad commission of Georgia, recjuiring carriers in the conduct of their in-
trastate business to afi:'ord all persons equal facilities without unjust discrim-

§ 3924. Regulation of Relation of Consignor and Consignee. — The In-
terstate Commerce Act in no way attempts to regulate or change the law of
Illinois as to the relation of a consignor and consignee in interstate shipments.
Until congress shall exercise its power in this respect, the law of the state,
whether common or statutory, will govern. It is only a direct regulation of
interstate commerce by the states, not a regulation incidentally alTecting, but not
directly burdening it, that is prohibited even in the absence of congressional

§§ 3925-3937. As to Remedies— § 3925. Prerequisites to Bringing
Suit. — A state law which provides that no foreign corporation doing business in
the state shall maintain an action in any of the courts thereof without filing cer-
tain statements with the secretary of state, does not violate the commerce clause
of the federal constitution, even when applied to corporations engaged solely in
interstate commerce. ^^

76. Description of goods. — Laws 1902, the future disposition of his property by
p. 59, c. 30, § 70f. Judgment, 89 N. Y. shipping it over another line under a
S. 709, 44 Misc. Rep. 12, affirmed in Peo- new bill of lading into another state can
pie V. Bishopp, 94 N. Y. S. 773, 106 App. not change an intrastate shipment to an
Div. 266. interstate shipment so as to deprive it

Laws 1902, p. 59, c. 30, §§ 70e, 70f, re- of the protection of rule 36 of the rail-
quiring carcasses of calves shipped in the road commission of Georgia, requiring
state to be tagged, is not violative of the carriers in the conduct of their intra-
interstate commerce provisions of the state business to afford all persons equal
federal constitution. People v. Bishopp, facilities without unjust discrimination.
89 N. Y. S. 709, 44 Misc. Rep. 12, aftirmed Augusta Brokerage Co. v. Central, etc.,
in 94 N. Y. S. 773, 106 App. Div. 266. R. Co.. 5 Ga. App. 187, 62 S. E. 996.

77. Disposal of freight refused by con- 79. Regulation of relation of consignor
signee. — St. Louis, etc., R. Co. v. Arkan- and consignee. — IMaff v. Pacific l'".xp. Co.,
sas, etc., Grain Co., 42 Tex. Civ. App. ^r,'^ III. Ai)p. 19.'!, judgment alTirmed in
125, 95 vS. W. 656. ',).-) N. Iv U)S9.

78. Reshipment of goods. — Augusta 80. Prerequisites to bringing suit. —
Brokerage Co. t'. Central, etc., R. Co., Deere I'low Co. ?■. Wvland, 76 I'ac. 863,
5 Ga. App. 187, 62 S. E. 996. 69 Kan. 2."')5, 2 .'\m. & ivng. Ann. Cas.

The intention of the consignee as to 304.

§§ 3926-3930 carriers. 3542

§ 3926. Jurisdiction and Venue of Suits. — The Act of March 13, 1905,
of Texas prescribes the parties to, and venue of, suits against railroad corpora-
tions operating within the state, or having an agent or representative therein,
and provides that whenever freight has been transported by two or more such
corporations, or partly by one or more of them, suit for damages or loss, or any
clause of action arising out of such carriage, may be brought against any one or
all of the carriers in any court of competent jurisdiction in any county in which
either operates or does business, or has an agent or representative. Such act
was the proper exercise of the state's police power, and was not invalid as to an
interstate carrier, as imposing burdens on interstate commerce greater than those
imposed on commerce within the state, and as amounting to an infringement on
the power of congress to regulate interstate commerce. ^^ The Act of 1905 of
Texas regulating" the venue of suits against common carriers was a proper exer-
cise of the state's police power, and was not invalid as to interstate carriers, in
that it imposed such burden on interstate commerce as distinguished from com-
merce within the state as amounts to an infringement upon the power of con-
gress to regulate interstate commerce. ^-

§ 3927. Parties to Suits.— The Act of March 13, 1905, of Texas pre-
scribes the parties to, and venue of, suits against railroad corporations operating
within the state, or having an agent or representative therein, and provides that
whenever freight has been transported by two or more such corporations, or
partly by one or more of them, suit for damages or loss, or any cause of action
arising out of such carriage, may be brought against any one or all of the carriers
in any court of competent jurisdiction in any county in which either operates
or does business, or has an agent or representative. Such act was not uncon-
stitutional as a discriminatory burden on interstate commerce. ^^

§ 3928. Summons and Process. — A state law wdiich provides that all
corporations carrying on business in a state shall have one or more known places
of business in the state, and an authorized agent thereat upon whom process can
be served, and making it unlawful for such corporation to carry on any business
in the state without complying with the requirements of the section, and filing a
statement with the secretary of state, etc., is void, in so far as it affects steamship
companies engaged in interstate traffic, because in conflict with the constitution
of the United States providing that congress shall have the exclusive power to
regulate commerce among the several states.^*

§ 3929. Evidence. — A state law giving a right of action for damages to
persons injured by the communication of Texas fever to their cattle, and prescrib-
ing a rule of evidence in certain cases, is not a regulation of interstate commerce,
so a'; to be void under the federal constitution.*"^

§ 3930. Proceeding by Attachment and Garnishment. — ^A railroad car,
loaded v.'ith freight from another state in West Mrginia and to be returned loaded

81. Jurisdiction and venue of suits. — carriers in any court of competent juris-
St. Louis, etc., R. Co. v. Wester (Tex. diction in any county in which either does
Civ. Aop.), 9") S. W. 769. business or has an agent, is not invalid

82. St. Louis, etc., R. Co. v. Boshear as to an interstate carrier as imposing
(Tex. Civ. App.), 108 S. W. 1032, judg- burdens on interstate commerce. Tex-
ment affirmed in 113 S. W. 6. arkana, etc., R. Co. v. Shivel (Tex. Civ.

83. Parties to suits.— St. Louis, etc., R. App.), 114 S. W. 3 9(5.

Co. V. Moon, 47 Tex. Civ. App. 209, 103 84. Summons and process. — Ryman

S. W. 1176. Steaml)oat Line Co. v. Commonwealth,

The Act of March 13, 1905. of Texas, 101 S. W. 403, 30 Ky. L. Rep. 1276, 10

providing that when freight has been L. R. A., N. S., 1187.

transported by two or more railroad cor- 85. Evidence. — Judgment, 44 Pac. 632,

porations operating within the state or 56 Kan. 694, affirmed in Missouri, etc^,

having an agent therein, or partly by one R. Co. v. Haber, 18 S. Ct. 488, 169 U.

or more of them, suit for damages may S. 613, 42 L. Ed. 878.
be brought against any one or all of the




to the former state, can not be levied on under an attachment in West Virginia ;
nor will such railroad company, having such cars in its possession, be liable to
garnishment, by reason of such possession, because of the interstate commerce
clause of the constitution.*'' Where a railroad company of a state received from
a connecting railroad company of another state a railroad car loaded with freight,
consigned from a point in another state to a point in the first-named state, under
a prevailing custom among railroads, and under a contract between the two
roads at interest that, instead of unloading and reloading at the point of inter-
section outside of the first-named state, the domestic company, upon payment
for the use, should have the right to bring the foreign car loaded into the state
and to the point of destination, there to be unloaded and afterwards reloaded
with freight, and then returned, in the direction from which it came, to a point
beyond the limits of the state, such car, while in the state, is not exempt from
attachment sought to be executed by service of summons of garnishment for the
collection of a debt alleged to be due by the owner, upon the ground that the
impounding of the car is such an interference with interstate commerce as to be
violative of the constitution of the United States.*'^

Interstate Commerce Incidentally Affected. — The fact that a creditor of a
foreign railroad, in the prosecution of his rights to collect a debt by attachment,
may, by levy and sale of an empty and idle freight car of the debtor, incidentally
affect future interstate commerce, will not render such proceeding illegal.**'

86. Proceeding by attachment and gar-
nishment. — Wall V. Norfolk, etc., R. Co.,
44 S. E. 294, 52 W. Va. 485, 64 L. R. A.
501, 94 Am. St. Rep. 948.

Cars owned by a steam railroad com-
pany and delivered by it to other com-
panies, loaded with freight, to be used
in the transportation of such freight over
their lines to points of destination in
other states, and then returned within a
reasonable time, either loaded or empty,
to the owner in the state where received,
pursuant to agreements between the com-
panies for the continuous carriage of in-
terstate shipments of freight, as author-
ized by Rev. St., § 5258 [U. S. Comp.
St. 1901, p. 3564], and in conformity to
the policy of the statutes regulating in-
terstate commerce, are, until their return
to the owner, instruments of interstate
commerce, and are not subject to attach-
ment under the laws of a state into which
they may be carried by such other com-
panies. Davis V. Cleveland, etc., R. Co.,
146 Fed. 403.

Pub. St. 1901, c. 220, §§ 1, 2. making all
property liable to be taken in execution,
subject to attachment, and defining ex-
empt property is valid, and an attach-
ment of a freight car of a railroad not
in actual use does not directly affect in-
terstate commerce. De Rochemont v.
New York, etc., Railroad. 75 N. H. 158,
71 Atl. 868, 29 L. R. A., N. S.. 529.

Rev. St. U. S., § 5258 (U. S. Comp. St.
1901, p. 2564), authorizing railroads to
carry freight and property on their way
from any state to another state, and to
connect with roads of other states so as
to form a continuous line for the trans-
portation of the same to the place of des-
tination, gives railroads the right to en-
gage in interstate business, and to be-

come jointly interested with roads in
other states in interstate business origi-
nating on their lines; and a foreign rail-
road contracting with a domestic rail-
road for the through shipment of cars,
stands on the same footing as the do-
mestic railroad, and the statute does not
forbid the attachment of a car of the
foreign railroad when in the state and
not in actual use. De Rochemont v.
New York, etc., Railroad. 75 N. H. 158,
71 Atl. 868, 29 L. R. A., N. S., 529.

The object of Interstate Commerce
Act (Act Feb. 4, 1887, c. 104, 24 Stat.
379 [U. S.Comp. St. 1901, p. 3154] ), for-
bidding railroads from giving preferences
to persons or places, etc., is to compel
railroads to carry for all on equal terms
and for a fair price, without unnecessary
delay, and the act is not in confl'ct with
a state statute permitting the attachment
of freight cars when not in actual use.
De Rochemont v. New York, etc.. Rail-
road, 75 N. H. 158, 71 Atl. 868, 29 L.
R. A., N. S., 529.

Sequestration of a fund due by a resi-
dent carrier, summoned as trustee in gar-
nisheed proceedings, to a foreign corpo-
ration representing its share of propor-
tionate freights for interstate carriage,
only constituted an incidental interfer-
ence with interstate commerce, and was
not objectionable on that ground. Cav-
anaugh v. Chicago, etc., R. Co., 75 N.
H. 243, 72 Atl. 694.

87. Southern Flour, etc., Co. v. North-
ern Pac. R. Co., 127 Ga. 626, 56 S. E.
742, 9 L. R. A., N. S., 853, 9 Am. & Eng.
Ann. Cas. 437.

88. Interstate commerce incidentally
affected. — Southern R. Co. v. Brown, 131
Ga. 245, 62 S. E. 177.

§ 3930 CARRIERS. 3544

Freight money in the hands of a final carrier belonging to a nonresident
initial carrier is a mere debt, with no special character on account of being
earned in interstate commerce, is subject to suit at law by the creditor road, if
not paid, and is liable to garnishment as a simple contract or book indebted-

Where a car of a foreign carrier is on a side track empty after having
come into the state loaded with an interstate shipment, and is there temporarily
in the possession of another carrier, under contract with the foreign carrier to
promptly return it within a reasonable time and to pay per diem demurrage for
delay, and for the purpose of taking back freight, if it is ready for shipment
wdthin a reasonable time, it may not be attached, as this would be an interference
with interstate commerce.'*"

Indebtedness Arising from Interstate Commerce. — The fact that an in-
debtedness due to a nonresident railroad company arose out of the conducting of
interstate commerce does not exempt it from garnishment under a foreign at-

Under Interstate Commerce Act. — The acts of Congress relating to inter-
state commerce were not intended to abrogate the attachment laws of the state,
but within their proper sphere the federal acts are paramount. '^- A sleeping car
company, by furnishing sleeping cars under contract with a railroad company,
to be used by the traveling public, does not acquire the status of a common car-
rier of goods or passengers unless so declared by constitutional or statutory
provision. A sleeping car en route from a point in one state to a point in another
state, wdiile waiting at a junction with its passengers, both interstate and intra-
state, aboard to be picked up by a through train and carried to destination, was
attached under a state writ and detained by the sheriff by force, compelling the
passengers to disembark and accept other accommodations. Under the Interstate
Commerce Act extending the term "common carrier" to include sleeping car
companies, the car, at the time of its attachment, was an instrumentality of in-
terstate commerce and was not subject to attachment under a state writ which
would directly interfere with its operation in such commerce.^^

89. Johnson v. Union Pac. R. Co., 29 L. R. A., N. S., 823, IS Am. & Ens. Ann.
R. I. 80, 69 Atl. 298. Cas. 907.

90. Seibels v. Northern Cent. R. Co., 91, Indebtedness arising from inter-
80 S. C. 133, 61 S. E. 435, 16 L. R. A., state commerce. — Johnson v. Union Pac.
N. S., 1026. _ _ R. Co., 29 R. I. 80, 69 Atl. 298.

Where a car owned by a oreign rail- g^^^ ^^^ ^^ ^ ^^^^j ^^ ^^^^^^

road, and loaded with niterstate freigh ^^^^ ^^^^^ ^^^^^^^^ S y

to be unloaded at its destination within rr-i. -. ., ,■

,1 ^ ^ J ■ ■[ A A ■^\ -^j-^.- 01 freight on interstate shipments may

the state, and again loaded with inter- , ^ vu 1 a ..x * T 1 a

^ ^ r ■ u^ A ^ A ■ r lie garnished under the state laws, de-
state freight and returned in course or •. ^.v, ■ • c ^u ■ ^ ^ ^
■ , . . ■ ■ <-! „ o4- f.. spite the provisions of the interstate com-
interstate commerce, arrives in the state, ^ ^ ^ a t -o c^ s roro /tt c
^ V ^^ u A <- -^ A ^- ,.-^„ merce act and of Rev. St., § 5258 (U. b.
It can not be attached at its destination ^ , o, .-_^ nr^.^ •
If , ■ 1 J 1 ■ -4. u ■ Lomp. bt. 1901, p. 3564), securing con-
before being unloaded, in a suit by a resi- ,. -f^ r . \ ^- V, • r^i
J , • ^ ^1 (^ ■ ;\^^::a ^r.,^ tinuity of transportation. Davis v. Cleve-
dent against the foreign railroad com- ^^^^ ^ ^^^ ^ ^^ ^ g .

pany, it being engaged ,n interstate com- ^^ ' •' g ^•' ■ ^ ' ;

merce. Shore & Bro. v. Baltimore, etc., P „„„ 10 a c r- a V-. AA'

R. Co., 76 S. C. 472, 57 S. E. 526, 11 S- 82.3. 18 Am. & Eng. Ann Cas. 907.

Am. & Eng. Ann. Cas. 909. T f^""^'^"^^"^ °f a debt due from a

Cars owned by a foreign railway com- 'f'""^^ company doing business in the

pany, which have temporarily come into f^^e to a railroad company not doing

the state in the course of interstate trans- business in the state, embracing traffic

portation, through the agency of other 'valances arising out of interstate com-

carriers, are subject to attachment under ^^^^l^^' '^ "°t an interference ^^a h inter-

the state laws, despite the provisions of 'l^^%''T"'^!.''f\A-^ ^'^7.o'. m w '^.'^n'

the Interstate Commerce Act and of Rev. ^^^^ ^- ^O-, 114 Minn. 27, 130 N. W. 540.

St., § 5258 (U. S. Comp. St. 1901, p. 3564), 92. Under Interstate Commerce Act.

securing continuity of transportation. —Pullman Co. v. Linke, 203 Fed. 1017.

Davis V. Cleveland, etc., R. Co., 217 U. 93. Pullman Co. v. Linke, 203 Fed.

S. 157, 54 L. Ed. 708, 30 S. Ct. 463, 27 1017.

3545 REGULATION AND CONTROL. §§ 3931-3934

§ 3931. Removal of Cause to Federal Court. — A state law providing that
a foreign railroad corporation engaged in business in a state shall forfeit its
right to engage in intrastate commerce within the state on removing any action
against it in the state court to the federal court, is not invalid under the com-
merce clause of the federal constitution, on the ground that the prohibition of
intrastate commerce will affect injuriously the interstate commerce of the cor-
poration, as the whole earnings of the corporation from all sources must be taken
as the basis for measuring the reasonableness of the interstate rates, and depri-
vation of profits from domestic business will reduce the gross earnings, since
the statute does not deal with the regulation of rates, but with the right to engage
in domestic business. ^■^

§ 3932. Equitable Remedies. — To charge a railroad company as trustee
of goods delivered to it as a carrier for interstate shipment would not be an un-
lawful interference with interstate commerce. ^^

§ 3933. Requiring Claim for Damages to Be Made in Prescribed
Time. — The provision of a state law that a stipulation in a contract for a shorter
limitation than two years in which to sue, and of that a stipulation requiring no-
tice of claim for damages to be given within less than ninety days, as a condi-
tion to the right to sue, shall be void, are vahd, as applied to a contract for the
carriage of goods from the state into another state or territory.'^c gt^te laws,
declaring contracts invalid, which require actions against carrier for injuries to
shipment in less than the statutory time, were superseded as to interstate ship-
ments by Carmack Amendment of June 29, 1906, which furnishes the exclusive
rule on such subject.^'''

§ 3934. Requiring Payment of Damages in Prescribed Time.— A state
law providing a penalty on carriers for failure to pay damages on freight within
sixty days, is not unconstitutional as in violation of the interstate commerce

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 84 of 214)