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A treatise on the law of carriers (Volume 4) online

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be described as a general code for the regulation and government of railroads
upon the subjects treated therein, it can not be contended that it furnishes a com-
plete and perfect set of rules and regulations which are to govern them in all
cases, and that any subsequent act in relation to them must, when passed, in ef-
fect amend or repeal some provision of that statute. The statute does not cover
all cases concerning transportation by railroad and all contracts relating thereto.
It does not purport to cover such an extensive field. ^*^

§ 3983. History of Act. — Prior to the enactment of the act of February 4,
1887, to regulate commerce, commonly known as the Interstate Commerce Act,
railway traffic in this country was regulated by the principles of the common law
applicable to common carriers, which demanded little more than that they should
carry for all persons who applied, in the order in which the goods were delivered
at the particular station, and that their charges for transportation should be rea-
sonable. It was even doubted whether they were bound to make the same charge
to all persons for the same service ; though the weight of authority in this country
was in favor of an equality of charge to all persons for similar services. In sev-
eral of the states acts had been passed intended to secure the public against un-
reasonable and unjust discrimination. i'''

§ 3984. Constitutionality of Act. — Congress has the power, and a corre-
sponding duty, under the federal constitution, to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes. ^^ The constitu-
tionality of the provision imposing upon the initial carrier liability for loss regard-
less of whether the same occurred on its portion of the route or upon that of a
connecting carrier, can not be attacked upon the ground that it deprives the receiv-
ing carrier of his liberty to select his own agencies for a continuous route of the
transportation beyond his own line, where it appears that in the instant case the

15. Interference with commerce.— v. Michigan, 121 U. S. 230, 30 L. Ed. 888,
Texas, etc., R. Co. v. Interstate Commerce 7 S. Ct. 857.

Comm., 162 U. S. 197, 40 L. Ed. 940, 16 18. Constitutionality of act.— Fargo v.

S. Ct. 666; Louisville, etc., R. Co. v. Belli- Michigan, 121 U. S. 230, 30 E. Ed. 888, 7

nier, 175 U. S. 648, 44 L. Ed. 309, 20 S. S. Ct. 857; New York, etc., R. Co. v.

Ct. 209. Interstate Commerce Comm., 200 U. S.

16. Not intended to cover whole field.— 361, 50 L. Ed. 515, 26 S. Ct. 272.
United States v. Trans-Missouri Freight Act of congress known as the "Car-
Ass'n, 166 U. S. 290, 41 L. Ed. 1007, 17 mack Amendment to the Hepburn Bill,"
S. Ct. 540. and as the "Initial Carriers' Act" (Act

17. History of act.— 24 Stat. 379, ch. 104; June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U.
Interstate Commerce Comm. v. Balti- S. Comp. St. Supp. 1909, p. 1166]), is con-
more, etc., R. Co., 145 U. S. 263. 36 L. stitutional. Sturges v. Detroit, etc., R.
Ed. 699, 12 S. Ct. 844. See, also, Western Co., 166 Mich. 231, 131 N. W. 706.
Union Tel. Co. v. Call Pub. Co., 181 U. Equal protection of the laws.— Act
S. 92, 45 L. Ed. 765, 21 S. Ct. 561; North- Cong. June 29, 1906, c. 3591, 34 Stat. 593
western Warehouse Co. v. Oregon R., (U. S. Comp. St. Supp. 1907, p. 909), is
etc., Co., 159 Fed. 975. not unconstitutional as denying equal pro-
Congress has freely exercised the tection of the laws. Galveston, etc., R.

power to regulate commerce so far as Co. v. Wallace (Tex. Civ. App.), 117 S.

relates to commerce with foreign nations W. 169.

and with the Indian tribes, but in regard Taking private property for public pur-

to commerce among the several states it poses. — The act Cong. June 29, 1906. c.

has, until Act of February 4, 1887, re- 3591, 34 Stat. 584 (U. S. Comp. St. Supp.

trained from the passage of any very im- 1909, p. 1149) is .a valid regulation of in-

portant regulation upon this subject, ex- terstate commerce, and is not unconsti-

cept perhaps the statutes regulating tutional as taking private property for

steamboats and their occupation upon the public purposes. Houston, etc., R. Co. v.

navigable waters of the country. Fargo Lewis, 103 Tex. 452, 129 S. W. 594.


defendant had selected its own agencies and the connecting carriers and made its
own arrangements and rates before receiving the goods in question for ship-
ment, i-'

Investigation and Compelling- Attendance of Witnesses. — The same ob-
servation may be made in respect to those provisions empowering the commission
to inquire into the management of the business of carriers subject to the provi-
sions of the act, and to investigate the whole subject of interstate commerce as
conducted by such carriers, and, in that way, to obtain full and accurate informa-
tion of all matters involved in the enforcement of the act of congress. It is clearly
competent for congress, to that end, to invest the commission with authority to
require the attendance and testimony of witnesses, and the production of books,
papers, tariffs, contracts, agreements, and documents relating to any matter le-
gally committed to that body for investigation. ^^

Prohibition of Discrimination.— There can be no question of the power of
congress to regulate interstate commerce to prevent favoritism, and to secure
equal rights to all engaged in interstate trade. -^ The prohibition of unjust
charges, discriminations or preferences, by carriers engaged in interstate com-
merce, in respect to property or persons transported from one state to another,
is a proper regulation of interstate commerce, and the object that congress has in
view by the act in question may be legitimately accomplished by it under the
power to regulate commerce among the several states. In every substantial sense
such prohibition is a rule by which interstate commerce must be governed, and is
plainly adapted to the object intended to be accomplished. ^^ In so doing congress
may control those who are conducting interstate commerce by holding them
responsible for the intent and purposes of the agents to whom they have delegated
the power to act in the premises. - ^

Levying Export Taxes and Duties. — The mere incidental effect upon ex-
ports which may be produced by applying to a shipment from an interior point of
the United States to a foreign port the provisions of the Elkins Act, making it
an offense against the United States to obtain the transportation of property in
interstate or foreign commerce at less than the carrier's published rates, does not
render such provisions repugnant to the United States constitution, forbidding
the levying of export taxes or duties.-'*

Preference to Ports. — Preference is not given to the ports of one state over
those of another by applying to articles intended for foreign export the provisions
of the Elkins Act -•'' making it an oft'ense against the United States to accept trans-
portation of goods in interstate or foreign commerce at less than the carrier's
published rates. -"^

"Who May Raise Question. — A law will not be declared invalid at the in-
stance of one not aft'ected by it; hence persons not aft'ected by statutory provi-

19. Imposing liability on initial carrier. 21. Prohibition of discriminatioru — New

—Atlantic, etc., R. Co. r. Riverside Mills, York, etc., R. Co. v. United States, 212

219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304.

164, 31 L. R. A., N. S., 7; Louisville, etc., 22. Interstate Commerce Comm. v.

R. Co. V. Scott, 219 U. S. 209, 55 L. Ed. Brimson, 154 U. S. 447, 38 L. Ed. 1047,

183, 31 S. Ct. 171. 12 S. Ct. 1125.

The Interstate Commerce Act (Act 23. New York, etc., R. Co. v. United

Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 fU. States, 212 U. S. 481. 53 L. Ed. 613, 29

S. Comp. St. 1901, p. 3169]), making the S. Ct. 304.

initial carrier who issued a l)ill of lading 24. Levying export taxes and duties. —

liable for the default of each successive Const. U. S., art. 1, § 9; Act. Feb. 19,

carrier to the point of destination, merely 1903; Armour Packing Co. v. United

declares the common law and is const!- States, 209 U. S. 56, 52 L. Ed. 681, 28 S.

tutional. Reid v. Southern R. Co., 69 S. Ct. 428.

E. 618, -[',-.', X. C. 400. 25. Preference to ports. — Act Feb. 19,

20. Investigation and compelling attend- loo.i.

ance of witnesses. — Interstate Commerce 26. Armour I'acking Co. v. United

Comm. V. Brimson. 154 U. S. 447, 38 L. States, 209 U. S. 56, 52 L. Ed. 681, 28

Ed. 1047, 12 S. Ct. 1125. S. Ct. 428.

4 Car— 32

§§ 3984-3985 carriers. 3604

sions alleged to be unconstitutional have no standing to urge constitutional ob-
jections against the same.-'^

Due Process of Law. — The validity of the act as ajiplied to the due process
of law clauses of the constitution has several times been declared.-^"* A corporate
carrier engaged in interstate commerce has no standing to object that the last
paragraph of § 1 of the Elkins Act-" is unconstitutional in that it applies to in-
dividual carriers as well as those of a corporate character and attributes the acts
of the agents of such individual carriers to them, thereby making the crime of
one person that of another, thus depriving the latter of due process of law and
the presumption of innocence which the law raises in his favor. ^"

Partial Invalidity. — Moreover this section of the statute is separable, and
even if the presumption thus created as to individuals were unconstitutional, the
act would still remain valid as to corporate carriers. ^^

§ 3985. Construction of Act. — The courts should adopt a reasonable con-
struction of the act in order to accomplish its general purpose obtaining fair
treatment for the public from carriers, and reasonable charges for transportation,
and the honest performance of duty, with no improper or unjust preference or
discrimination.^- The Interstate Commerce Act is applicable and is intended to
apply, only to matters involved in the regulation of commerce, and which congress
may rightfully subject to investigation by a commission established for the pur-
pose of enforcing that act.^^ A statute of the scope of the interstate commerce
act, designed to regulate the vast interstate transportation business of the coun-
try, is not to be narrowly interpreted in accordance with the economical or phys-
ical conditions prevailing at the time of its enactment. ^'^

The interpretation given by the commission to the act to regulate com-
merce that these prohibitions are not applicable to carriers which, prior to the
adoption of the interstate commerce act, were authorized by their charters or leg-
islative authority to carry on both the business of mining and selling the coal so
mined, and transporting the same to market, is now binding, and, as restricted to
the precise conditions which were passed on in the cases referred to, must be ap-
plied to all strictly identical cases in the future ; at le"ast, until congress has leg-
islated on the subject. This is in consequence of the familiar rule that a con-
struction made by the body charged with the enforcement of a statute, which
construction has long obtained in practical execution, and has been impliedly
sanctioned by the re-enactment of the statute without alteration in the particulars
construed, when not plainly erroneous, must be treated as read into the statute. -"'^

27. Who may raise question of consti- 32. Construction of act. — Southern Pac.
tutionality. — Williams v. Walsh, 222 U. Co. z\ Interstate Commerce Comm., 200
S. -115. 56 L. Ed. 253, 32 S. Ct. 137; At- U. S. 536, 50 L. Ed. 585, 26 S. Ct. 330.
lantic, etc.. R. Co. v. Riverside Mills, 219 33. Interstate Commerce Comm. v.
U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, 31 Brimson, 154 U. S. 447, 38 L. Ed. 1047,
L. R. A., N. S., 7. 12 S. Ct. 1125.

28. Due process of law.-Pittsburgh 3^^ ^^^^^ ^ ^^ ,^, i^t.^.^^te
^^•'R; Co. r. Mitchell 175 Ind 196, 91 Commerce Comm. 191 Fed. 40.

N. E. 735, 93 N. E. 996, citmg Riverside ^ . / ^ ^„ .
Mills V. Atlantic, etc., R. Co., 168 Fed. ^ Construction of amendments. — Elkins
987; Smeltzer v. St. Louis, etc., R. Co., Act as amended by Act June 29, 1906, for-
158 Fed. 649; Greenwald v. Weir, 59 Misc. bidding concessions or discrimination in
Rep. 431, 111 N. Y. S. 235; Galveston, respect to transportation, held not to be
etc., R. Co. V. Crow (Tex. Civ. App.), 117 restricted by the narrower language of
S. W. 170; Galveston, etc.. R. Co. v. Piper Interstate Commerce Act, §§ 2, 3 pro-
Co., 52 Tex. Civ. App. 568, 115 S. W. 107. hibiting unjust discrimination and un-

29. Act Feb. 19, 1903, 32 Stat. 847. due or 'unreasonable prejudice or dis-

30. New York, etc., R. Co. v. United advantage. Hocking Valley R. Co. v
States, 212 U. S. 481, 53 L. Ed. 613, 29 Umted States. 210 Fed 735; Sunday Creek
S. Ct. 304; S. C, 212 U. S. 500. 53 L. Co. v. Lnited States, 210 Fed. 74..

Ed. 624, 29 S. Ct. 309. 35. New York, etc., R. Co. v. Inter-

31. Partial invalidity. — New York, etc., state Commerce Comm., 200 U. S. 361,
R. Co. V. United States, 212 U. S. 481, 53 50 L. Ed. 515, 26 S. Ct. 272.

L. Ed. 613, 29 S. Ct. 304.

3605 INTERSTATE COMMERCE x\CT. §§ 3985-3986

Construed as English Traffic Act. — The Interstate Commerce Act having
adopted substantiaUy some of the provisions of the Enghsh railway traffic acts
the construction given to such provisions by the Enghsh courts must be received
as incorporated into the act.^*^ The construction of the phrase "undue or unrea-
sonable preference or advantage," as used in the interstate commerce act, when
applied to any particular description of traffic, must be the same as when applied
to any particular person, company, firm, corporation, or locality. All of said
terms being contained in a single sentence, the same construction must be given
to each and every part of the sentence. ^"^

Clause Limiting- Operation of Act. — The proviso in § 1 of the Interstate
Commerce Act of Feb. 4, 1887, that the act shall not apply to transportation
wholly within one state, was not intended as a limitation of its provisions, where
they are within the powers of congress, and does not prevent the application of
the provision of § 3 prohibiting discrimination between localities to cases where
such discrimination is brought about by state action reducing intrastate rates. ^'^

§ 3986. Operation and Effect. — Transactions to which this act relates be-
ing interstate in their character, the act is of paramount operation, and no state
enactment can be of any avail, since the subject has been covered by an act of
congress, acting within the limits of its constitutional powers. ^^ Parties to an
interstate shipment are presumed to contract with reference to the acts of con-
gress on that subject, and such contracts can not be construed with reference to
any other law.^*^ And contracts made in contravention of the interstate com-
merce act are contrary to public policy and void, regardless of the intent of the
parties. ^^ Because opportunities of the violation of the act may occur by reason
of a rule of a carrier, is no ground for holding, as a matter of law that violations
must occur, and that the rule itself is therefore illegal.'*-

Common-Law Liability for Negligence. — The original Interstate Com-
merce Act and the amendment thereto do not in any manner supersede or amend
the common-law rule as to liability of a carrier for its negligence in interstate

On Rights Arising under State Statute. — The right of a shipper to invoke
the provisions of the interstate commerce law against discrimination on interstate
shipments against a railroad company on whose line he is located is not afifected
by the fact that the duty of such company to receive and handle all freight con-
signed over its line without discrimination arises from a state statute, rather than
from a voluntary arrangement with connecting lines. '^^

On Existing Contracts. — A contract which would be illegal if made after
the passage of the act is illegal and unenforcible although made before the act
took effect.*-'' A contract entered into prior to the passage of the interstate com-
merce law for the carriage of freight by a railway company at rates contrary to
the provisions of that law can not be enforced after its passage, and the shipper

36. Construed as English Traffic Act. 41. New York, etc., R. Co. v. Inter-
— Interstate Commerce Comm. v. Balti- state Commerce Comm., 200 U. S. 361,
more, etc., R. Co., 43 Fed. 37. 50 L. Ed. 515, 26 S. Ct. 272.

37. Interstate Commerce Comm. v. 42. Southern ' Pac. Co. v. Interstate
Chicago, etc., R. Co., 141 Fed. 1003, af- Commerce Comm.. 200 U. vS. 536, 50 L.
firmed m 209 U. S. 108, 52 L. Ed. 705, 28 j^j 5^5^ 3(5 g. Ct. 330.

^■3£'' Clause limiting operation of act. ^^- Common-law liability for negli-

-Texas, etc., R. Co. 7' LJnite.l States, f-^""T .T vv< S^rW^'^T' ^''•'

205 Fed. 380; Houston, etc., R. Co. v. «'^ ^'^'- ^•'«- ^"^ ^- "^ ' ^^'^■

United States, 205 Fed. 391. 44. On rights arising under state stat-

39. Operation and effect.— Chicago, etc., ute.— Interstate Stockyards Co. v. Iii-
R. Co. V. L'niled States. 219 U. S. 486, dianapohs, etc., R. Co., 99 Fed. 472.

55 L. rCd. 305, 31 S. Ct. 272. 45. On existing contracts. — Cowley v.

40. Southern R. Co. v. Harrison, 119 Northern I'ac. R. Co., 68 Wash. 558, 123
Ala. 539, 24 So. 552, 43 L. R. A. 385, 72 Pac. 998, 41 L. R. A., N. S., 559.

Am. St. Rep. 936.

§§ 3986-3988 carriers. . 3606

can not recover any rebates stipulated for in such contracts.'*^ Since the common
law, as such, is no part of the national jurisprudence, and since the exclusive right
to regulate commerce is vested in congress, overcharges for freight on an inter-
state shipment, involving unjust discrimination, made prior to the interstate com-
merce act, can not be recovered. And the provision of § 22 that the act shall not
abridge the remedies now existing at common law or by statute, does not con-
fer on the shipper the right to recover such overcharges, on the ground that it
recognizes a common-law or statutory liability on the part of the carrier there-

On Pending Proceedings. — The special saving clause in the Act of June 29,
1906, does not mention the particular subject of the general saving clause in the
Revised Statutes of the United States,'*"' as to the effect on existing penalties, for-
feitures, and liabilities of a repealing act, and can be accorded reasonable opera-
tion, consistently with the true intent of its la^iguage and with the undisturbed
operation of the general saving clause, by treating it as saving causes then pend-
ing in the courts from what, in its absence, and in the presence of the general sav-
ing clause, will be the effect on them of the amendments in that act. It does not
necessarily supersede the general saving clause*-*

As to Intrastate Commerce. — A carrier engaged in interstate commerce be-
comes subject, as to such commerce, to the commands of the statute, and may
not set its provisions at naught, whatever otherwise may be its power when carry-
ing on commerce not interstate in character.-''"

§ 3987. Time of Taking Effect.— Since the Act of June 29, 1906, relating
to interstate commerce, became effective on that day by virtue of an express pro-
vision in section eleven, its taking effect was not deferred by the joint resolution
of congress passed June 30, 1906, providing that the act amending an act regulat-
ing commerce approved February 4, 1887, and all acts amendatory thereof, and
enlarging the powers of the interstate commerce commission, should take effect
sixty days after its approval by the president.^'*

§ 3988. Repeal. — Under the provision of an act of congress that the repeal
of any statute shall not operate as a release from liability incurred under such
statute unless the repealing act shall expressly so provide, ^^ the saving clause
contained in the Act of June 29, 1906, relating to interstate commerce, did not
repeal the Act of Feb. 19, 1903, in so far as it affected an indictable offense there-
under, previously committed.^^ Section 10 of the rate law of June 29, 1906,

46. Bullard v. Northern Pac. R. Co., 10 vided f-or shall not affect causes now
Mont. 168, 25 Pac. 120, 11 L. R. A. 246. pending * * * \^^x. such causes shall

47. Gatton v. Chicago, etc., R. Co., 95 be prosecuted to a conclusion in the man-
Iowa 112, 63 N. W. 589, 28 L. R. A. 556. ner heretofore provided by law," in view

48. On pending proceedings.— Rev. St., of Rev. St.. § 13 [U. S. Comp. St. 1901,
§ 13 [U. S. Comp. St. 1901, p. 6]. p. 6], providing that "the repeal of any

49. Great Northern R. Co. v. United statute shall not have the effect to re-
States, 155 Fed. 945, 84 C. C. A. 93, lease or extinguish any penalty, forfei-
judgment affirmed in 208 U. S. 452, 52 L. ture or liability incurred under such stat-
Ed. 567, 28 S. Ct. 313. ute, unless the repealing act shall so ex-

50. As to intrastate commerce. — New pressly provide, and such statute shall be
York, etc., R. Co. v. Interstate Commerce treated as still remaining in force for the
Comm., 200 U. S. 361, 50 L. Ed. 515, 26 purpose of sustaining any proper action

5. Ct. 272. or prosecution for the enforcement of

51. Time of taking effect. — Southern such penalty, forfeiture or liability," ap-
Pac. Co. V. Meadors & Co. (Tex. Civ. plies to rebate offenses committed before,
App.), 129 S. W. 170. but prosecution for which was coni-

52. Repeal. — U. S. Comp. St. 1901, p. menced after, the passage of such act; so

6, § 13. that an indictment in such a case alleg-

53. United States v. New York, etc., ing that a carrier "unlawfully and will-
R. Co., 153 Fed. 630. fully" gave rebates, which would be

The provision of the Hepburn law enough under the Elkins law (Act Feb.

(Act June 29, 1906, c. 3591, § 10, 34 Stat. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp.

584), repealing lav/s in conflict with the St. Supp. 1905, p. 599]). is sufficient,

act, that "the amendments herein pro- though under the Hepburn law it would

3607 INTERSTATE COMMERCE ACT. §§ 3988-3989

which provides that all laws and parts of laws in conflict with the provisions of
this act are herehy repealed, but the amendments herein provided for shall not af-
fect causes now pending in courts of the United States, but such causes shall be
prosecuted to a conclusion in the manner heretofore provided by law, was not in-
tended to relieve offenders under the old law from subsequent indictment and
prosecution for such offenses, while leaving those previously indicted subject to
punishment, but merely to prescribe the rule of procedure which should control
in pending causes, and in view of the above provision, must be so construed.^-*

§ 3989. Definitions. — The term "common carrier" as used in this act
shall include express companies and sleeping car companies.^'"'

The term "railroad" as used in this act shall include all bridges and ferries
used or operated in connection with any railroad, and also all the road in use by
any corporation operating a railroad, whether owned or operated under a con-
tract, agreement, or lease, and shall also include all switches, spurs, tracks, and
terminal facilities of every kind used or necessary in the transportation of the
persons or property designated herein, and also all freight depots, yards, and
grounds used or necessary in the transportation or delivery of any said prop-

Regulation. — Within the term "regulation" are embraced two ideas : One is
the mere control of the operation of the roads, prescribing the rules for the man-
agement thereof — matters which affect the convenience of the public in their use.
Regulation, m this sense, may be considered as purely public in its char-
acter, and in no manner trespassing upon the rights of the owners of railroads.
But within the scope of the word "regulation," as commonly used, is embraced
the idea of fixing the compensation which the owners of railroad property shall
receive for the use thereof ; and when regulation, in this sense, is attempted, it
necessarily affects the property interests of the, railroad owners ; and it is "regu-
lation" in this sense of the term.''^'^

The term "transportation" shall include cars and other vehicles and all
instrumentalities and facilities of shipment or carriage, irrespective of owner-
ship or of any contract, express or implied, for the use thereof and all services

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 95 of 214)