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tion of master and employe as established and enforced in the courts of the state under the laws of the state may be different from that enjoined by congress, and confusion and embarrassment may result from the enforcement of both in the same tribunals. In a recent case the supreme court of Connecticut declined to assume jurisdiction in a suit under the Employer's Liability Act of 1908 prior to its amendment of the act of 1910 supra, both on the ground that congress did not intend to confer such jurisdiction on the state court, and on the further ground that if it did so intend the state court, in the absence of state legislation, was not bound to assume it. As to this latter ground, however, whatever the embarrassment in exercising jurisdiction owing to statutory forms of procedure, a state court in the enforcement of a right created by federal law is controlled by the provision of the constitution of the United States, that this constitution and the laws of the United States which should be made in pursuance thereof

shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitutional laws of any state to the contrary nothwithstanding.2

In invoking the federal jurisdiction for the assertion of a federal right by a private litigant, the amount of $2,000.00 ($3,000.00 after July 1, 1912) must be involved in the controversy.

849 (45). Genesis of the Interstate Commerce Act.-The recognition of the governmental power in controlling interstate commerce immediately preceded the judicial declaration that interstate railway transportation was beyond state con The question of interference with interstate commerce had been raised in the Granger cases, and the supreme court had held that the act regulating fares was valid in the absence of regulation by congress, and that until congress undertook to legislate for those who were without the state, the state could provide for those within, even though those without might be indirectly affected.

1 Hoxsie v. N. Y. & N. H. H. R. Co., 82 Conn. 352 (1909). See infra, § 530.

2 Constitution, Art. VI., par. 2. 3 Pike v. Chicago, etc., R. Co., 94 U. S. 1. c. 177 (1876), 24 L. Ed. 98.


The supreme court of Illinois 1 cited these cases in sustaining a state statute as to so much of interstate transportation as was within the limits of the state of Illinois. But the supreme court in the same case (supra, § 37), said that in the Granger cases the importance of the question of the governmental power of regulation and of the company's contract right of exemption therefrom overshadowed all others, so that the question of freedom of interstate commerce received but little attention at the hands of the court. This decision of the supreme court reversing the supreme court of Illinois, was rendered in 1886, in the same year that the freedom of interstate commeree from the state taxing power was declared in the Tennessee drummer case, and broadly affirmed that the statute of a state enacted to regulate and tax, or to impose any other restriction upon the transmission of persons or property or telegraph messages from one state to another, was not within the class of legislation which the state, in the absence of legislation by congress, could enact, and that the state statute was void as to all interstate shipments, including that part of the transmission of such shipments which was within the state.

§ 50 (46). Passage of the Interstate Commerce Act.-The decision in the Wabash case demonstrated the lack of power in the states to regulate interstate shipments, and the demand for the exercise of this power by congress becoming irresistible, the interstate commerce bill which had been pending for several years in congress became a law February 4, 1887.3

The discussion in the two houses of congress and in the public press was mainly directed to the long and short haul clause contained in the fourth section, and the prohibition of pooling contained in the fifth section of the act. Differences of opinion developed between the house and the senate, the former insisting on the prohibition of pooling and on a qualified long and short haul clause. The bill was finally enacted in the form reported by the conference committee of the two houses of

1 Wabash, St. L. & P. R. Co. v. Illinois, 104 Ill. 476.

2 This case was decided October 25, 1886.

The interstate commerce com

mission was established March 22, 1887, but the terms of the commissioners were computed from January 1st. See 19 Opinion of Attorney Generals, p. 47, 1887.

congress. Frequent references were made in the debates to the then recent decision of the supreme court in the Wabash case denying to the states any power for the regulation of interstate traffic. A very wide difference of opinion was developed in the discussion as to the proper construction of the act, particularly as to what were the "substantially similar circumstances and conditions" in the fourth section, and one of the members of the house in the final debate described the bill as "one which nobody understands, nobody wants, and everybody is going to vote for."1

§ 51. The successive amendments of the Interstate Commerce Act. The act to regulate commerce was so clearly within the power of congress that no serious question was raised as to its constitutionality. Very grave questions however were

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1 For a comprehensive and accurate statement of the condition of the state regulation of railroads at and prior to the adoption of the interstate commerce act, see Hadley's "Railroad Transportation, its History and its Laws," first published in 1885. See also report of Windom to U. S. Senate, 1874, (Senate Report No. 307, 43rd Con gress, 1st Session). Cullom Report (Senate Report No. 46, 49th Congress, 1st Session). Hepburn Report, New York legislature of 1879.

In the Import Rate Case, 162 U. S. 211, 40 L. Ed. 944, the supreme court in referring to the causes for the enactment said:

"They chiefly grew out of the use of railroads as the principal modern instrumentalities of commerce. While shippers of merchandise were under no legal necessity to use railroads, practically they . From the very nature of the case, therefore, railroads were monopolies, and the


evils that usually accompany mo nopolies soon began to show themselves, and were the cause of loud complaints. The companies owning the railroads were charged, and sometimes truthfully, with making unjust discriminations between shippers and localities, with making secret agreements with some to the detriment of other patrons, and with making pools or combinations with each other, leading to oppression of entire communities. . . . As the powers of states were restricted to their own territiories and did not enable them efficiently to control the management of great corporations whose roads extend through out the entire country, there was a general demand that congress, in the exercise of its plenary power over the subject of foreign and interstate commerce, should deal with the evils complained of by a general enactment, and the statute in question was the result."

made as to what powers were conferred upon the commission by the terms of the act and as to the construction of the different sections of the act in relation thereto, and the discussion and determination of these questions led to continuous agitation for amendments to the act. Thus, it will be seen under the different sections of the act (infra, part II), the powers of the commission were construed by the supreme court to be materially different from the powers claimed and exercised by the commission during the first years of its existence.

Thus it was held that the commission under the act as originally framed had no power to make maximum and minimum rates for the future, and that the competition between the carriers created substantially different circumstances and conditions within the meaning of section 4, known as the long and short haul clause.2


Amendatory acts have been passed by congress in 1889, 1893, 1903, 1906, 1908 and 1910. That of 1889 gave the shipper an additional summary and effective remedy by writ of mandamus to compel the carrier to furnish equal facilities (infra, § 419); * that of 1893 remedied the defect growing out of the difficulty to enforce self-incriminating testimony (infra, § 343); the act of 1903, known as the Elkins Law, made very important changes, materially enforced the provisions against discriminations, in that it made the public rates conclusive against the carrier, every deviation therefrom being punishable. The

1 Social Circle Case, 162 U. S. 184, 40 L. Ed. 935 (1895). In this case the court quoted from the opinion of Justice Jackson in the circuit court (43 Fed. 47) as to the scope of the act, as follows:

"Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking

to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits." Cincinnati Freight Bureau case, 167 U. S. 479, 42 L. Ed. 243 (1896).

2 Import Rate case, 162 U. S. 197, 40 L. Ed. 940 (1895).

3 See B. & O. R. R. v. U. S. ex rel., 215 U. S. 481, 54 L. Ed. 292 (1910).

scope of the act was also materially extended as to the parties subject to its provisions. Fine was substituted for imprisonment in the penal provisions of the act (infra, § 422). In 1903 was also enacted the so-called Expedition Act (infra, § 490) which materially expedited the procedure in suits brought by the United States or suits prosecuted by the attorney-general in the name of the Interstate Commerce Commission.

The most important amendments were those of 1906 and 1910. The act of 1906, known as the Hepburn Act,1 not only

1 The Hepburn or Rate Bill of 1906 became a law on June 29, 1906, and, under joint resolution, took effect sixty days after its approval, that is, on August 28, 1906. A bill embodying many of the same features, known as the EschTownsend Bill, had been passed in the House of Representatives in the Fifty-eighth Congress, but did not come to a vote in the senate. Very exhaustive hearings were had by the Interstate Commerce Committees in both the house and senate, containing the testimony of railroad officials, shippers, economists, and members of the Interstate Commerce Commission, representing all shades of opinion. The discussions in congress, espe cially in the senate, related mainly to the increased powers given to the commission and the judicial review provided in the act.

In the course of the senate hearing, Attorney-General Moody, at the request of the committee, rendered an opinion May 5, 1905 (Vol. II of Senate Reports, p. 1674), embodying the following conclusions:

"1. There is a governmental power to fix the maximum future

charges of carriers by railroad, vested in the legislatures of the states with regard to transportation exclusively within the states, and vested in congress with regard to all other transportation.

"2. Although legislative power, properly speaking, cannot be delegated, the law-making body, having enacted into law the standard of charges which shall control, may intrust to an administrative body not exercising in the true sense judical power, the duty to fix rates in conformity with that standard.

"3. The rate-making power is not a judicial function and cannot be conferred constitutionally upon the courts of the United States, either by way of original or appellate jurisdction.

"4. The courts, however, have the power to investigate any rate or rates fixed by legislative authority and to determine whether they are such as would be confiscatory of the property of the carrier, and if they are judicially found to be confiscatory in their effect, to restrain their enforcement.

"5. Any law which attempts to deprive the courts of this power is unconstitutional."

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