court held that a railroad company whose road was wholly within the bounds of a single state which had voluntarily engaged as a common carrier in interstate commerce, by making an arrangement for the continuous carriage of goods through another state, was subject as to such traffic to the provisions of the act. An express agreement for a through rate is not required, but the successive receipt and forwarding in the ordinary course of business by two or more carriers in interstate traffic under through bills, or any arrangement for a continuous carriage over their lines, constitutes assent to such common arrangement for the carriage within the meaning of the act.

When there is a through bill of lading for a continuous carriage, it is immaterial that one of the roads party to the through bill received the sole benefit of the rate on its own line. Such a case was presented to the supreme court in L. & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309 (1900), where the court said that the contention under this state of facts that the carriers did not constitute a continuous line bringing them within the control of the act to regulate commerce was no longer open to controversy in that court. See also United States v. Seaboard Railway Co., 82 Fed. 563 (1897).

A local switching company is not subject to the act where it makes no contracts of through shipment, but imposes a separate trackage charge upon the other companies for the use of its tracks in local transportation. But where such a company does become a party to such a contract for through shipment, it becomes as to such business subject to the act. See C., M. & St. P. R. Co. v. Becker, 32 Fed. 849 (1897). As to the evidencing of contracts for through shipments, see the ruling of the commission in 2 I. C. C. R. 553, and 2 Int. Com. Rep. 393.

A railroad lying wholly within a state which transports freight, whether coming from within or without the state, solely on local bills of lading on a special contract limited with its own lines, and without dividing charges with any other carrier or assuming any obligations to or for them, does not come within the provisions of the act and is not bound to make any report of its business to the commission. U. S. v. Railroad Co., 81 Fed. 783, (1897), following 162 U. S. 184, supra, and Commission v. B. Z. & C. R., 77 Fed. 942. See also U. S. v. Geddes, sixth circuit, C. C. A., supra. Through routing by arrangement for con

tinuous interstate traffic, is a matter of contract between the carriers, subject to the power of the commission to compel a through routing under the act as amended in 1906. See infra, § 372.

It is the through bill of lading that marks the continuous interstate carriage; neither the intention of the shipper nor the actual movement of the goods has any bearing upon the matter. 162 U. S. 184, 40 L. Ed. 935 (1896); 204 U. S. 403, 51 L. Ed. 540 (1907); 21 I. C. C. R. 207.

§ 141 (109). Transportation through a state.-Commerce between points in the same state, which is carried through another state, is interstate commerce and subject to the act. This was definitely determined by the supreme court in Hanley v. Kansas City Southern Railway Co., 187 U. S. 617, 47 L. Ed. 333 (1903), where the court affirmed the judgment of the circuit court of Arkansas enjoining the railroad commissioners of Arkansas from fixing and enforcing rates upon that part of the route within the state of Arkansas of a shipment beginning and ending in the state of Arkansas.

The court held that there could be but one rate fixed by one authority, and that the case was analogous to that of navigation on the high seas between ports of the same state. The court distinguished this case from that of a tax which was sustained in Lehigh Valley Ry. Co. v. Pennsylvania, 145 U. S. 192, 36 L. Ed. 672 (1892), which was in respect of the receipts of the proportion of the transportation within the state. A tax may be thus apportioned according to mileage, but when a rate is established, it must be established as a whole. This was the view that had been sustained by the commission in several cases, 7 I. C. C. R. 92, and overrules United States v. Lehigh Valley R. Co., 115 Fed. Rep. 372, and several state decisions which had been based upon the decision of the supreme court in the Lehigh Valley case.

8 142 (106). Territorial transportation.-The original act provided for the control of commerce between the states and territories. The power of congress within the territories, however, is general and plenary, combining the powers of state and federal governments under the express power to make all needful rules and regulations respecting the territory of the United States. Constitution, art. IV, sec. 3. See Mormon Church v. U. S., 136 U. S. 1, 34 L. Ed. 481 (1890). See also decision of the su

preme court holding the Employer's Liability Act of 1906 valid in the territories and the district of Columbia, though invalid in the states. 215 U. S. 87, 54 L. Ed. p. 106 (1909). The inclusion of transportation within a territory was effected by the amendment of 1906.

Thus the act, which was effective intra-territorially in Oklahoma from August 28, 1906, expired by its own force on November 16, 1907, when Oklahoma was admitted as a state. See 13 I. C. C. Rep. 366 and 473; 220 U. S. 302, 55 L. Ed. (1911).

A

The commission by a majority report has ruled (19 I. C. C. Rep. 105) that it has no jurisdiction over the railroads of Alaska, and has declined to entertain a complaint for that reason. writ of mandamus to compel the commission to take such jurisdiction was refused in the supreme court of the district of Columbia, which refusal was reversed upon appeal to the court of appeals, and the matter is now (1911), before the supreme court of the United States.

§ 143 (110). Interstate electric railroads.-As early as 1897 the commission, by a majority report, held that the terms of the act are broad and general and contain no exception excluding from its scope "those interstate roads which are constructed upon public highways, to provide the means for local passenger transportation in the streets of towns and cities and their various suburbs." 7 I. C. C. R. 83. In 1907, the commission said that "the act makes no distinction between railroads that are operated by electricity and those that use steam;""both are subject to the act when engaged in interstate transporation;" and "we may be measurably near its (electricity's) general use as the chief motive power in transportation." 13 I. C. C. R. 20. In 1909, the commission ruled that an interurban road connecting Council Bluffs, Iowa, with Omaha, Neb., is a common carrier engaged in the interstate transportation of persons, and, therefore, amenable to the act. 17 I. C. C. R. 239.

S

This ruling was sustained by the commerce court (Oct. 5, 1911), Fed., in an injunction brought by the railroad company to restrain the enforcement of the order. The court held that the commission had jurisdiction to make the order, overruling the decision of the circuit judges of the eighth circuit (179 Fed. 243, April, 1910) in granting a temporary injunction against the order, holding that the act did not apply to street

railroad companies. The commerce court in this case also held that the rate fixed by the commission, ten cents, was reasonable. The commission has exercised its jurisdiction over electric street railways carrying interstate passengers in other cases. See 20 I. C. C. R. 232, 406, 486.

In section 15 of the Act of June 18, 1910, amending the Interstate Commerce Act, congress presumably with knowledge that the commission was exercising jurisdiction over electric street railways carrying interstate passengers enacted the following, in section 15, concerning through routing:

"The commission shall not, however, establish any through route, classification, or rate between street electric passenger railways not engaged in the general business of transporting freight in addition to their passenger and express business and railroads of a different character." (For construction of this proviso by the commission, see infra, § 374.)

This would seem to recognize the existence of the power of the commission over street electric railway passengers; otherwise there would have been no reason for inserting this exception in the statue.

8144 (111). Receivers, lessees and purchasers pendente lite. When railroad corporations are subject to the act, their receivers are also subject to its prohibitions, requirements and regulations. 6. I. C. C. R. 1; 6 I. C. C. R. 378; see also Erb v. Morash, 177 U. S. 584, 44 L. Ed. 897 (1900). Lessees of such corporations and purchasers at foreclosure sales are bound by the orders of the commission made pending such foreclosure. Interstate Commerce Commission v. W., N. Y. & P. R. Co., W. D. of Pa., 82 Fed. Rep. 192 (1897).

It was ruled by the commission in 6 I. C. C. R. 378, that a railroad company subject to the act, could not by leasing its road, free itself from liability for practices made illegal by the act, nor after resuming possession of its property, pending proceedings against it to enforce such statutory provisions, claim exemption from liability during the time of the lease. See Elkins Act, infra, § 422.

§ 145 (112). Foreign commerce.-The act includes traffic "From any place in the United States to an adjacent foreign country, or from any place in the United States through a for

eign 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 *** 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."

The supreme court said in the Import Rate Case, 162 U. S. 197. 40 L. Ed. 940 (1896), after quoting this part of the section:

"It would be difficult to use language more unmistakably signifying that congress had in view the whole field of commerce (excepting commerce wholly within a state) as well that between the states and territories as that going to or coming from foreign countries."

The jurisdiction of the commission extends to only that part of the through import or export rate which applies to the inland proportion received by the carrier. As to effect of competition in import and export rates making disimilar circumstances and conditions under sections 3 and 4, §§ 233, 295; infra. As to publications of import and export rates, see 8 I. C. C. R. 214; 10 I. C. C. R. 55.

The commission has ruled (13 I. C. C. Rep. 266) that it has no jurisdiction as to shipments moving from ports of the United States to a foreign country not adjacent, when such shipments are not carried by rail, or by rail and water, from an inland point of origin to a port of transshipment. An inland movement, by rail or by rail and water of exports or import traffic is a condition precedent to the jurisdiction.

It has recently (spring of 1911) been held by Judge McPherson, United States district court, at Philadelphia, that a carrier was not guilty of rebating under the Elkins Act, who transported sugar by rail within the United States at less than its published rates, the through bill of lading reading from Hamburg, Germany, "to Philadelphia for transportation in bond to Raymond, Alberta." Indeed a careful reading of the act to regulate commerce does not disclose any intention to regulate such transportation from one foreign country through the United States to another foreign country. Since this decision an amendment to the act has been introduced in congress to correct the oversight. In 13 I. C. C. Rep. 310, the commission interpreted “adjacent