tends to public utilities owned by individuals as well as by corporations.56 If a matter has been determined by the judgment of a court of competent jurisdiction, the commission has no authority to assume jurisdiction and render a contrary decision.57

Of course, if the power of the commission is fixed by the constitution of the state, the legislature cannot modify, curtail or abridge such power.58

A provision in a public utilities act that, with the consent and approval of the commission, a public utility may purchase stock of another public utility, is a valid one.59

to

Of course, the fact that the legislature has previously delegated

a public service commission general powers to regulate railroad service does not preclude it from thereafter enacting specific laws upon that subject, since the legislature cannot exhaust or diminish its own powers by conferring upon subordinate commissions or bodies the right to exercise administrative functions.60

The similarity in purpose and function of state public service commissions to the Interstate Commerce Commission makes the decisions as to the powers and jurisdiction of the latter of great value in determining the powers and jurisdictions of the state commissions.

What corporations are within the control of public service commissions has already been noticed.61

§ 4385.- Powers of state commission over interstate railroads. An interstate railroad is subject to the jurisdiction of the public service commission of a state both in respect to those matters relating to the police power which have been confided to the commission and to business conducted wholly within the state, but, independently of the commerce clause in the Federal Constitution,62 it has no jurisdiction as to operations outside the state.63 Of course, a state commission has no power to regulate rates for interstate transportation.64

L. R. A. 1917 D 907, 73 So. 878, farm crossing over railroad.

56 Van Dyke v. Geary, 244 U. S. 39, 61 L. Ed. 973, aff'g 218 Fed. 111, construing Arizona Constitution and stat

utes.

60 Chicago, B. & Q. R. Co. v. Railroad Commission of Wisconsin, 152 Wis. 654, 140 N. W. 296.

61 See § 4375, supra.
62 See § 4392, infra.

63 Laird v. Baltimore & O. R. Co., 121 Md. 179, 47 L. R. A. (N. S.) 1167, Ann. Cas. 1915 B 728, 88 Atl. 347, 348, the particular holding in this case being set forth in § 977, supra.

64 Oregon R. & Nav. Co. v. Campbell, 230 U. S. 525, 57 L Ed. 1604. And see § 4392, 4485, infra.

§ 4386. Conflict of jurisdiction as between public service commission and municipality. If a municipality has made a contract with a public service company either as a part of the grant of a franchise to use the streets or otherwise, and such a contract was within the power of the municipality, then the contract cannot be impaired by the acts of the commission unless such power was reserved and in existence at the time of the making of the contract. This question usually arises in connection with rate problems, and the governing rules as applied to impairment of a contract are fully considered hereafter.65 In Washington, it is also held that even if the regulation by a city is such as to constitute a contract with a corporation which cannot be impaired, yet the city cannot raise the question of impairment of contract as against the state, where the corporation consents, and that therefore it cannot attack a repeal or change of such regulation by a public service commission as an impairment of contract.66 Aside from any question of impairment of contract, it seems that mere regulations enacted by a municipality are subject to change by the public service commission.67 In some states, it is expressly provided by statute that the public service commission may review the requirements of an ordinance, in order to determine whether it is just and reasonable, so far as the ordinance relates to additions and extensions by public utilities.68 In California, however, a constitutional provision reserves to every incorporated city all the powers of control over public utilities relating to the making and enforcement of local, police, sanitary, and other regulations, except the fixing of rates, unless the city by popular vote chooses to transfer the same to the railroad commission.69 The charter of the city of St. Louis framed and adopted by the freeholders of the city, in so far as it attempts to provide for the regulation of public utilities, has been held inoperative as conflicting with the Public Service Commission Act which gave the control and management of public utilities to a state commission.70

Conversely, orders of such a commission, where within its author

65 See §§ 4472-4474, infra.

66 State v. King County Superior Court, 67 Wash. 37, L. R. A. 1915 C 287, Ann. Cas. 1913 D 78, 120 Pac. 861.

67 See Tulsa St. R. Co. v. State, 26 Okla. 559, 110 Pac. 373.

Power of commission to increase rates, see § 4469, infra.

68 Cincinnati v. Public Utilities Commission, 91 Ohio St. 331, Ann. Cas. 1916 E 1081, 110 N. E. 461.

69 Los Angeles v. Central Trust Co. of New York, 173 Cal. 323, 159 Pac. 1169.

70 State v. Public Service Commission, 270 Mo. 429, 445, 198 S. W. 872, 192 S. W. 958.

ity, cannot be set at nought by inconsistent ordinances of a municipality thereafter enacted.71

§ 4387. -Compelling corporation to fulfil its duties or comply with order of commission. In most of the states the public service. commission statute provides that the commission itself may bring a mandamus or injunction suit to compel certain kinds of corporations to comply with its franchise obligations or obey orders of the commission.72 In New York, it is held that these remedies were not intended to supersede the old ones but to place in the hands of public officers more efficient remedies.73

§ 4388. Classification of regulations by commissions. These regulations by commissions fall into three natural classes, viz.: (1) The right to regulate tolls and charges, to the end that fair compensation may be returned and excessive charges be forbidden. (2) The right to prevent discrimination upon the part of the public utility directed against those who employ it, or make use of its agencies, or the commodity which it furnishes. (3) The right to make orders and to formulate rules governing the conduct of the public utility, to the end that its efficiency may be built up and maintained and the public and its employees be accorded desirable safeguards and conveniences.74

$4389. Reports to commission. Reports by the corporations within the regulating power of the commission, to the commission, are often required by statute. A state statute requiring every railroad company incorporated or doing business in the state to make reports to a commission does not conflict with the federal statute requiring railroad companies to make certain reports to the Interstate Commerce Commission.75

VII Priv. Corp.-23

145 N. Y. App. Div. 645, 650, 130 N. Y. Supp. 477; Public Service Commission of First District v. New York R. Co., 77 N. Y. Misc. 487, 136 N. Y. Supp. 720.

74 Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 663, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915 C 822, 137 Pac. 1119.

75 People v. Chicago, I. & L. R. Co., 223 Ill. 581, 7 Ann. Cas. 1, 79 N. E. 144.

§ 4390. Procedure before commission. This matter is treated of in a subsequent subdivision.76

V. REGULATIONS AS VIOLATIONS OF FEDERAL CONSTITUTION

§ 4391. In general. Governmental regulations, in order to be valid, must not violate provisions of the state or Federal Constitution, and hence they cannot be upheld where an improper interference with interstate commerce,77 or where they impair the obligation of a contract,78 or where they are unreasonable or otherwise constitute a violation of the due process of law provision,79 or where they deny the corporation the equal protection of the laws,80 or where they violate other constitutional provisions. However, the provision of the Federal Constitution that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not apply to corporations since a corporation is not a "citizen" within the meaning of such provision.81

§ 4392. Interference with interstate commerce-In general. While a state has an inherent right to regulate internal commerce, it has no power to regulate interstate commerce where it constitutes a direct and substantial, as distinguished from a merely incidental, interference therewith.82 This question often arises in connection with the power of a state to regulate public service corporations, such as railroads, telegraph companies, pipe line companies, and the like, where they are engaged in interstate commerce. Certain corporations are engaged, more or less, in interstate commerce. This includes railroad companies, express companies, sleeping car companies, telegraph companies, and the like; and sometimes it includes certain telephone companies, bridge companies, ferry companies, pipe line companies, street car companies, and the like. Moreover, the act creating the Interstate Commerce Commission expressly confers jurisdiction upon it over not only interstate common carriers (including not only railroads but also express companies and sleeping car companies), but also pipe line companies, except those transporting water or gas, and telegraph, telephone and cable companies.83

85

The first question which arises is whether the corporation affected is engaged in interstate commerce and if so whether the regulation in any way affects such commerce. Of course, the mere fact that a corporation is engaged in interstate commerce does not wholly preclude its regulation by the state where commerce is not affected thereby. Thus the fact that a corporation, when using the streets of a municipality, is engaged in interstate commerce, does not make it immune from the operation of general ordinances of the municipality. 84 Grain elevators and warehouses are not necessarily engaged in interstate commerce, but may be regulated by the state.86 So express companies engaged in interstate commerce may be regulated by the state as to deliveries within the state.87 Insurance companies are not engaged in interstate commerce so as to preclude state regulation of them or of their contracts.88 Natural gas piped from one state into another may be an article of interstate commerce,89 and a state cannot regulate a pipe line company whose pipes run from one state in to another, where an interference with interstate commerce.90 The imposition of a penalty for the violation of a duty which a public service company owes by the general law of the land is not a regulation of or an obstruction to interstate commerce; and this rule has been applied to a state statute requiring telegraph companies to transmit and deliver dispatches with impartiality and diligence, under penalty, in the absence of legislation by Congress on the subject,91 and also to a statute requiring common carriers to settle, within a specified time, claims for loss of or damage to freight while in its possession within the state, in the absence of legislation by Congress. upon the subject.92

interstate bridge is not a "railroad" within the act. Omaha & C. B. St. R. Co. v. Interstate Commerce Commission, 230 U. S. 324, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385.

84 Barrett v. New York, 183 Fed.

793, 796.

85 Budd v. New York, 143 U. S. 517, 36 L. Ed. 247; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

86 W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. Ed. 619; Brass v. North Dakota, 153 U. S. 391, 38 L. Ed. 757, aff'g 2 N. D. 482, 52 N. W. 408. 87 Wells, Fargo & Co. v. Northern

Pac. Ry.

Co.,

23 Fed. 469; United

States Exp. Co. v. State, 164 Ind. 196, 101; State v. Wignall, 150

73 N. E.

Iowa 650, 34 L. R. A. (N. S.) 507, 128 N. W. 935; State v. Pacific Exp. Co., 80 Neb. 823, 18 L. R. A. (N. S.) 664, 115 N. W. 619.

88 New York Life Ins. Co. v. Cravens, 178 U. S. 389, 44 L. Ed. 1116, aff'g 148 Mo. 583, 53 L. R. A. 305, 71 Am. St. Rep. 628, 50 S. W. 519.

89 Landon v. Public Utilities Commission of State of Kansas, 242 Fed. 658.

90 Landon v. Kansas Public Utility Commission of Kansas, 234 Fed. 152; Fidelity Title & Trust Co. v. Kansas Natural Gas Co., 219 Fed. 614.

91 Western U. Tel. Co. v. James, 162 U. S. 650, 40 L. Ed. 1105.

92 Atlantic Coast Line R. Co. v. Ma