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But a "State has no power to fetter the right to carry on interstate commerce within its borders by the imposition of conditions or regulations which are unnecessary and pass beyond the bounds of what is reasonable and suitable for the proper exercise of its powers in the field that belongs to it."20

In holding that motor vehicles could be regulated by a state, although owned in and licensed by another state, the Supreme Court followed the principle above mentioned and said: "In the absence of National legislation covering the subject, a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles moving in interstate commerce as well as others. ''21

§ 6. Commerce within the Exclusive Control of the States. -We have seen that there is a commerce over which Congress has exclusive control. There is also a commerce which, in the absence of federal regulation, may be indirectly affected by state legislation. There is also a commerce which is wholly

Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 57 L. Ed. 284; 33 Sup. Ct. 174, reversing Hardwick Farmers' Elevator Co. v. Chicago, R. I. & P. Ry. Co., 100 Minn. 25, 124 N. W. 819. When Congress acts prior state laws in conflict are superseded, Northern Pac. Ry. Co. v. State of Washington, 222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. 160; Barrett v. City of New York, 232 U. S. 14, 58 L. Ed. 483, 34 Sup. Ct. 203. The question is well discussed and properly decided in People v. Erie R. Co., 135 App. Div. 767, 119 N. Y. Supp. 893. It was there held that the fact that Congress had legislated, although the legislation was suspended, superseded the state law. The case was reversed on appeal, although it would seem that the lower court correctly stated the law- People v. Erie R. Co., 198 N. Y. 369, 91 N. E. 849. For an elaborate discussion, if not a correct conclusion, see So. Ry. Co. v. R. R. Com. of In

diana, 179 Ind. 23, 100 N. E. 337. This case was reversed because Congress had acted.-So. Ry. Co. v. Railroad Com. of Indiana, 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304. State statute establishing legal presumption of negligence on part of carrier or its employees by reason of collision at grade crossing between train and ve hiele held to be unreasonable, arbitrary and violative of due-process clause of 14th Amendment to U. S. Constitution, Western & Atlantic R. R. Co. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 Sup. Ct. 445.

20 Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 69 L. Ed. 445, 45 Sup. Ct. 191.

21 Hendrick v. Maryland, 235 U. S. 610, 59 L. Ed. 385, 35 Sup. Ct. 140; Kane v. New Jersey, 242 U. S. 160, 61 L. Ed. 222, 37 Sup. Ct. 30; Clark v. Poor, 274 U. S. 554, 71 L. Ed. 1199, 47 Sup. Ct. 702.

intrastate, the regulation of which does not affect directly or indirectly interstate commerce. This commerce the states alone may regulate. In the Railroad Commission cases,22 at p. 334, the Supreme Court of the United States said:

"Every person, every corporation, everything within the territorial limits of a state is, while there, subject to the constitutional authority of the state government. Clearly under this rule Mississippi may govern this corporation, as it does all domestic corporations, in respect to every act and everything within the state which is the lawful subject of state government. It may, beyond all question, by the settled rule of decision in this court regulate freights and fares for business done exclusively within the state, and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. So it may make all needful regulations of a police character for the government of the company while operating its road in that jurisdiction. In this way it may certainly require the company to fence so much of its road as lies within the state; to stop its trains at railroad crossings; to slacken speed while running in a crowded thoroughfare; to post its tariffs and time-tables at proper places, and other things of a kindred character affecting the comfort, the convenience, or the safety of those who are entitled to look to the state for protection against the wrongful or negligent conduct of others."

22 Stone v. Farmers Loan & Trust Co., 116 U. S. 307, 334, 29 L. Ed. 636, 6 Sup. Ct. 191, 334, 338. This case was quoted with approval in the Minnesota Rate Cases, page 415, for which see Note 9, ante. For summary of state legislation, see Interstate Com. Com. v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S. 479, 495, 42 L. Ed. 243, 17 Sup. Ct. 896, also cited at page 414 of the opinion in the Minnesota Rate Cases. The classification of power made herein in sections 3, 4 and 5 is made by Mr. Justice McKenna in Southern Ry. v. Reid, 222 U. S. 424, 435, 56 L. Ed. 257, 32 Sup. Ct. 140, where he said, "The power of the

state over the general subject of commerce has been divided into three classes: First, those in which the power of the state is exclusive; Second, those in which the state may act in the absence of legislation by Congress; Third, those in which the action of Congress is exclusive and the state cannot act at all." Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204, 209, 38 L. Ed. 962, 14 Sup. Ct. 1087; Western Union Telegraph Co. v. James, 162 U. S. 650, 655, 40 L. Ed. 1105, 16 Sup. Ct. 934; State v. Atlantic C. L. R. Co., 61 Fla. 799, 54 So. 900; State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969.

In the same case, at p. 331, the court showed that this exclusive jurisdiction to act does not mean that the extent of the regulation is itself unlimited. The court said: "From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation or without due process of law."

States may regulate the commerce within their respective jurisdictions by legislating directly, or they may, as has been done in nearly all of the states, delegate to a board or commission certain powers to prescribe rules and regulations, to fix rates, and to exercise a general supervision over the corporations or persons within the regulative jurisdiction. The legislative acts creating commissions and prescribing the powers and duties thereof must of necessity speak in more or less general terms, for, as said by the Supreme Court of Florida:23 "The difficulty of making a specific enumeration of all such powers as the Legislature may intend to confer upon Railroad Commissioners for the regulation of common carriers in the interest of the public welfare renders it necessary to confer some power in general terms; and general powers in general terms; and general powers given are intended to confer other powers than those specially enumerated."

§ 7. All Commerce Subject to Regulation. The divisions showing where the power to regulate commerce rests in the different classes named in the three preceding sections, as said by the Supreme Court, "express but the extreme boundaries of the subject.'24 More definite principles must be applied to particular cases. But in all cases the power to regulate rests somewhere.

23 State v. A. C. L. R. R. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.), 639, 662.

24 Southern Ry. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. 140.

It must of necessity be burdensome to interstate carriers to be subject to regulation by two governments acting independently of each other, and it is frequently a difficult question to determine which has the power to require a particular act or to make a particular rule. That Congress may extend its power is clearly indicated in the Minnesota Rate cases and the Shreveport case, cited ante, and that the extent of the power of Congress under the Constitution may include a scope much wider than has been exercised under the Act to Regulate Commerce and acts supplemental thereto and amendatory thereof, is shown by the decisions of the Supreme Court under the Employers' Liability Acts.25

Some of the delicate and difficult questions which arise from the dual regulation of carriers, appear from the result of the decision of the Supreme Court in the Minnesota Rate cases, Sec. 3, ante. Duluth, Minnesota, and Superior, Wisconsin, are about 3 miles apart, and each is located on Lake Superior. Rates from and to these ports must of necessity be the same. From Duluth to Minnesota points over one line is an intrastate movement; over other lines such movement is interstate. All shipments from Superior to Minnesota points move interstate. That the paramount authority of Congress may be exercised, the regulation of rates from these cities, whether interstate or intrastate, must be by national authority. Under the decisions in the Minnesota Rate cases, the Minnesota rate schedule to Duluth intrastate became effective. Higher rates having been paid pending the litigation, shippers intrastate received a refund of part of the rate paid by them, and in complaints before the Interstate Commerce Commission it was contended that the refunds paid on intrastate shipments should be adopted as the measure of refunds on interstate shipments. The Interstate Commerce Commission exercised the paramount authority of the national government, regarding the state-prescribed rates as a fact to be considered, but determined the question for itself.20

§ 8. Eminent Domain. The right of eminent domain is an

25 Sec. 395, post. Mondou v. N. Y., N. H. H. R. Co., Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed.

327, 32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44.

26 Freight rates from Minnesota

27

incident to sovereignty. The right has been defined as the power to compel an owner to sell and convey property when the public necessities require. The right must, of course, be exercised within constitutional limits. The right may be exercised for a public purpose and, upon payment of a proper compensation, after due process of law, against the right of way of an interstate carrier. It has been held by the Supreme Court of the United States28 that the power of eminent domain was not surrendered by the states to the United States nor affected by the federal Constitution, except that it must be exercised in accordance with due process of law upon payment of compensation. The power of eminent domain extends to tangibles and intangibles, including choses in action, contracts and charters. An appropriation of a contract under the right of eminent domain, with compensation, neither challenges its validity nor impairs the obligation thereunder. It is a taking of property, not an impairment of an obligation. Every contract, whether between the state and an individual or between individuals only, is subject to the law of eminent domain, for there enters into every engagement the unwritten condition that it is subject to appropriation for public use.

Congress has made all railroads governmental post roads29 and has authorized telegraph companies, under certain conditions, to construct, maintain and operate lines thereover.30 These Acts alone gave no right to telegraph companies to

points, 32 I. C. C. 361. Rates on Beer and Other Malt Products, 31 I. C. C. 544. Compare Corp. Com. of Okla. v. A. T. & S. F. Ry. Co., 31 I. C. C. 532; Trier v. C. St. P. M. & S. Ry. Co., 30 I. C. C. 352; Holmes & Hallowell Co. v. G. N. Ry. Co., 37 I. C. C. 627. 27 United States v. Jones, 109 U. S. 513, 27 L. Ed. 1015, 3 Sup. Ct. 346; Cincinnati v. Louisville & N. R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 Sup. Ct. 267; Fletcher v. Peck, 6 Cranch, 10 U. S. 87, 3 L. Ed. 162.

28 Cincinnati v. Louisville & N. R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 Sup. Ct. 267, and also see, Western Union Tel. Co. v. Pennsylvania R. R.

Co. et al., 195 U. S. 540, 49 L. Ed. 312, 25 Sup. Ct. 133, 1 Ann. Cas. 517.

29 Acts June 15, 1866, c. 124, 14 Stat. 66 (Rev. Stat. Sec. 5258, U. S. Comp. Stat. 1901, p. 3565), and Acts June 8, 1872, c. 335, 17 Stat. 308, 209 (Rev. Stat. Sec. 3964, U. S. Comp. St. 1901, p. 2707); 5 Fed. Stat. Ann. 900.

30 Acts July 24, 1866, c. 230, 14 Stat. 221 (Rev. Stat. Secs. 5263-5269, U. S. Comp. St. 1901, pp. 3579, 3580). Cincinnati v. Louisville & N. R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 Sup. Ct. 267; Western Union Tel. Co. v. Penn. R. R. Co., 195 U. S. 540, 49 L. Ed. 312, 25 Sup. Ct. 133, 1 Ann. Cas. 517.

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