the Fourteenth Amendment of the Constitution by depriving the company of its property or liberty without due process of law or by depriving it of the equal protection of the laws.' Of these contentions the Supreme Court, in holding the Michigan statute void,215 said:

"In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health or proper convenience of the public, but an arbitrary enactment in favor of the persons spoken of, who in the legislative judgment should be carried at a less expense that the other members of the community."

This decision would appear to be conclusive, although the Supreme Court of Georgia, in a well-considered opinion, has held valid a regulation of the Railroad Commission of Georgia requiring railroads, as to intrastate transportation from cities of a designated size, to honor mileage books on their trains, and prohibiting the requirement in the contract that mileage shall be exchanged for a ticket.216

215 Lake S. & M. S. Ry. Co. v. Smith, 173 U. S. 684, 698, 43 L. Ed. 858, 19 Sup. Ct. 565.

216 Louisville & N. R. Co. v. R. R. Com. of Georgia, 140 Ga. 817, 80 S. E. 327, Ann. Cas. 1915A, 1018. As sustaining the Georgia court see Delaware, L. & W. R. Co. v. Board of Public Utility Comr's. 84 N. J. L. Vroom 619, 87 Atl. 801. See Beardsley v. New York L. E. & W. R. Co., 162 N. Y. 232, 56 N. E. 488, holding that a statute requiring the issuance of mileage books was void and reversing same styled case, 17 Misc. Rep. 256, 40 N. Y. Supp. 1077, 15 App. Div. 251, 44 N. Y. Supp. 175. In Attorney

General v. Old Colony R. Co., 160 Mass. 62, 35 N. E. 252, 22 L. R. A. 112, it was held that a similar statute was void, the court saying: "The objection that the statute authorizes one railroad to make conditions concerning the transportation of passengers which must be performed by other railroads seems to us valid. The objection is not that the legislature has itself attempted to declare the rights of passengers who have purchased mileage tickets. The legislature, by this statute, has not determined the conditions which shall be incident to the carriage of passengers under these tickets; nor has it left

§ 39. Free Transportation.-As to interstate transportation, Congress has so legislated as to prevent free transportation except as to certain designated persons and classes.217 One purpose of governmental regulation of common carriers, if not the chief and most beneficent, is the prevention of favoritism, and that such purpose may be accomplished, states may, within the scope of the commerce subject to their regulation, prevent common carriers from discriminating by giving free transportation of persons or of property. Exceptions to the general rule may lawfully be made in favor of certain public or charitable purposes, and carriers may interchange transportation service.218

A state may not require free transportation to shippers of cattle in interstate commerce.219

A state statute authorizing state-incorporated railroads to issue transportation in payment for printing and advertising is void as to interstate transportation.2 220

§ 40. Routing Freight. The Railroad Commission of Arkansas passed this regulation: "In case of failure on the part of the shipper to give routing instructions, it shall be the duty of the railroad receiving the shipment to forward it via such route as will make the lowest rate.'

As Congress has the exclusive, undivided and plenary power to regulate interstate commerce, such a rule as to that commerce is void, although as to an intrastate haul it would be reasonable and valid.221

§ 41. When Interstate Transportation Begins and Ends.— In determining the question as to the validity of a particular regulation made by the federal or state governments, it is necessary to decide whether the transportation affected by the regulation is interstate or intrastate transportation. If the transportation is to be interstate, it is subject to federal regulation and excluded from state regulation from the time it begins. It makes no difference that the particular service sought to be regulated is performed wholly in one state if the transportation is interstate. In Coe v. Errol,222 the Supreme Court stated negatively when the interstate transportation began by saying it did not begin until the goods "have been shipped, or entered with a common carrier for transportation to another state, or have been started upon such

219 State v. Otis, 60 Kan. 248, 56 Pac. 14. See Note 207, ante.

220 Chicago, I. & L. R. Co. v. United States, 219 U. S. 486, 55 L. Ed. 305, 31 Sup. Ct. 272, affirming United States v. Chicago, I. & L. R. Co., 163 Fed. 114. See also Louisville & N. R. Co. v. Mottley, 211 U. S. 149, 53 L. Ed. 126, 29 Sup. Ct. 42.

221 St. Louis & S. F. R. Co. v. Allen, 181 Fed. 810; Porter v. St. Louis & S. F. R. Co., 78 Ark. 182, 95

S. W. 953. For other cases see Dec. Dig., Key No. Title Commerce, Secs. 8 and 61.

222 Coe v. Errol, 116 U. S. 517, 527, 29 L. Ed. 715, 6 Sup. Ct. 475, followed, Sou. Pac. Terminal Co. v. Interstate Com. Com., 219 U. S. 498, 527, 55 L. Ed. 310, 31 Sup. Ct. 279; and Ill. C. R. Co. v. Louisiana R. R. Com., 236 U. S. 157, 59 L. Ed. 517, 35 Sup. Ct. Rep. 275.

transportation in a continuous route or journey." In another part of the opinion, it was said that goods are in interstate commerce when they have "actually started in the course of transportation to another state, or delivered to a carrier for transportation."

In Covington Stock Yards Co. v. Keith,223 the rule as to both the beginning and ending of the transportation was stated as follows: "The transportation of live-stock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be delivered, to the consignee.'

Freight tendered for through transportation is within the regulating power of the federal government, although a bill of lading cannot be issued until the agent learns from his superiors the legal rate.224

A car containing interstate shipments is, prior to reaching its destination, engaged in interstate commerce, although stopped for repairs.225 When, however, the transportation contract has been completed, the fact that such completed contract was one of interstate transportation will not make a subsequent shipment of the same goods to a point in the same state one of interstate transportation.226

Goods stored for more than two months under a provision of an interstate tariff permitting storage in transit retain the character of an interstate shipment.227 So a reshipment of a car that had moved in interstate commerce from one to another point in a state under a reconsignment right is an

223 Covington Stock Yards Co. v. Keith, 139 U. S. 128, 136, 35 L. Ed. 73, 11 Sup. Ct. 416, quoted and followed, United States v. Union Stock Yard & Transit Co., 226 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 83.

224 Southern Ry. Co. v. Burlington Lumber Co., 225 U. S. 99, 56 L. Ed. 1001, 32 Sup. Ct. 657; and cases cited.

225 Delk v. St. Louis & S. F. R. Co., 220 U. S. 580, 55 L. Ed. 590, 31 Sup. Ct. 617.

226 Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540, 27 Sup. Ct. 360, cited and distinguished in Southern Pac. Terminal Co. v. Interstate Commerce Commission, supra; Chicago M. & St. P. Ry. v. Iowa, 233 U. S. 334, 58 L. Ed. 988, 34 Sup. Ct. 592.

227 Western Transit Co. v. Leslie & Co., 242 U. S. 448, 61 L. Ed. 423, 37 Sup. Ct. 133.

interstate shipment.228 228 In discussing the Child-Labor Law, the Supreme Court said: "The making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped or used in interstate commerce make their production a part thereof.220 Applying this principle, the mere intention ultimately to continue a movement that is intrastate to a point beyond the state does not constitute the first and independent movement an interstate shipment.230

A shipment intended for a point in another state cannot be billed to a point in the state in which the shipment originated and then rebilled to the destination point on the sum of the intermediate local rates. The through interstate rate must be applied. In discussing this question, the Interstate Commerce Commission said:231 "This commission, as hereinbefore stated, has steadfastly adhered to the proposition that on any through carriage of traffic between interstate points the lawfully published interstate rate must be applied by the carrier and paid by the shipper, and that where the through interstate rate in effect between two points is higher than the aggregate of the intermediate rates any plan of first billing to an intermediate point a shipment that is really intended to reach a destination beyond is simply a device for defeating the lawful through rate, and is unlawful."

228 A. T. & S. F. Ry. Co. v. Harold, 241 U. S. 371, 60 L. Ed. 1050, 36 Sup. Ct. 665. "The real and ultimate destination of the shipment" controls, United States v. Philadelphia & R. Ry. Co., 232 Fed. 946.

229 Hammer v. Dagenhart, 247 U. S. 251, 62 L. Ed. 1101, 38 Sup. Ct. 529 and cases cited in the opinion. Abstractly the principle quoted is a correct one, but while the question is not here important, it is believed that the Supreme Court should have applied to the law under discussion the principle that Congress may keep the field of interstate commerce free from any act that will handicap any one wishing to cultivate that field. For a discussion of the Child Labor

Law by the author hereof, see Case & Comment Vol. 23, No. 11, April 1917, pp. 906.

230 Arkadelphia Mill Co. v. St. L. S. W. R. Co., 249 U. S. 134, 63 L. Ed. 517, 39 Sup. Ct. 237, P. U. R. 1919C, 710; Southern Pacific Co. v. Arizona, 249 U. S. 472, 63 L. Ed. 713, 39 Sup. Ct. 313; U. S. v. Erie Railroad, 280 U. S. 98, 74 L. Ed. (Adv. Op.), 50 Sup. Ct. 51.

231 Kanotex Refining Co. v. A. T. & S. F. Ry. Co., 34 I. C. C. 271, 276. Applying the rule quoted see: Alabama G. S. R. Co. v. McFadden & Bros., 232 Fed. 100; same case, 241 Fed. 562, 154 C. C. A. 338; Missouri K. & T. Ry. Co. v. Ashinger, 162 Pac. 814.