dinate tribunal this duty; or it might leave with the companies the right to fix rates subject to regulations and conditions." There would therefore seem to be no doubt that Congress possesses the inherent right which every legislature having power has, either to fix rates itself or give to its commission power in the premises. Thus far it has wisely refused to fix rates itself; and it has with equal wisdom withheld from the Commission the power to make schedules of rates. By its persistent policy it has given the Commission only power to give relief from unreasonable rates in particular cases calling for its action. The first grant of power in this regard was held by the courts to go no further than to authorize the Commission to declare the rate complained of improper.85 But in the latest legislation the Commission is given power in giving relief to designate what the proper rate shall be henceforth.86

§ 143. Effect of action by Congress.

Whatever doubts there may be as to the extent to which State regulation of interstate commerce may go in the absence of federal regulation, there is no doubt as to the fate of State regulation of the conduct of interstate commerce which comes in conflict with federal regulation. Thus State legislation forbidding the charging of more for a short haul than for a long haul can have no application to interstate rates in view of the express provisions of the Interstate Commerce Act as to this matter.87 So a State statute providing for redress for those charged more than the scheduled rates is certainly without force as to charges for interstate shipments in view of the similar provision of the Interstate Commerce Act.88 But

85 Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Com. Comm., 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700.

86 See Railroad Commission Cases, 116 U. S. 307, 29 L. ed. 636.

87 Louisville & N. Ry. Co. v. Eubank, 184 U. S. 27, 46 L. ed. 416, 22 Sup. Ct. 277.

88 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802.

Congress cannot go so far in regulation of the conduct of interstate commerce as to invade the power of the States over matters within their jurisdiction. Thus Congress cannot go the length of subjecting all employees of carriers having an interstate business to the rules which it may attempt to lay down, as was held in the first Employers' Liability Cases under the first law.89 But since the Second Employers' Liability Cases under the present law, it has been recognized that Congress may make special rules applicable to employees actually engaged at the time in service connected with an interstate movement of traffic.90

§ 144. Jurisdiction of State and nation.

When we come to deal with the constitutional complications due to our federal government, too wide a field is opened for anything but reference here. It is generally laid down that for normal cases the rule is as simple as that there would be federal regulation for interstate matters and state regulation of intrastate affairs. Thus a State cannot make provision by statute for redress for a refusal made to a shipper by a carrier where the cars desired were for an interstate shipment.91 And correspondingly the State cannot make regulations relating to the delivery of cars which are moving under a consignment in interstate commerce.92 It has recently been established by a succession of cases that since the Carmack Amendment to the Act has laid down rules for limitation of liability for loss of shipment, all State regulations of every

89 See The Employers' Liability Cases, 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. 141.

See Butts v. M. & M. Transp. Co., 230 U. S. 126, 31 Sup. Ct. 118, holding that the Civil Rights Act is not left applicable upon the high seas.

90 See Illinois C. Ry. v. Behrends, 233 U. S. 473, 34 Sup. Ct. 646.

See El Paso & B. Ry. v. Gutier

rez, 215 U. S. 587, 29 Sup. Ct. 250, holding that the Employers' Liability Act remained effective in the territories.

91 Houston & T. C. Ry. v. Mayes, 201 U. S. 321, 50 L. ed. 772, 26 Sup. Ct. 491.

92 Chicago, R. I. & P. Ry. v. Hardwick F. El. Co., 226 U. S. 426, 57 L. ed. 284. 33 Supp. Ct. 174.

sort, even an explicit statute apparently generally applicable, can have no longer any application to interstate shipments.93 Indeed, a recent case 94 goes so far as to hold that a regulation contained in the published tariffs of an interstate railway carrier on file with the Interstate Commerce Commission, limiting its baggage liability to $100 unless a greater value is declared and stipulated by the owner and the excess charges paid, is binding upon the passenger in case of loss of the baggage through the carrier's negligence, regardless of the passenger's lack of knowledge of or assent to such regulation. This means that when Congress, by the Amendment took possession of this phase of the interstate railway transportation of property, all State rules whatsoever relating thereto were automatically set aside.

§ 145. Division of jurisdiction normally.

Two recent decisions in the Supreme Court of the United States will serve to show how closely the lines of this distinction are drawn. In one of them 95 it was held that a municipal ordinance requiring a local license to be obtained as a condition precedent to conducting an express business within the municipality should be construed, in the absence of a controlling decision of the courts of the State, as not applicable to the transaction by an express company of its interstate business, since, construed otherwise, the ordinance would be invalid as an unconstitutional regulation of commerce. In the other 96 it was held that a State may fix reasonable rates for ferriage from its shore to the shore of another State over a boundary stream, until Congress undertakes to regulate such rates; and that, therefore, State regulation of the rates to be charged

93 Chicago, R. I. & P. Ry. v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383.

94 Boston & M. R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526.

95 Barrett v. New York, 232 U. S.

14, 34 Sup. Ct. 203, and note cases cited.

98 Port Richmond & B. P. Ferry Co. v. Board of Freeholders, 234 U. S. 317, 34 Sup. Ct. 821; and note cases cited.

for a ticket for a round trip over an interstate ferry from the shore of such State to the shore of another State, and return, is valid until Congress undertakes to regulate such rates By way of further contrast two State cases may be cited. In one of them 97 it was said that the decisions of the United States courts and the opinions of the Interstate Commerce Commission construing the Act to Regulate Commerce have no application to intrastate shipments. In the other 98 the fundamental principle was reiterated that a contract between a shipper and a railroad company for the carriage of goods from a point within one State to a point within another State is interstate commerce, and not the subject of State regulation as to tolls or compensation.

§ 146. Application of regulating statutes.

Where a statute may have two interpretations, one unconstitutional, and the other valid, one applying to all commerce, the other simply to intrastate commerce, the latter will be upheld.99 Thus State statutes and rulings of State railroad commissioners are not applicable to interstate shipments.1 And provisions against railroad companies for overcharges and unjust discrimination in the shipment of freight, have no application to interstate commerce. The penalties provided by the State authorities for wrongs by carriers cannot apply to interstate shipments. The deduction will be absolute that the legislature of a State intended by the commission act which it has passed to regulate only intrastate traffic, and did not intend to enter the domain of interstate regulation in violation of the commerce clause of the national Con

97 Alabama G. S. Ry. Co. v. McClesky, 160 Ala. 630, 49 So. 433.

98 Jennings v. Big Sandy & C. Ry. Co., 61 W. Va. 664, 57 S. E. 272.

99 Darlington Lumber Co. v. Mo. Pac. Ry., 216 Mo. 658, 116 S. W. 530.

1 Greason v. Ry., 112 Mo. App. 116, 86 S. W. 722.

2 Wright v. Howe (Tex. Civ. App.), 24 S. W. 314.

Lowe v. Seaboard A. L. Ry. Co., 63 S. C. 248, 41 S. E. 297.

stitution. Therefore, a provision for free time for unloading and loading in a State statute does not apply to interstate traffic. And a penalty for not surrendering freight after tender of charges cannot apply to interstate shipments. On the other hand, a State penalty for failure to notify has been upheld by a State court as applicable to interstate shipments. And, wherever the interests of the State may be said to be peculiarly affected, its legislation will stand in the absence of explicit action by Congress bearing upon the subject. Thus a State may still regulate the size of train crews. And, since there is not enough to show that Congress has any idea of leaving the matter without regulation, the State may request the payment of wages."

8

§ 147. Respective powers over service.

It is beyond the jurisdiction of a State, as the Supreme Court of the United States has often pointed out, to enforce the performance of transportation for those desirous of shipping beyond the State. 10 But apparently a State commission may order service to be maintained to and from the State line, although there is no station there, and train movements will necessarily be to and from a junction point beyond the State line.11 A State body has no jurisdiction to determine whether an express company shall, as to interstate shipments, deliver packages to the residences and places of business of consignees.12 And by a like course of reasoning it will be apparent

Oregon R. & Nav. Co. v. Campbell, 173 Fed. 980.

5 St. Louis & S. F. Ry. v. State, 26 Okla. 62, 107 Pac. 929, 30 L. R. A. (N. S.) 137.

Trinity & B. V. Ry. Co. v. Geppert (Tex. Civ. App.), 135 S. W. 164.

7 St. Louis, I. M. & S. Ry. v. Edwards, 94 Ark. 394, 127 S. W. 713.

Pittsburg, C., C. & St. L. Ry. v. State, 172 Ind. 147, 87 N. E. 1034.

State v. Missouri Pac. Ry. (Mo.), 147 S. W. 118.

10 Southern Ry. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, and cases cited.

11 Missouri Pacific R. R. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. 330.

12 State v. Adams Exp. Co., 171 Ind. 138, 144, 85 N. E. 337.