8

2

posts on railroad bridges and trestles,1 the protection of surface crossings in cities, and the regulation of speed in municipal limits, are sustained upon the same principle. The court said that travelers on interstate trains are as much entitled, while within a state, to the protection of that state as those who travel on domestic trains.

Congress has also enacted legislation, as will be seen hereafter for the safety of employes and the prevention of accidents in interstate commerce. These acts, as the Accident Act, infra, and the Safety Act, infra, are by their terms applicable to all railroads engaged in interstate commerce. From the nature of the subject it is difficult to say when the enactment of such legislation by congress so covers the ground as to make inoperative state legislation bearing upon the same subject. Under the ruling laid down by the supreme court in the live stock cases (see infra, § 35), the state statute enacted for the protection of employes and travelers within its jurisdiction must be taken as valid, unless the same subject is taken under direct national supervision in the exercise of the lawful power of congress over interstate commerce.

Under this principle it was held that a state could lawfully prescribe a minimum of three brakemen for freight trains of more than twenty-five cars operated in the state, and that such a regulation was valid when applied to a foreign railway when engaged in interstate commerce. The court said that such a statute, enacted for the safety of all engaged in the business, was not in any sense a regulation of interstate commerce.*

§ 30 (28). State laws concerning separation of races in interstate traffic.-A state can regulate the separation of races in railroad transportation on trains within the state," but it

1 N. Y., N. H. & H. R. Co. v. New York, 165 U. S. 628 (1897), 41 L. Ed. 853.

2 Southern R. R. Co. v. King, supra.

Erb v. Morasch, 177 U. S. 584 (1900), 44 L. Ed. 897.

4 Chicago, R. I. & Pac. R. R. Co. v. Arkansas, 219 U. S. 453, 55 L.

Ed. 412.

(1911), affirming 86 Ark.

L., N. O. & T. R. Co. v. Mississippi, 133 U. S. 587 (1890), 33 L Ed. 784, distinguished Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547; C. & O. R. Co. v. Kentucky, 179 U. S. 388, 45 L. Ed. 244; Plessy v. Ferguson, 163 U. S. 537 (1896), 41 L.

cannot determine whether white and colored interstate passengers shall be compelled to share their cabin accommodations on steamboats, as that is a question of interstate commerce to be determined by congress alone. A statute of Louisiana enacted in 1869, prohibiting discrimination on account of race, was held inapplicable to a Mississippi steamboat engaged in commerce between the states; while the state laws providing for separate cars within the state, were sustained.

Congressional inaction is equivalent to a declaration that an interstate carrier may by its own regulations separate white and colored passengers.2

§ 31 (29). Limitation of state power in stoppage of through trains. The limitation of the state's power of regulation in relation to interstate commerce is illustrated by the rulings of the supreme court upon state laws requiring the stoppage of trains at certain stations.

A statute of Minnesota requiring every railroad company to stop all regular trains at county seats, but providing that it should not apply to other railroad trains entering the state from another state, or to transcontinental trains from another state, was sustained as to a train connecting with an interstate train and carrying mails and some interstate passengers for that train. This case, however, was decided upon its special

Ed. 256. In McCabe v. A. T. S. F. R. Co., 186 Fed. 966 (1911), C. C. A. 8th Circuit, the court affirmed the dismissal of the bill of complaint filed by negro citizens of Oklahoma in seeking to enjoin the railway companies from obeying the Oklahoma statute (Laws of Okla. p. 271), requiring railroad companies to provide separate coaches for the races equal in all points of comfort and convenience alleging that the defendants were not furnishing cars and waiting rooms for the negro race equal to those furnished for white race. The court held that the statute must be construed to apply to intrastate commerce only, and when

so construed it was not violative
of the commerce clause of the
federal constitution. There was
no obligation on the railroad to
hold the sleeping cars, dining or
chair cars for the separate use of
either race, and the equal protec-
tion of the laws was not denied by
their failure to do so. Equality of
service did not mean identity of
service. Sanborn J. dissenting.
1 Hall v. DeCuir, supra.

2 Chiles v. C. & O. R. R., 218 U. S. 71, 54 L. Ed. 936 (1910), affirming 125 Ky. 299.

8 Gladson v. Minnesota, 166 U. S. 427 (1897), 41 L. Ed. 1064; L. S. & M. S. R. R. v. Ohio, 173 U. S. 285, 43 L. Ed. 702 (1899).

facts, as the train was run wholly within the state. A statute of Illinois was held invalid which required all regular passenger trains to stop a sufficient length of time at county seats to receive and let off passengers with safety, as a direct interference with interstate traffic. This statute was held invalid both as to a county seat station which was three and one-half miles from the direct road1 and also as to a county seat station which was on the direct line.2 In the case last cited the cart reviewed the previous decisions and said that none of them were opposed to the principle that, after all local conditi ns had been adequately made, railways had the legal right to adopt special provisions for through traffic, and that legislative interference therewith was unreasonable and an infringement upon the constitutional guaranty of the freedom of interstate commerce.

In determining the validity of a state order, requiring the stoppage of interstate railroad trains, the supreme court will consider the adequacy of the local facilities existing at such station, as their existence is involved in the determination of the federal question whether the order does or does not directly regulate interstate commerce.3

1 Illinois Central R. Co. v. Illinois, 163 U. S. 142 (1896), 41 L. Ed. 107.

2 Cleveland, etc., R. Co. v. Illinois, 177 U. S. 514 (1900), 44 L. Ed. 868.

8 In Atlantic Coast Line R. R. Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230 (1907), reversing 74 S. C. 80. The court held that a state order requiring a railroad company to stop, on signal, two of its fast mail trains running between Jersey City and Tampa, Florida, at a small town in South Carolina, which was also the junction point with a small branch road was void, where, in addition to several local trains daily, the own was furnished daily one lower through train, each way.

The order of the supreme court of the state granting a mandamus compelling the ailroads to stop the trains was held reviewable on writ of error. In Herndon v. C., R. I. & P. R. R. Co., 218 U. S. 135, 54 L. Ed. 970 (1910), a statute of Missouri requiring the stoppage of interstate trains at junction points was held an unnecessary and unlawful burden upon interstate commerce, when ample facilities for the traveling public were already provided. In this case the court affirmed a decree enjoining the secretary of state from revoking the company's license and right to do local business because of bringing suit in the federal court.

§ 32 (30). State regulation of contractual relations of interstate railroad and shippers.-The contract relations of interstate railroads with their shippers must be determined, in the absence of congressional legislation, by the local law of the place where the contract is made. State statutes regulating the contractual relations and changing the common-law rules controlling such relations are within the scope of the state's regulating power. Thus statutes permitting the carrier to limit his common-law liability to a stipulated valuation, regulating the effect of an agreement limiting liability to the carrier's own line in a shipment to be made over other lines, and also prohibiting contractual exemption from any common-law liability of the carrier, have been sustained. In the Hughes case it was said by the supreme court, in allowing a judgment against an interstate carrier in excess of the amount limited in the bill of lading on the ground that no federal right was denied, that although congress had made it obligatory to provide proper facilities for the interstate carriage of freight and had prevented carriers from obstructing continuous shipments on interstate lines, there was no sanction of agreements limiting liability by stipulation, and until congress had legislated upon it there was no valid objection to the states enforcing their own regulations upon the subject, although they may to that extent affect interstate contracts of carriage.2

1

1 Pennsylvania R. Co. V. Hughes, 191 U. S. 477 (1903), 48 L. Ed. 268.

2 Richmond, etc., R. Co. v. Tobacco Co., 169 U. S. 311 (1898), 42 L. Ed. 759. A contract for through transportation from Oklahoma to New York was held subject to the Oklahoma law to the extent that such law was not an invasion of the exclusive rights of congress, and under this law the exemption of the bill of lading was not binding upon the shipper in the absence of his assent in writing. Erie R. Co. v. Pond Creek Mill & Elevator Co., C. C. A. 7th Circuit,

162 Fed. 878 (1908). While con gress has not legislated upon the forms of bills of lading in interstate commerce, it has, by the enactment of the Harter Act, U. S. Compiled Statutes, 1901, p. 2946, legislated concerning the forms of maritime bills of lading and controlling the insertion of stipula tions therein limiting the responsibility of carriers. See case of The Delaware, 161 U. S. 459 (1896), 40 L. Ed. 771. By provision of the Act of 1906, known as the Railroad Rate Bill of that year, congress has regulated the issue of bills of lading, fixing the responsibilty

§ 33 (31). State regulation under rules of common law in state courts. It is immaterial, in this exercise of the state's lawful power over persons and property within its jurisdiction, whether the enforcement by the state of its power in the regulation of relative rights and duties of persons and corporations within its limits is enacted into a statute or results from the rules of law enforced in the state courts. The state, said the supreme court, has a right to promote the welfare and safety of those within its jurisdiction by requiring carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding.

The penalizing of the failure of a common carrier to adjust and pay within a specified time claims for loss or damage under state law does not unlawfully interfere with interstate commerce, even as applied to shipments from without the state, where the statute is construed by the state court as affecting only the liability of carriers doing business in the state for property lost or damaged while in their possession.1

In the absence of action by congress or the Interstate Commerce Commission, a railway company may be compelled by mandamus to resume the transfer and return of cars loaded and unloaded from the line of a connecting carrier to a flour mill and elevator of a shipper, upon request and demand of the shipper and the payment of customary charges.2

On the other hand, a statute which is calculated to impose heavy penalties for trivial, accidental and unintentional violations of duty, as the failure of a railroad company to furnish cars to a shipper within a certain number of days after the latter's requisition in writing, in the sum of $25 a day for each car not furnished and admitting of no excuse except as arising from wars or other calamity, is an unconstitutional regulation of interstate commerce.3

upon the initial carrier; Held valid by the supreme court. See infra, § 407.

1 Atlantic C. & L. P. Cp. v. Mazurski, 216 U. S. 122, 54 L. Ed. 411 (1910).

2 Mo. Pac. R. R. Co. v. Laraby

Flour Mill Co., 211 U. S. 612, 53 L.
Ed. 352 (1908).

3 H. & T. C. R. Co. v. Mayes, 201 U. S. 321, 50 L. Ed. 772 (1906), reversing 36 Tex. Civ. App. 606, 609. Also St. Louis S. W. Ry. Co. v. Arkansas, 217 U. S. 136, 54 L. Ed.