35. Congressional Regulation of Loss and Damage Claims. .36. Requiring Railroads to Perform Transportation Service. 87. Sale and Regulation of Passenger Tickets. 38. Same Subject-Mileage Books-Party-Rate Tickets. 44. When Interstate Transportation Begins and Ends. Rates. Intrastate Rates Which Affect Interstate Rates. 45. Limitations on the Power of States to Regulate Intrastate Rates. 46. Property Basis for Returns. 47. When Does a Rate Violate Rights under the Fourteenth Amendment? 48. Rates-Evidence That a Rate Is Confiscatory-Rates on a Few Commodities. 49. Same Subject-Relative Cost of Different Kinds of Transportation. 50. Testing a Rate by Use to Determine Whether or Not It Is Confiscatory. 51. Issuance of Stocks and Bonds. 55. Regulating Charges for Transportation by Water. 56. Regulating Pilotage, Ports, Harbors and Vessels. 57. Boards of Trade and Exchanges. 58. Inspection-Quarantine, Game, Food, Liquor, and Lottery Laws. 59. Taxation, Including License Taxes. 60. Procedure to Test the Validity of State Regulations. § 1. Scope of Chapter.-Paragraph (3), Section 8, Article I, of the Constitution of the United States contains the grant of power to Congress over interstate commerce and gives Congress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes." It is not the purpose of this book to treat of the subject of interstate commerce in its widest scope, the work being confined to a discussion of the rights and duties of shippers and carriers. To determine what these rights and duties are it is necessary to discuss what is interstate commerce, when a carrier is engaged therein, and to what regulations an interstate carrier is subject. That such carrier may, as to that portion of its business which is within a particular state, be subjected to some state regulation is, under the present laws of Congress, indisputable. The extent of this regulation by the state is the subject of this chapter. It may be said, as a general rule, that a state, through the proper authorities duly acting, may pass all reasonable laws for the regulation of the health, happiness and safety of its citizens; and such laws and regulations are not invalid merely because they may incidentally affect interstate commerce. It may be further stated that the mere existence of power in Congress to regulate interstate commerce does not exclude the states from the exercise of power over such commerce. In the absence of congressional legislation, or in the absence of action by the Interstate Commerce Commission, where the matter has been delegated to it, states may indirectly legislate affecting interstate commerce. § 2. Interstate Commerce Defined.-Interstate commerce, as defined in the Constitution of the United States, is commerce "among the several states," but the Constitution does not define commerce. What "commerce" includes cannot be definitely stated or delimited. Its primary meaning is traffic, purchase, and sale, but it means also intercourse, interchange, or mutual exchange, of commodities. It includes the carrying by independent carriers of things or commodities which are ordinarily the subject of traffic and which have in themselves a recognized value in money. This intercourse includes all the preliminary, intervening and consummating acts, instrumentalities and dealings that bring about the sale or exchange of commodities. It embraces transportation by land and by water and the means and appliances necessary thereto, including transportation of persons and property.1 Products of farm, mine, forest or factory cannot be said to have entered the field of interstate commerce until actually launched on the way to another state or committed to a carrier for transportation to such state. The sale of such prod 1 Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 1, 6 L. Ed. 23 (1824); Lottery case, Champion v. Ames, 188 U. S. 321, 345, 47 L. Ed. 492, 23 Sup. Ct. 321; Simpson et al., R. R. Com. of Minnesota v. Shepard ("Minnesota Rate Cases'), 230 U. S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 729, and cases cited; United States v. Swift & Co., 122 Fed. 529. Modified and subject discussed, Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276. For a discussion of what transportation is included within the provisions of the Interstate Commerce Act, see, post, Sec. 78. 2 McCluskey v. Marysville & N. R. Co., 243 U. S. 36, 61 L. Ed. 578, 37 Sup. Ct. 374, quoting from The Daniel Ball, 10 Wall 557, 19 L. Ed. 999 and Coe v. ucts and their delivery to the purchaser free on board cars in the state of primary production for transmission to another state is equivalent to a commitment to a carrier and constitutes the transaction one of interstate commerce.3 The Supreme Court in holding that the transmission of information by telegraph was interstate commerce stated as a principle to be applied: "Practice, intent and the typical course, not title or niceties of form, were recognized as determining the character" of any particular transaction. A transaction not itself within the meaning of the term interstate commerce may be regulated by Congress under the commerce clause on the principle that Congress has the power to protect interstate commerce from burdens, although the thing which causes the burden is not such commerce.5 The transmission of intelligence by telegraph or telephone is an agency of commerce and intercommunication. The powers of Congress over interstate commerce must "keep pace with the progress of the country, and adapt themselves to the new development of time and circumstances.'' Errol, 116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475. In the Daniel Ball, ''common' was used before carrier, but it is not believed that such a restriction is legally sound. In U. S. v. Burch, 226 Fed. 974, 975, District Judge Dooling, in holding that taking a woman in an automobile across a state line was interstate commerce, said: "Interstate commerce then is, among other things, the passage of persons or property from one state to another. It does not necessarily, or indeed at all, involve the idea of a common carrier, or the payment of freight or fare". This rule was applied to the transportation of liquors. Ex parte, Westbrook, 250 Fed. 636. 3 Penn. R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120, 61 L. Ed. 188, 37 Sup. Ct. 46. 4 Western Union Tel. Co. v. Foster, 247 U. S. 105, 62 L. Ed. 1006, 38 Sup. The Ct. 438. See also Valley and Siletz R. 5 Houston E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833. This principle, seemingly applicable, (See article by present writer Case and Comment, April, 1917, P. 906) was disregarded in the Child Labor Case, Hammer v. Dagenhart, 247 U. S. 251, 62 L. Ed. 1101, 38 Sup. Ct. 529, 3 A. L. R. 649. 6 Pensacola Tel. Co. V. Western Union Tel. Co., 96 U. S. 1, 9, 24 L. Ed. 708; Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126. Teaching by correspondence schools commerce, International Text Book Co. v. Lynch, 81 Vt. 101, 69 Atl. 541. Shoemaker v. Chesapeake & Potomac Tel. Co., 20 I. C. C. 614. Regula decisions in the White Slave cases are but an adaptation to modern-day developments of the principles stated in Gibbons v. Ogden, Note 1, ante. The importation of films showing a prize fight and the transportation thereof in interstate commerce may be prevented under the commerce clause.8 § 3. Power of Congress Exclusive, When.-Congress alone has power directly to regulate or burden interstate commerce, and as to such direct burden or regulation the power of Congress is plenary, all pervading, exclusive and indivisible. In the absence of federal regulation interstate commerce is free from direct regulation. Says Mr. Justice Hughes in the Minnesota Rate Cases:" tion by interstate commerce commission of an interstate telephone line; Postal Tel. Co. v. City of Mobile, 179 Fed. 955, 960; "Telegraph business is commerce. Messages passing from one state to another are interstate commerce and subject to federal and free from state regulations, Western Union Tel. Co. v. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 Sup. Ct. 399; Western Union Tel. Co. v. Commercial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 Sup. Ct. 59, affirming Commercial Milling Company v. Western Union Tel. Co., 151 Mich. 425, 115 N. W. 698. Insurance is not commerce, New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495, 58 L. Ed. 332, 34 Sup. Ct. 167, and cases cited. Wages of railroad employees are within the regulatory power granted by the Commerce Clause, Wilson v. New, 243 U. S. 332, 61 L. Ed. 755, 37 Sup. Ct. 298. Other illustrations are: Contracts for vaudeville artists who travel and transport their necessary equipment among the states, Marienelli v. U. S. Booking Offices, 227 Fed. 165; piping gas from one state to another, Landon v. Public Utilities Co. of Kansas, 242 Fed. 658; printing, publishing and distributing a newspaper among the states, Post Printing & Pub. Co. v. Brewster, 146 Fed. 321. 7 Hoke v. United States, 227 U. S. 308, 57 L. Ed. 523, 33 Sup. Ct. 281, 43 L. R. A. (N. S.), 906, Ann. Cas. 1913E 905; Athanasaw v. United States, 227 U. S. 326, 57 L. Ed. 528, 33 Sup. Ct. 285, Ann. Cas. 1913E, 911; Bennett v. United States, 227 U. S. 333, 57 L. Ed. 531, 33 Sup. Ct. 288; Johnson v. United States, 215 Fed. 679. That a state, Congress having acted, may not forbid the importation of women for immoral purposes, is held in State v. Harper, 48 Mont. 456, 138 Pac. 495, 51 L. R. A. (N. S.), 157. See also Caminetti v. U. S., 242 U. S. 470, 61 L. Ed. 442, 37 Sup. Ct. 192. 8 Weber v. Freed, 239 U. S. 325, 60 L. Ed. 308, 36 Sup. Ct. 131, Ann. Cas. 1916C 317; United States v. Johnston, 232 Fed. 970. 9 Simpson et al., R. R. Co. of Minnesota v. Shepard, 230 U. S. 352, 399, 57 L. Ed. 1151, 33 Sup. Ct. 729, eiting McCulloch v. Maryland, 4 Wheat 316, 17 U. S., 316, 405, 426, L. Ed. 579; The Daniel Ball, 10 Wall. 77 U. S. 557, 565, 19 L. Ed. 999; Smith v. Alabama, 124 U. S. 465, 473, 31 L. Ed. "There is no room in our scheme of government for the assertion of state power in hostility to the authorized exercise of federal power. The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the state, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere. The grant in the Constitution, of its own force, that is, without action by Congress, established the essential immunity of interstate commercial intercourse from the direct control of the states with respect to those subjects embraced within the grant which are of such a nature as to demand that, if regulated at all, their regulation should be prescribed by a single authority. It has repeatedly been declared by this court that as to those subjects which require a general system or uniformity of regulation the power of Congress is exclusive." The statement of this rule in Western Union Telegraph Co. 508, 8 Sup. Ct. 564; Baltimore & O. R. Co. v. Interstate Com. Com., 221 U. S. 612, 618, 619, 55 L. Ed. 878, 31 Sup. Ct. 621; Sou. Ry. Co. v. United States, 222 U. S. 20, 26, 27, 56 L. Ed. 72, 32 Sup. Ct. 2; Mondou v. New York, N. H. & H. R. R. Co., 223 U. S. 1, 47, 54, 55, 56 L. Ed. 327, 32 Sup. Ct. 169, 38 L. R. A. (N. S.), 44; Chicago R. I. & P. R. Co. v. Hardwick Farmers Elevator Co., 226 U. S. 426, 57 L. Ed. 284, 33 Sup. Ct. 174; St. Louis I. M. & S. R. Co. v. Edwards, 227 U. S. 265, 57 L. Ed. 506, 33 Sup. Ct. 26; reversing same-styled case, 94 Ark. 394, 127 S. W. 713. In MeDermott v. Wisconsin, 228 U. S. 115, 128, 57 L. Ed. 754, 33 Sup. Ct. 431, it was said, that Congress has ample power "not only to pass laws which shall regulate legitimate commerce among the states and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, to make such as are injurious to the public health outlaws of such commerce and to bar them the facilities and privileges thereof." |