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§ 24. (22). The supreme court on the three classes of commerce cases. The supreme court in denying the power of a state to regulate tolls upon an interstate bridge without the assent of congress, reviewed its decisions upon the construction and application of the commerce clause of the constitution, and said they were divisible into three distinct classes.1 The first, where the power of the state was exclusive, including the construction of highways, turnpikes, railroads and canals, between points in the same state, and their regulation for public use, the operating of bridges over navigable streams and regulating navigation over internal waters which did not by themselves or in connection with other waters form a continuous highway for interstate or foreign commerce. In the second class were included the cases of concurrent jurisdiction of the states, and wherein it is not the existence, but the exercise of the power of congress which is incompatible with the exercise of the same power by the states. In the third class the court included those cases where the power of congress was exclusive, and it was not the exercise but the existence of the power in congress which excluded the power of the state. The first class requires no distinct consideration. The dividing line between the second and third class has, however, been questioned in a number of cases, as will be seen in the succeeding sections.

§ 25 (23). The concurrent state power.-The concurrent jurisdiction of the states, as it is called, may be exercised in the second of the classes of cases mentioned in the preceding section, where it is not the existence but the exercise of the power of congress which is incompatible with the exercise of the state


Thus, the regulation of pilots has an intimate connection with commerce, and discriminating state laws might be enacted on the subject, yet the nature of the power is such that it is likely to be best provided for by the legislative discretion of the several states, adapted to local needs.2

In this essentially local class are the state inspection laws,3 state quarantine laws, and laws regulating the improvement

1 Covington, etc. Bridge Co. v. Kentucky, 154 U. S. 204 (1894), 38 L. Ed. 962.

2 Cooley v. Port Wardens, supra. 8 See § 10, supra.

4 Morgan's, etc., Co. v. Louisi


of navigable waters within the jurisdiction of a state, or the use of bridges over such waters which have been sustained. In the Mobile harbor case cited, the court said that perhaps some of the divergent views noticed upon this question of state power among former judges, may have arisen from not always bearing in mind the distinction between commerce as strictly defined and its local aids or instrumentalities, or measures taken for its improvement. In the Chicago case the court sustained the state control of the construction, repair and regulation, and use of the bridges over the Chicago river, saying that until congress acted, the power of the state over the bridges was plenary.

In the same class are state laws regulating wharves, piers and docks, the construction of bridges, and establishing ferries over navigable rivers within state jurisdiction. Local regulations, however, cannot impose a tax or charge upon interstate commerce. Thus, while a state can exact a toll or compensation for a specific improvement of a navigable water within its jurisdiction, it cannot exact a license for the use of navigable waters, which is not a charge for any specific improvement.


§ 26 (24). The state power as to interstate telegraph companies. A telegraph company doing an interstate business is engaged in interstate commerce, and is so recognized by act of congress. It cannot therefore be excluded by a state, nor can its interstate messages be taxed by the state.


A state cannot, as a condition of authorizing a foreign telegraph company to do local business in the state, exact a charana, 118 U. S. 455 (1886), 30 L. Ed. 237. Infra, § 36.

1 County of Mobile v. Kimball, 102 U. S. 691 (1880), 26 L. Ed. 238. 2 Escanaba Co. v. Chicago, 107 U. S. 678 (1882), 27 L. Ed. 442.

& Packet Co. v. Aiken, 121 U. S. 444 (1887), 30 L. Ed. 976.

4 Cardwell v. Am. Bridge Co., 113 U. S. 205 (1885), 28 L. Ed. 959. As to interstate bridges and ferries and cases cited, see Gloucester Ferry Co. Case, 114 U. S. 196 (1885), 29 L. Ed. 158; St. Clair

County v. Interstate Sand & Car Transfer Co., 192 U. S. 454 (1904), 48 L. Ed. 518.

Huse v. Glover, 119 U. S. 543 (1886), 30 L. Ed. 487; Sands v. Manistee River Imp. Co., 123 U. S. 288 (1887), 31 L. Ed. 149.

• Harman v. Chicago, 147 U. S. 396 (1893), 37 L. Ed. 216.

7 Act of July 24, 1866, Comp. Stats. 5263; Pensacola Tel. Co. v. W. U. Tel. Co., supra.

8 Telegraph Co. v. Texas, 105 U. S. 460 (1881), 26 L. Ed. 1067.

ter fee of a given percent of the entire authorized capital stock of the company, as that would be in effect a burden and tax upon the company's interstate business and on its property located or used outside of the state and in such a case, it is immaterial that the state disclaims the purpose of obstruct The state may. ing or embarrassing interstate commerce.1 however, make regulations with respect to building poles, location of wires, and all necessary appliances, which the convenience of the community may require. It can tax intra state messages, and municipalities may charge a reasonable rental for occupation of streets with poles. The state can prescribe how messages shall be delivered within the state, whether received from within or without the state, as this is the exercise of the police authority of the state in its jurisdiction; but on the contrary, the state cannot prescribe how messages received within, but delivered without the state, shall be delivered.*


Interstate commerce is not unconstitutionally regulated by a state statute of Michigan under which, as construed by the state courts, a telegraph company cannot limit its liability for its negligent failure to deliver a telegram addressed to a person in another state. Such a regulation would be valid if rested upon the common law of the state and is no less valid because made by a state statute."

§ 27 (25). Concurrent powers in interstate railroad transportation. Not only is the rule established that the state, in

1 Western U. Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355 (1910).

2 Telegraph Co. v. Philadelphia, 190 U. S. 160 (1903), 47 L. Ed. 995.

3 Western U. Tel. Co. v. James, 162 U. S. 650 (1896), 40 L. Ed. 1105.

4 Western U. Tel. Co. v. Pendleton, 122 U. S. 347 (1887), 30 L. Ed. 1187. The Virginia statute imposing penalty for failure to deliver telegraph messages has no operation in limits of Norfolk Navy Yards. Western U. Tel. Co.

v. Childs, 214 U. S. 274, 53 L. Ed. 994, citing and following Fort Leavenworth R. R. Co. v. Love, 114 U. S. 525, 29 L. Ed. 264 (1885). In Ivy v. Western U. Tel. Co., 165 Fed. 371, E. D. of Ark. (1908), the Arkansas statute allowing damages for mental anguish, etc., in actions against telegraph companies, was held valid, though incidentally affecting interstate transactions.

5 Western U. Tel. Co. v. Commercial Union Co., 218 U. S. 408, 54 L. Ed. 1088 (1910).

the absence of congressional action, may regulate local matters which relate to interstate or foreign commerce, but the state power of regulation has been further extended and held to include a wide field in the exercise of its lawful power over the relations of persons and property in its jurisdiction. The federal power of regulation may be exercised without legislation, as well as with it, and by inaction, congress in effect adopts the local law. State laws regulating the relative rights and duties of persons within the jurisdiction of the state are therefore effective upon interstate carriers. The court said in the case cited that it is to this law that persons within the scope of its operation look for the definition of their rights and for the redress of wrongs. "The failure of congress can be construed only as an intention not to disturb what exists, and is the mode by which it adopts, for cases within its power, the rule of the state law, which, until displaced, covers the subject.” 2

Upon this principle the state regulation, in the absence of · congressional action, of the manner in which interstate trains shall approach dangerous crossings and the giving of signals and control of trains under such circumstances, has been sustained, yet, it was said in the same opinion that statutes requiring the speed of such trains to be checked at all crossings, where numerous and near together, might be practically destructive to the successful operation of passenger trains and a direct burden upon interstate commerce.


The effect of the enactment of congress upon the police power of the state is illustrated by the ruling of the supreme court prior to the enactment of the interstate commerce act holding valid a statute of Iowa requiring each railroad company annually, in the month of September, to establish passenger and freight rates, and on the first day of October following to put up at all the stations on its road a printed copy of such rates and cause it to remain posted during the year, notwithstand

1 Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508.

2 Sherlock et al. v. Alling, 93 U. S. 99 (1876), 23 L. Ed. 819; Chicago, etc., R. Co. v. Solan, 169 U. S. 133 (1898), 42 L. Ed. 688.

3 Southern R. R. Co. v. King, 217 U. S. 324, 54 L. Ed. 868 (1910), affirming 160 Fed. 332, C. C. A. 5th Cir.

4 Railroad Co. V. Fuller, 17 Wall. 560.(1873), 21 L. Ed. 710.

ing the act of congress of 1866 authorizing the interstate carriage of freight. The state statute was held to be simply a police regulation, and that even though it did effect commerce, the question would arise whether it did not fall within that class of cases where state legislation was sustained in the absence of congressional legislation. A similar statute came be fore the court from Texas after the passage of the interstate commerce act, although the statute had been enacted before.2 The court said that the state law and the national law operated upon the same subjectmatter and prescribed different rules, and that the state statute must therefore give way.

§ 28 (26). State Sunday laws and interstate transportation.-Included in this range of the concurrent state power regulating persons within the jurisdiction and affecting interstate commerce are Sunday laws, prohibiting the running of freight trains on Sunday. The court said such a law merely established a rule of civil conduct applicable to all freight trains, domestic as well as interstate, and to all similar traffic.


The court in this case sustained a Georgia statute and quoted from the opinion of the supreme court of that state which said that the legislature had the right to enforce a day of rest as a civil duty, although men might differ as to the religious duty.



§ 29 (27). State laws as to qualifications of employes and safety of the public.-The principle has been extended to include laws which establish a standard of qualifications for railroad employes on interstate as well as local trains, for example, color blindness of engineers. The court said in the latter case that it was a principle fully recognized that whereever there is danger to the public in the conduct of a business, it was not only within the power, but the plain duty of a state to make provision against accidents likely to follow. State laws requiring the heating of passenger cars, requiring guard

1 Infra, § 42.

2 Gulf, Colo. etc. R. Co. v. Helfley, 158 U. S. 98 (1895), 39 L. Ed. 910.

• Hennington v. Georgia, 163 U. S. 299 (1896), (Fuller, C. J. and

White, J., dissenting), 41 L. Ed. 166.

4 Smith v. Alabama, 124 U. S. 465 (1888), 31 L. Ed. 508; Nashville, etc. R. Co. v. Alabama, 128 U. S. 96 (1888), 32 L. Ed. 352.

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