Topic D. Conflict between Federal and State Jurisdiction § 142. Power of Congress to regulate. 149. State legislation burdening interstate commerce. 151. Scope for State police power. § 110. Provisions of the Act. With due deference to the constitutional limitations upon the federal government, section 1 of the Act gives the Commission jurisdiction over all services which shall be considered and held to be common carriers within the meaning and purpose of this Act, engaged in what is within the definitions of the Act as some form of transportation from one State or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however, that the provisions of the Act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one State and not shipped to or from a foreign country from or to any State or Territory as aforesaid, nor shall they apply to the transmission of messages by telephone, telegraph, or cable wholly within one State and not transmitted to or from a foreign country from or to any State or Territory as aforesaid. Generally speaking it is the theory of the Act that a service is within the jurisdiction of the Commission only to the extent that its course is a continuous one; but it is furthermore provided in section 7 that no carrier subject to the provisions of the Act shall enter into any combination, contract or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this Act. § 111. Scope of power conferred. The entire commerce of the United States, foreign and interstate, is subject to the provisions of the act of Congress to regulate commerce; and the full force of the Act applies to all carriers and all circumstances within the jurisdiction of the Commission.25 It is intended to and does apply, not only in cases of direct injury to particular individuals or industries, but also in cases involving indirect injury to the community as a whole.26 The extent to which this control may go as a practical matter raises many difficult questions. Where a road runs through several States, it is quite obvious that, in determining the 25 Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405. 28 Re Export and Domestic Rates on Grain, 8 I. C. C. 214. reasonableness of a rate established by one of the States, the situation of the whole line must be considered. One of two plans must be adopted: If the income of the whole line is taken as a basis of inquiry, then the possibility of the other States fixing a similar rate must be considered; or if, on the other hand, the one rate is considered, its reasonableness must be determined by an examination of the capitalization and income of the road within the particular State. But the complexities of this matter are such that it cannot be intelligently discussed until the last chapter is reached. Topic A. Foreign Commerce § 112. Foreign carriers. The Commission can, of course, have no jurisdiction over transportation carried on entirely in a foreign country.27 The word "adjacent," as used in the act to modify the words "foreign country," would seem to mean adjacent in the sense of the possibility of substantial continuity of rails. 28 Thus the Commission has held that it has no jurisdiction over rates for transportation wholly in Canadian territory.29 And likewise, it has had occasion to decide that it has no jurisdiction over railroads operating in Mexico.30 But the Commission has said that, as it is given by the Act jurisdiction over traffic moving from a point in the United States to a point in Canada, it may undoubtedly act upon the American carrier to the extent which it has jurisdiction, leaving it doubtful whether it could require American lines to establish and maintain for the future a rate to Canadian points.31 Therefore, in order to violate the Act, the giving of the rebate or other violation must take place within the United States, since an 27 Humbolt S. S. Co. v. W. P. & Y. R., 25 I. C. C. 136. 28 Lykes S. S. L. v. Commercial Union, 11 I. C. C. 310. 29 Fullerton L. & S. Co. v. B. B. & B. C. R. R. Co., 25 I. C. C. 376. 30 Eagle P. L. Co. v. N. R. of Mex., 25 I. C. C. 5. 31 Rates on Soda Ash and Other Commodities, 28 I. C. C. 613. Act of Congress cannot affect the legality of anything done outside its jurisdiction; and moreover, improper charging outside the United States cannot be punished under the Act. 32 Nor can discrimination between places in Canada in respect to rates applicable in Canada constitute a violation of the Act.33 As to foreign carriers the jurisdiction of the Commission is not to be determined by anything other than the language of Section 1, and its distinguishing between adjacent countries on our continent and carriage beyond our seaboard must be noted.34 $113. Ocean carriers. It is clearly the intent of the Act that the Commission should have no jurisdiction over ocean carriers. It is understood that the ocean rate varies frequently from day to day, depending upon the price of ocean freights; it is a matter of bargain which may become the subject of contract. Thus, an ocean carrier established under the laws of Cuba and transporting traffic between Havana and Galveston is not subject to the Act to Regulate Commerce.35 The Commission has, therefore, no direct authority to require the issuing of through export bills of lading, since it has no jurisdiction over the water carriers. 36 Indeed, the act provides no machinery by which its provisions can be enforced as to trans-Atlantic steamship lines, and the absence of such provision can be explained only by accepting the interpretation that the Commission has no jurisdiction in the premises; and the pooling of traffic by water carriers is, therefore, a matter over which the Commission has no jurisdiction.37 The distinction should be noted that while the Commission may regulate interstate traffic, whether by rail or by a combined rail-and-water 32 United States v. Knight, 3 Int. Com. Rep. 801. "Cist v. Michigan Central R. R., 10 Int. Com. Rep. 217. 14 Cosmopolitan S. Co. v. H.-A. P. Co., 11 I. C. C. 266. 35 Lykes S. S. Line v. C. U., 11 I. C. C. 310. 36 Galveston C. A. v. A., T. & S. F. Ry. Co., 25 I. C. C. 216. 37 Cosmopolitan S. Co. v. H.-A. P. Co., 11 I. C. C. 266. route, from point of receipt to point of delivery, the Commission in its control over foreign commerce is limited to the regulation of such traffic, whether by railroad or by a combination of rail and water carriers, from and to the point of transshipment, the inland movement of such traffic being the only matter which the Commission can regulate.38 Although the Commission has no jurisdiction. of ocean rates, and must deal with the port differential question as though the ports were destinations instead of gateways, the rates to and from the water carrier are subject to all provisions of the Act.39 The jurisdiction of the Commission over goods going out of a State in course of foreign commerce attaches although it is at first only moving on local bills. 40 § 114. Foreign carriers and discriminations. To a certain extent, so far as they may be applied in accordance with the principles fundamental in the conflict of laws, the provisions of the Act apply to foreign as well as domestic common carriers engaged in the transportation of passengers or property, for a continuous carriage or shipment from a place in the United States to a place in an adjacent foreign country. The common carriers engaged in such transportation apparently are subject to the provisions of the Act in respect to the printing of schedules of rates, fares, and charges for the traffic they carry, and posting and filing with the Interstate Commerce Commission of copies of such schedules. It was, therefore, early held by the Commission that the Grand Trunk Railway of Canada violated the Act by allowing a rebate on goods shipped from Buffalo to Canadian points.41 But the regulation of the transportation of foreign merchandise from 38 Aransas Pass Channel & Dock Co. v. G. H. & S. A. Ry. Co., 27 I. C. C. 403. 39 Chamber of Commerce of New York v. N. Y. C. & H. R. R. R. Co., 24 I. C. C. 55. 40 Railroad Commission of La. v. Texas & P. Ry., 229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct. 9. 41 Re Grand Trunk Ry., 2 Int. Com. Rep. 496, 3 I. C. C. 89. |