matter, states may regulate "the manner in which interstate trains shall approach dangerous crossings, the signals which shall be given, and the control of the train which shall be required under such circumstances. Crossings may be so situated in reference to cuts or curves as to render them highly dangerous to those using the public highways. They may be in or near towns or cities, so that to approach them at a high rate of speed would be attended with great danger to life or limb. On the other hand, highway crossings may be so numerous and so near together that to require interstate trains to slacken speed indiscriminately at all such crossings would be practically destructive of the successful operation of such passenger trains. Statutes which require the speed of such trains to be checked at all crossings so situated might not only be a regulation of, but also a direct burden upon, interstate commerce, and, therefore, beyond the power of the state to enact."

This quotation states a general rule, the application of which to a Georgia statute requiring an interstate carrier to check its trains at public crossings resulted in a holding that the statute was valid.139

In this decision, the question was not fully presented and the conclusion was not followed when the same Georgia statute came again under review.140

§ 25. Furnishing Cars for the Receipt and Delivery of Shipments. Prior to the passage of the Hepburn Act,141 the Texas legislature passed a law prescribing rules under which carriers should furnish cars to shippers. A penalty was fixed as follows:

"When cars are applied for under the provisions of this chapter, if they are not furnished the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of $25 per day for each car failed to be furnished, to be recovered in any court of competent

139 So. Ry. Co. v. King, 217 U. S. 524, 533, 534, 54 L. Ed. 868, 30 Sup. Ct. 594.

140 Seaboard A. L. R. Co. v. Blackwell, 244 U. S. 310, 61 L. Ed. 1160,

37 Sup. Ct. 640; Western & Atlantic R. R. Co. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 Sup. Ct. 445. 141 Post, Secs. 401 to 404.

jurisdiction, and all actual damages such applicant may sustain."

The only excuse which the carrier could give to escape the penalty was "strikes or other public calamity." The Texas Court of Civil Appeals having sustained a judgment for a penalty under the statute,142 the cause was appealed to the Supreme Court, and that court determined the question of whether the regulation was reasonable, as it had a right to do, the regulation affecting interstate commerce. The Texas statute was held void as being an unreasonable regulation of interstate commerce. Mr. Justice Brown, delivering the opinion, said:143

"While there is much to be said in favor of laws requiring railroads to furnish adequate facilities for the transportation of both freight and passengers, and to regulate the general subject of speed, length, and frequency of stops, for the heating, lighting, and ventilation of passenger cars, the furnishing of food and water to cattle and other live stock, we think an absolute requirement that a railroad shall furnish a certain number of cars at a specified day, regardless of every other consideration except strikes and other public calamities, transcends the police power of the state, and amounts to a burden upon interstate commerce. It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention. in other states, or in other places within the same state, it makes no allowance for interference of traffic occasioned by wrecks or other accidents upon the same or other roads, involving a detention of traffic, the breaking of bridges, accidental fires, washouts, or other unavoidable consequences of heavy weather."

Had the regulation allowed all proper excuses for failing to furnish the cars, it would have been reasonable and, therefore, valid. In concluding the opinion, Mr. Justice Brown said: "Although it may be admitted that the statute is not far

142 Houston & T. C. R. Co. v. Mayes, 36 Tex. Civ. App. 606, 609, 83 S. W. 53, 55.

143 Houston & T. C. R. Co. v.

Mayes, 201 U. S. 321, 50 L. Ed. 772, 26 Sup. Ct. 491. See also, So. Ry. Co. v. Melton, 133 Ga. 277, 65 S. E. 665.

from the line of proper police regulation, we think that sufficient allowance is not made for the practical difficulties in the administration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the legislature."

The Texas courts have held that the law discussed above was valid as to intrastate commerce.144

§ 26. Same Subject-Rule Since Hepburn Act.-In Southern Railway Co. v. Reid,145 a statute of the State of North Carolina requiring that freight be received, when tendered, and forwarded by a route selected by the shipper under penalty of $50 a day and actual damages, was held invalid when applied to an interstate shipment. This decision was placed upon the ground that there was a conflict between the federal and the state statutes, although the court cited the Mayes case, supra, and pointed out that the state statute and the state decisions relating thereto left no doubt as to what excuses or defenses might be offered for a failure to comply with the law. In the course of the opinion, Mr. Justice McKenna took occasion to describe the wide scope of the Acts to Regulate Commerce. He said (p. 440):

"There is scarcely a detail of regulation which is omitted to secure the purpose to which the Interstate Commerce Act is aimed. It is true that words directly inhibitive of the exercise of state authority are not employed, but the subject is taken possession of."

In the Hardwick Elevator case,146 the Chief Justice, after

144 Allen v. Tex. & P. Ry. Co., 100 Tex. 825, 101 S. W. 792, reversing same styled case, Texas Civ. App., 98 S. W. 450; Texas & P. Ry. Co. v. Taylor, 42 Tex. Civ. App. 331, 118 S. W. 1097; Texas & P. Ry. Co. v. Andrews, 54 Tex. Civ. App. 418, 118 S. W. 1101,. 55 Tex. Civ. App. 302. See Sections 244 and 245, post, and as bearing on the general question, Penn. R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120, 61 L. Ed. 188, 37 Sup. Ct. 46;

U. S. v. Penn. R. Co., 242 U. S. 208, 61 L. Ed. 251, 37 Sup. Ct. 95; Sou. Pac. Co. v. Stevenson, 258 Fed. 165, 169 C. C. A. 233.

145 So. Ry. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. 140.

146 Chicago, R. I. & P. Ry. Co. v. Hardwick Farmers Elevator Co., 226 U. S. 426, 57 L. Ed. 284, 33 Sup. Ct. 174; Sec. 23, ante. Sec. 306 first edition was cited in the argument in this case, p. 431.

referring to Sections 1, 8, 9 and 10147 of the Act to Regulate Commerce as amended by the Hepburn Act, said:

"As legislation concerning the delivery of cars for the carriage of interstate traffic was clearly a matter of interstate commerce regulation, even if such subject was embraced within that class of powers concerning which the state had a right to exert its authority in the absence of legislation by Congress, it must follow in consequence of the action of Congress to which we have referred that the power of the state over the subject-matter ceased to exist from the moment that Congress exerted its paramount and all embracing authority over the subject. We say this because the elementary and long settled doctrine is that there can be no divided authority over interstate commerce and that the regulations of Congress on that subject are supreme."

The application of this principle to the Minnesota Reciprocal Demurrage Law there involved resulted in holding that law void. The state court held that the law applied to both interstate and intrastate commerce and that the regulation was valid and within the principle that Congress not having acted, the state might.148 The principle was not denied by the Supreme Court, but it was held that Congress had acted, and that as Congress had covered the whole field the state was thereby rendered "impotent to deal with a subject over which it had no inherent but only permissive power."

Following the Elevator case, the Supreme Court has held void a Mississippi regulation concerning the "delivery of cars at the termination of interstate commerce transportation, 14 and an Arkansas statute relating to reciprocal demurrage.150

147 Post, Secs. 401, 404, 473, 474. For regulation of demurrage charges by the Int. Com. Com. see: Wilson Prod. Co. v. Penn. R. Co., 16 I. C. C. 116, 121; Peale, Peacock & Kerr v. Cent. R. Co. of N. J., 18 I. C. C. 25, 35; Re demurrage investigation, 19 I. C. C. 496, 498; Lehigh Valley R. Co. v. United States, 188 Fed. 879, 887.

148 Hardwick Elevator Co. v. Chicago, R. I. & P. R. Co., 110 Minn. 25, 124 N. W. 819, 9 Ann. Cas. 1088.

149 Yazoo & M. V. R. Co. v. Greenwood Grocery Co., 227 U. S. 1, 57 L. Ed. 389, 33 Sup. Ct. 213, reversing same-styled case, 96 Miss. 403, 51 So.

450.

150 St. Louis, I. M. & S. Ry. v. Edwards, 227 U. S. 265, 57 L. Ed. 506, 33 Sup. Ct. 26; see also Arkansas statute as to distribution of cars, St. Louis Ry. Co. v. Arkansas, 217 U. S. 136, 54 L. Ed. 698, 30 Sup. Ct. 476.

The states may not regulate rates "on that part of interstate carriage which includes the actual placing of the shipment into vessels ready to be carried beyond the state.

9151

A state may regulate the parking of taxicabs and the rate of charges within the state, although, at times, such vehicles may be used in interstate commerce.152

There is nothing in the federal law which would make invalid a state law which permits the recovery of damages for failure to deliver or transport interstate freight in a reasonable time, such law being merely a statement of the common law on the subject and being in no way in conflict with any provision of the Interstate Commerce Act.153

A municipal ordinance compelling an express company to give a bond conditioned "for the safe and prompt delivery of all baggage," etc., intrusted to it or its agents, in so far as it applied to interstate commerce, was held to be void, because, as said in the opinion of the court: "Congress has ex

151 Oregon R. R. Com. v. Worthington, 225 U. S. 101, 56 L. Ed. 1087, 32 Sup. Ct. 653. Requiring double decked cars on interstate shipments is an illegal regulation by a state; Stanley v. Wabash, St. L. & P. R. Co., 100 Mo. 435, 13 S. W. 709, 8 L. R. A. 549; where is found numerous citations of authorities.

152 Yellow Taxicab Co. v. Gaynor (Taxicab cases), 82 Misc. 94, 143 N. Y. Supp. 279.

153 Western & A. R. Co. v. Symmerour, 139 Ga. 545, 77 S. E. 802; Oliver v. Chicago, R. I. & P. R. Co., 89 Ark. 466, 117 S. W. 238, holding law valid as to intrastate and invalid as to interstate commerce; Yazoo & M. V. R. Co. v. Keystone Lumber Co., 90 Miss. 391, 43 So. 605, no interstate commerce was here moved; Zetterberg v. Great N. Ry. Co., 117 Minn. 495, 136 N. W. 225, decided before Hardwick Elevator case, note, supra. Statutes providing penalties for unreasonable delay of intrastate ship

ments valid, Lexington Grocery Co. v. So. Ry. Co., 136 N. C. 396, 48 S. E. 801; Stone v. Atlantic C. L. Ry. Co., 144 N. C. 220, 56 S. E. 932, and cases cited; Rollins v. Seaboard A. L. Ry., 146 N. C. 218, 59 S. E. 671; but carrier relieved if conditions causing delay results from causes for which it is not responsible, Garrison v. So. Ry. Co., 150 N. C. 575, 64 S. E. 578. Discrimination in order of shipments prohibited: Hill & Morris v. St. L. S. W. Ry. Co. of Texas, 75 S. W. 874, reversed on the construction of the statute, St. L. S. W. Ry. Co. of Texas v. Hill & Morris, 97 Tex. 506, 80 S. W. 368; Tex. C. R. Co. v. HannayFrerichs & Co. (Tex. Civ. App.), 130 S. W. 250. Delay caused by not shipping on Sunday no ground for recov ering penalty, Cram v. Chicago, B. & Q. R. Co., 84 Neb. 607, 122 N. W. 31, rehearing denied 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas.. 170.