Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 221.: State regulation of railroads and other common carriers, and of their business, when an interference with interstate commerce.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 221.: State regulation of railroads and other common carriers, and of their business, when an interference with interstate commerce.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 221.

State regulation of railroads and other common carriers, and of their business, when an interference with interstate commerce.—

The railroads, the express companies, the telegraph companies, and other corporations, which establish and furnish the means and facilities for transportation and communication between places, in these days of gigantic combinations, do not and cannot limit their operations by State lines. In the prosecution of their business, most of them traverse more than one State; and by partnerships between connecting lines trunk lines of railroads are formed, which extend from ocean to ocean; whereas, the Western Union Telegraph Company covers the entire country, its electric arteries penetrating every nook and corner. Naturally, their business is partly interstate, and partly intra-state, while the respective corporations are creatures of State legislation. The corporations, and their business are subject to reasonable police regulations. But the query is appropriate: by which government shall these regulations be established and enforced? The answer is plain, although the application of the principle involved to the particular case may occasion some difficulty. It is that, so far as the regulation interferes with or imposes a burden upon interstate commerce, and involves the exercise of an extra-state power of control over the business of these corporations, it is only valid, if it be exercised by the national government; and it is unconstitutional, if it is exerted by a State government. The police regulation of these corporations, and of their business by a State government, must be confined to those local regulations, which, while they interfere with commerce more or less materially, may be enforced without giving to the State authorities an extra-territorial power of control over these corporations and their business.

The principle, underlying this distinction, is clear enough and easy of comprehension; but it is not always clear, that the courts, in applying this distinction to concrete cases, have adhered to it in deciding, whether a State regulation did or did not constitute an invalid interference with interstate commerce. For example, it has been held in some of the Southern States, that a State statute, which prohibits the running of freight trains on Sunday, did not interfere with interstate commerce, in violation of the United States constitution, although it was enforced against trains which were exclusively laden with freight, which was being transported across the State from one State to another.1 It is true that, in enforcing such a regulation against “through” freight, the State was not exercising any extra-territorial control over interstate commerce; but it certainly was interfering with the expedition of the interstate business of the railroad. And if the stopping of interstate freight trains on Sundays, by State regulation, was no interference with interstate commerce, a similar prohibition of passenger trains on Sunday would be equally unobjectionable. Elsewhere1 the constitutionality of Sunday laws in general is fully discussed from the standpoint of religious liberty, to which the reader is referred for a consideration of that phase of the present question.

On the other hand, it has been held that a State law, which requires a railroad to provide separate coaches or cars to be furnished for white and colored passengers, is an unconstitutional interference with interstate commerce, if it is made to apply to passengers, who are to be transported from some point within the State to a point of destination in another State.2

If a State statute prohibits a railroad from providing by contract for its exemption from liability for negligence, it is constitutional provided the statute is not applied to contracts, made outside of the State, for transportation from one State into or through another.3

On the question, whether railroad service, which is known as “switching,” is to such an extent a part of interstate commerce, as that it cannot be subjected to State regulation, where interstate traffic is involved, has been answered in the affirmative by the Texas court,4 and in the negative by the United States Circuit Court.5

It is held not to be in violation of the interstate clause of the constitution, for a State to require by law the stopping of certain or of all trains at certain stations;1 to require locomotive engineers to submit to examinations for color blindness and to pay the cost of the examination, even though they are in charge of locomotives which are employed in interstate traffic;2 to prohibit any railroad from acquiring the control of any parallel or competing lines.3 So, also, has it been held not to be an interference with interstate commerce for a State statute to prohibit the sale of railroad or steamboat tickets by any but the authorized agents of the carrier which issues them.4

The national government has the exclusive power of regulating and controlling the immigration of foreigners into this country, or into any part of it. Naturally, the courts have held that no State can exercise this power, whether Congress has acted or not. A California statute, which prohibited the immigration of the Chinese into the State, and regulated their removal from place to place within the State, was declared to be unconstitutional.5

A State may authorize by statute the garnishment of an interstate railroad, without being charged with an unlawful interference with interstate commerce.6

In many of the cities, particularly in the Southern States, it is deemed to be prejudicial to the public health to permit the sale of fresh meats, vegetables, fruits and other perishable goods, in any other place than the public market; and the general constitutionality of statutes and ordinances, which prohibit their sale elsewhere, has been uniformily sustained.1 The city of New Orleans has had such an ordinance for many years. But it has been held that an ordinance of the city of New Orleans, which prohibited the railroads from permitting the sale of such perishable food from the cars on its tracks, was an unjustifiable interference with interstate commerce, so far as it was made to apply to articles brought from another State;2 so, likewise, in a prohibition State, to prohibit the transportation of liquors to a point within the State, unless the railroad has first obtained a certificate from some State official.3

Frequently, it is a mooted question, whether a particular transportation of goods or passengers is not a case of interstate traffic. In the first place, the mere fact, that the line of the railroad extends through two or more States, does not make its transportation of goods or passengers an interstate transaction, if the transportation is from one point to another within the same State.4 And this is likewise true, although, in making such a transportation between two points within the same State, it must be made over a part of the track of the railroad which lies in another State. This is, nevertheless, a case of intra-state transportation, and subject to State regulation.5 And where a railroad, whose line of road is wholly within the boundaries of a State, engages itself, as a link in any extensive trunk line, to transport goods to the end of its line, there to be delivered to the connecting road—the entire transportation of the goods or passengers to a place of destination beyond the State, being provided for by a contract of a connecting road outside of the State, with which the transportation began,—the local road, in the transportation of such goods or passengers, is not so far engaged in interstate commerce, as that it is not subject to the police regulations of the State.1

It has been held recently in South Carolina, in the case of a shipment of whisky into the State, in violation of the State Dispensary Law but for the personal use of the consignee, that the interstate transportation had not ceased, and that the goods had not come within the jurisdiction of the State laws, when the consignee was transporting the case of whisky to his home in his own buggy.2

The communication or intercourse by telegraph messages, between persons residing or located in different States, is undoubtedly interstate commerce.3 But, nevertheless, it has been held that there is no unconstitutional interference with interstate commerce, if a State statute regulates the transmission of telegrams, by requiring reasonable facilities for the dispatch of business;4 or by imposing a specific penalty for the non-delivery of a telegram, which shall be recovered either by the sender5 or by the person to whom the telegram was addressed.6 And where the penalty is recoverable by the addressee of the non-delivered telegram, its recovery does not constitute any impairment of the contract of the sender with the telegraph company, which provides against or limits the liability for mistakes in transmission.1 It has also been held that State regulations of telephone companies, for the protection of the local public from threatened danger, did not violate the interstate commerce clause of the Federal constitution.2

Elsewhere3 the general subject of the police regulation of prices and charges, for the prevention of extortion, has been very fully discussed, apart from its effect upon interstate commerce, when it is instituted by the State governments. It remains to refer to these regulations from the standpoint of interstate commerce; and, particularly, to the rates and charges of railroads and other common carriers which are engaged in part in an interstate traffic. The principle controlling these questions is clear, and is the same which has guided the courts in their determination of the scope of the prohibitive influence of the interstate commerce clause of the national constitution. And, when applied to the particular case under inquiry, it declares that the State laws, which undertake to regulate the rates of fare and freight of railroads and other common carriers, are unconstitutional, so far as they are made to apply to the interstate traffic of the railroads. To regulate the rates of fare and freight of railroads, charged by a railroad for transportation from a point in one State to a point in another, is an unconstitutional interference with the national power of control over commerce.4 And, although it has been held that a railroad, in transporting goods or passengers from one point to another in the same State, is not engaged in interstate traffic, although the route between the two points is laid across two States, so that such business is within the police regulation of the State;1 the cases are at variance, whether the State railroad commissioners can under those circumstances fix the charges for transportation between the two points. One case denies the power to do so;2 the other case holds that it is not a case of interstate commerce, and that it is within the power of the railroad commissioners to regulate the rates and charges of transportation between the two points within the State, although the route lies in part through another State.3 The latter view is believed to be the correct one.

The State may also regulate the price charged for mileage books, although the railroad line extends beyond the State. But the mileage tickets so sold may be limited by the company to use within the State; and the fact, that they may be tendered to a point without the State, was declared not to make the State law an interference with interstate commerce.4

The State courts seem to concur in the opinion that a State does not interfere with interstate commerce, if it imposes a penalty upon a common carrier for refusing to deliver goods to a consignee within the State, upon tender of all the charges for freight which the bill of lading calls for, or for detaining the goods for an unreasonable time for any unfounded cause, even though the goods have been shipped from another State.1 And the same conclusion was reached, where a State law prohibited railroads doing business within the State from increasing their rates, during the course of transportation, above what were charged when the goods were tendered to them.2 But the Supreme Court of the United States has held such a State regulation to be an interference with interstate commerce, wherever it is applied to interstate freight.3 It is clear enough, that a State statute cannot provide for the repayment of overcharges on interstate freight, which involved unjust discrimination between points or persons. That is a matter which belongs to the exclusive jurisdiction of the United States government.4

The United States government, in the exercise of its power to regulate commerce with foreign nations and between the States, may establish maximum and minimum rates of fare and freight between which all common carriers, doing an interstate business, must keep their charges. In the establishment of the interstate commerce commission, the commission was empowered to regulate railroad traffic, so as to prevent discrimination between points and persons, in the fixing of tariff rates by the railroads, but the power was not given to the commission to establish maximum or minimum or absolute rates of fare and freight; and it was held that the commission could not indirectly attain this control of the charges of the railroads, by first determining what are reasonable rates, and secure a peremptory order from the courts, that the railroads must conform to the commission’s determination of what are reasonable charges.1

The constitutionality of State regulations of the charges of grain elevators,2 has been attacked on the ground that, since they constitute one link in the transportation of grain from one State to another, the regulation of their charges involved an unconstitutional interference by the State with interstate commerce. But the Supreme Court of the United States, with a divided court, denied this contention, and sustained the constitutionality of this exercise of the police power of the States.3 And in Nebraska, it has been held that, as long as Congress does not act in the matter, the States have the power to prevent telegraph companies from discriminating between places in their rates of interstate service.4

[1]State v. Southern Ry. Co., 119 N. C. 814; Hennington v. State, 90 Ga. 396; State v. Railroad Co., 24 W. Va. 783. But see contra, Norfolk & W. Ry. Co. v. Commonwealth, 88 Va. 95.

[1]See ante, § 68.

[2]State v. Hicks (La.), 11 So. 74; Anderson v. Louisville & N. Ry. Co., 62 Fed. 46.

[3]Solan v. Chicago, M. & St. P. Ry. Co., 95 Iowa, 260; 63 N. W. 692; McCann v. Eddy (Mo.), 27 S. W. 541.

[4]Fielder v. Mo. K. & T. Ry. Co. (Tex. Civ. App.), 42 S. W. 362.

[5]Chicago, M. & St. P. Ry. Co. v. Becker, 32 Fed. 849; State of Iowa v. Chicago M. &. St. P. Ry. Co., 33 Fed. 391.

[1]State v. Gladson, 57 Minn. 385; Lake Shore & M. S. Ry. Co. v. State, 8 Ohio C. C. 220.

[2]Smith v. State of Alabama, 124 U. S. 465; Nashv. C. &. St. L. Ry. Co. v. Alabama, 128 U. S. 96.

[3]Louisville & N. Ry. Co. v. Commonwealth (Ky.), 31 S. W. 476.

[4]Burdick v. People, 149 Ill. 600, 611; State v. Corbett, 57 Minn. 345; People v. Warden of City Prison, 50 N. Y. S. 56; 26 App. Div. 228. On the general subject of the constitutionality of the so-called anti-ticket scalper’s law, see ante, § 123.

[5]Ex parte, Ah. Cue, 101 Cal. 197.

[6]Landa v. Holck, 129 Mo. 663.

[1]See ante, § 126.

[2]Spellman v. City of New Orleans, 45 Fed. 3; Ill. Cent. Ry. Co. v. City of New Orleans, 45 Fed. 3.

[3]Rhodes v. State of Iowa, 170 U. S. 412; reversing s. c. 90 Iowa, 496.

[4]Campbell v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 587.

[5]Lehigh Val. Ry. Co. v. Pennsylvania, 145 U. S. 192; Seawell v. Kansas City, Ft. S. & M. Ry. Co., 119 Mo. 222.

[1]Ft. Worth & D. C. Ry. Co. v. Whitehead, 6 Tex. Civ. App. 595.

[2]State v. Holleyman (S. C. ’99), 33 S. E. 366.

[3]Reed v. Western Union Tel. Co., 59 Mo. App. 168.

[4]Connell v. W. U. Tel. Co., 108 Mo. 459.

[5]Western Union Tel. Co. v. Tyler, 90 Va. 297; Western Union Tel. Co. v. Powell, 94 Va. 268; Western Union Tel. Co. v. Mellan, 100 Tenn. 429.

[6]Western Union Tel. Co. v. James, 162 U. S. 650; s. c. 90 Ga. 254; Western Union Tel. Co. v. Howell, 95 Ga. 194; Western Union Tel. Co. v. Bright, 90 Va. 778; Butner v. Western Union Tel. Co., 2 Okl. 234 (37 P. 1087).

[1]Western Union Tel. Co. v. James, 162 U. S. 650.

[2]Michigan Telephone Co. v. City of Charlotte, 93 Fed. 11.

[3]See, ante, §§ 96, 97, where the general subject is treated, and § 212, where the regulations of charges of corporations are more particularly discussed.

[4]Kaiser v. Ill. Central R. R. Co., 18 Fed. 151; 5 McCrary, 496; Louisville, etc., R. R. Co. v. Tenn. R. R. Commissioners, 19 Fed. 679; Illinois Central R. R. Co. v. Stone, 20 Fed. 468; Pacific Coast S. S. Co. v. Cal. R. R. Commissioners, 18 Fed. 10; Carton v. Ill. Cent. R. R. Co., 59 Iowa, 148 (44 Am. Rep. 672); s. c. 22 Am. Law Reg. (n. s.) 373, note; Commonwealth v. Housatonic R. R. Co., 143 Mass. 264; 9 N. E. 547, note; Southern Pac. Ry. Co. v. Haas (Tex.), 17 S. W. 600. It is different, however, where a railroad has entered into a contract with a city government, that it will not discriminate in the rates of fare and freight against the inhabitants of that city. Under such a contract, a city ordinance, declaring certain established rates to be discriminative against the city, is not an attempt to interfere with interstate commerce, but the initial step in the enforcement of the railroad’s contractual obligation. Iron Mountain Ry. Co. of Memphis v. City of Memphis, 96 Fed. 113.

[1]See ante, p. 1056 of present section.

[2]State v. Chicago, St. P. v. M., etc., Ry. Co., 40 Minn. 267.

[3]Commonwealth v. Lehigh Val. Ry. Co., 129 Pa. St. 308.

[4]Dillon v. Erie Ry. Co., 43 N. Y. S. 320; Smith v. Lakeshore & M. S. Ry. Co., 114 Mich. 460.

[1]Gulf, C. & S. F. Ry. Co. v. Nelson, 4 Tex. Civ. App. 345; 23 S. W. 732; Bagg v. Wilmington C. & A. Ry. Co., 109 N. C. 279.

[2]Chicago, St. L. & P. Ry. Co. v. Wolcott, 141 Ind. 267.

[3]Gulf C. & S. F. Ry. Co. Hefley, 158 U. S. 98. The specified statute under inquiry was the Texas statute, which prohibited, under a penalty, the charging of more than the rate which was stipulated in the bill of lading.

[4]Gatton v. Chicago, R. I. & P. Ry. Co., 95 Iowa, 112.

[1]Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184; affirming s. c. 21 C. C. A. 54; 74 Fed. 715.

[2]For a full discussion of their constitutionality from the standpoint of the personal liberty of the persons who were engaged in the business, see ante, §§ 96, 97.

[3]Budd v. People, 143 U. S. 517; Brass v. State of North Dakota, 153 U. S. 39’.

[4]Western Union Tel. Co. v. Call Pub. Co. (Neb.), 78 N. W. 519.