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to enact a uniform schedule of charges, and that the authority of the state was limited to fixing tolls of such channels of commerce as were exclusively within its territory.1 The court in reviewing the cases said, that in none of the subsequent cases had any disposition been shown to limit or qualify the doctrine. laid down in the Wabash case.
The freedom of interstate commerce from state control forbids any legislation discriminating against the products of other states. This principle has been applied to statutes imposing discriminating taxes or other discriminations against importations from other states in case of the liquor traffic. Thus, a Michigan statute imposing a specific tax on persons engaged in the business of selling liquors at wholesale or soliciting or taking orders for liquors to be shipped into the state, not having their usual. place of business in the state, without imposing the same tax upon persons engaged in the liquor business in reference to liquors manufactured in the state, was held void. It was claimed that this could be sustained as a tax on occupations, but the court said that an occupation could not be taxed if the tax is so specialized as to operate a discriminating burden against the introduction and selling of the products of another state or against the citizens of another state. Upon the same principle the dispensary laws of South Carolina, regulating the sale of intoxicating liquors and prohibiting their importation,3 were held void, the court holding that as the state recognized the sale, manufacture, and use of intoxicating liquors as valid, it could not discriminate against their being imported from other states.
The right to carry on commerce among the states is subject only to the regulation of congress, and as to this fundamental right to conduct such commerce, it is not the exercise but the existence of the power in congress which excludes all state control and interference whether under the taxing or the police power.*
1 Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204 (1894), 38 L. Ed. 962.
2 Walling v. Michigan, 116 U. S. 446, 29 L. Ed. 691 (1886).
8 Scott v. Donald, 165 U. S. 58, 41 L. Ed. 632 (1897); Vance v.
Vandercook, 170 U. S. 468 (1898), 42 L. Ed. 1111.
4 Chicago, etc., R. Co. v. Solan, 169 U. S. 133 (1898), 42 L. Ed. 688; Pennsylvania R. Co. v. Hughes, 191 U. S. 477 (1903), 48 L. Ed. 268.
In Missouri Pacific R. R. Co. v.
This freedom from state control in the carrying on of interstate commerce must however be reconciled with the general police power of the state in regulating persons, corporations and property within its jurisdiction, and in determining their relative rights and obligations. Thus while a state cannot impose any tax upon interstate commerce as such, nor restrict the persons or things to be carried therein, nor regulate the rate of tolls, fares or freight, or interfere with through trains, or exclude any lawful subjects of commerce, it can prescribe rules for the construction of railroads and their management and operation for the protection of persons and property. Such rules are not in themselves regulations of interstate commerce, although they may control in some degree the conduct and liability of those engaged in such commerce. While the line of distinction is not always clear between what is a lawful regulation of persons and property within the jurisdiction and what is a regulation of interstate commerce conducted by such persons or with such property, the rule remains as declared in the Wabash case, that it is not the exercise but the existence of the power in congress which makes void any action by the states regulating such commerce.
The distinction between the lawful exercise of the power of the state in regulating the relative rights and duties of those subject to its jurisdiction and the unlawful regulation of interstate commerce was illustrated in two cases where state legislation undertook to deal with the liability of carriers in interstate shipments of goods damaged on connecting lines. A Virginia statute, providing that a carrier might make any limitation as to its liability on an interstate shipment beyond its own line which it deemed proper, providing only the evidence was a contract in writing and signed by the shipper,1 and that the carrier should be liable unless within a reasonable time he gave satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge, was sustained
Castle, C. C. A. 8th Circuit, 172 Fed. 841 (1909), the Act of Nebraska, abolishing the fellowservant rule and adopting the rule of comparative negligence and requiring all questions of negligence and contributory negligence to be submitted to the jury, was sus
tained and held applicable to interstate railroads in the absence of valid legislation of congress, the Employer's Liability Act of 1906 having been held invalid.
1 Richmond & A. R. Co. v. Patterson Tobacco Co., 169 U. S. 311, 42 L. Ed. 759 (1898).
by the supreme court. Such a provision, the court said, was a reasonable one and not a regulation of interstate commerce. On the other hand, a Georgia statute, which, as construed by the supreme court of that state, applied to interstate shipments and imposed upon the carrier, as a condition of availing itself of a valid contract of exemption from liability beyond its own line, the duty of tracing the freight and informing the shipper when, where, and how, and by which carrier, the freight was lost, damaged or destroyed, and of giving the names of the parties and their official position, if any, by whom the truth of the fact set out in the information could be established, was, when applied to an interstate shipment, in violation of the constitution. The court distinguished this case from the Virginia case in that the carrier was made liable for the negligence of another carrier over whose track it had no control, unless it obtained information which it had no means of compelling another carrier to give. The court said this was not a reasonable regulation in aid of interstate commerce but a direct and immediate burden upon it.2
§ 38 (36). Congressional inaction in foreign and interstate commerce distinguished.-In one of the "original package" cases, Bowman v. Railroad Company," where the supreme
1 Central of Georgia R. Co. v. Murphey, 196 U. S. 194, 49 L. Ed. 444.
2 In St. Louis, I. M. & S. Ry. Co. v. Hampton, U. S. Circuit Court E. D. of Ark., 162 Fed. 693 (1908), the act of Arkansas regulating freight transportation and making an absolute requirement for furnishing cars therein, was held an unlawful interference with interstate commerce.
In St. Louis & S. F. R. Co. v. Allen, 181 Fed. 710 (1910), a rule of the Railroad Commission of Arkansas providing that in case of failure on the part of the shipper to give routing instructions it should be the duty of the railroad receiving the shipment to forward it via such route as would
make the lowest rate, was, as applied to interstate shipments, an unlawful interference with interstate commerce.
In Globe Elevator Co. V. Andrew, C. C., W. D. of Wis., 144 Fed. 871 (1906), on a motion for preliminary injunction, an act of Wisconsin providing for the inspection and grading of grain of Superior City, and requiring all grain to be sold and delivered under certain grades established, and prohibiting any sales or deliveries under Minnesota grades (the city being on the state line), was an attempted regulation of interstate commerce and therefore void.
3 Bowman v. Chi. & N. W. R. Co., 125 U. S. 465 (1888), 31 L. Ed. 700.
court first laid down the rule that in interstate commerce the inaction of congress meant freedom of commercial intercourse as to any lawful subject of commerce in the "original package, " it was suggested that while the two powers over interstate and foreign commerce are contained in the same clause and in the same term, the same inference was not always to be drawn from the absence of legislation by congress. Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and the people of the several states can have no relation with foreign powers in respect to commerce or any other subject except through the government of the United States, its laws and treaties. The question was therefore to be considered in each case, as it arises, whether the fact that congress has failed in the particular instance to provide by law a regulation of commerce among the states is conclusive of the intention that the subject shall be free from all positive regulation, or that until it positively interferes such commerce may be left free to be dealt with by the respective states.
§ 39 (37). Attachment of foreign railroad cars.-An interesting question, which has been differently ruled upon in the state courts, as to the liability of cars of a foreign railroad company, while in a state in the custody of another company, to attachment under legal process in such state, has been definitely decided by the supreme court, and it is held that such cars are subject to attachment under state laws notwithstanding the provisions of the interstate commerce act and of the act of congress, securing continuity of transportation.3
The court said in this opinion that the interstate commerce act was directed against the acts of railroad companies which prevent continuity of transportation, and section 5258, R. S., was directed against the trammels of state enactments then existing or which might be attempted; and that neither statute had the purpose to relieve the railroads of any obligations to their creditors or to take from their creditors any remedial
1 Supra, § 17.
2 Wall v. Norfolk & Western R. R. Co., 52 W. Va. 485, 64 L. R. A. (annot.) 501.
3 U. S. R. S. 5258, infra, § 42.
4 Davis v. C. C. & St. L. R. R. Co., 217 U. S. 157, 54 L. Ed. 708 (1910).
process provided by the state. Sums due to a foreign railroad carrier from other carriers as the former's share of freight on interstate shipments were held garnishable under state laws.
§ 40. Rulings of the state courts on the commerce clause.While the supreme court of the United States is the final arbiter of all questions in the construction and application of the federal constitution and the validity of state legislation in the exercise of the police or taxing power of the state with reference to the same, it is also true that under our dual form of government the state courts may, in the exercise of their jurisdiction, be called upon to determine such questions, and their judgment may be final as to the parties to the cause when their decision is in favor of the federal right set up in the case. Thus, if a federal right or immunity is claimed in a case in a state court, and the judgment of the highest court having jurisdiction in the state is in favor of the party making such claim of federal right, the decision of the state court thereon is final in that cause, and cannot be reviewed on writ of error by the supreme court. This is because the judiciary act of 1789 limits the appellate jurisdiction of the supreme court in reviewing decisions of the highest courts of the state to cases where the decision is against the federal right, privilege or exemption claimed. In a number of cases decisions of state courts have been rendered sustaining the claim of federal right of exemption and adjudging such statutes to be invalid, and such judgments for the reason stated, are final as to the parties to the cause.1
1 A number of decisions have been rendered in state courts, adjudging state statutes to be violative of the fourteenth amendment. In two notable cases in Missouri, Russell v. Croy, 164 Mo. 69, and State ex rel. Johnson v. C. B. & Q. Ry. Co., 165 Mo. 228, amendments to the state constitution were adjudged violative of the equal protection of the laws guaranteed by the federal constitution. In Ives v. Buffalo, etc., R. R. Co., 94 N. E. 432, the Work
men's Compensation Act of New York was held to violate the due process of law guaranteed by the. federal as well as state constitutions. In view of the anomaly of the state court finally determining the application of the constitution of the United States, the American Bar Association, at its meeting on August 31, 1911, recommended the amendment of the R. S. U. S., § 709 (incorporated as Sec. 237 of the new judicial code, taking effect January 1,