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acquire the use of the railroads' right of way, but a state statute giving such right against the right of way of an interstate carrier is not invalid as an attempted regulation of interstate commerce; it being the opinion of the Circuit Judges of the Sixth Circuit that "it was the intention of Congress to leave to the states the question of granting or withholding the right of eminent domain. ''31 The right arising under a state law comes within that division of the state's powers which may be exercised in the absence of federal regulation.

Municipalities and states may not regulate or tax messages for the federal government, nor deny telegraph companies which have accepted the terms of the Act of July 24, 1866, the right to continue the use of streets. Reasonable local regulations not in conflict with these principles and not a regulation of interstate commerce are permitted.32

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That the United States may exercise the power to condemn land "whenever it is necessary or appropriate the execution of any of the powers granted Constitution, '33 cannot be doubted. Nor can the state, "by action or inaction, prevent, unreasonably burden, discriminate against or directly regulate interstate commerce or the right to carry it on." This quotation, read in the light of the '34 case in which the language was used, is a declaration that a state, by refusing the right of eminent domain, cannot prohibit interstate commerce.

§ 9. States May Establish Means for Interstate Transportation. The states may grant corporate franchises, and the corporations so created, being authorized so to do by the law

31 Louisville & N. R. Co. v. Western Union Tel. Co., 207 Fed. 1, 124 C. C. A. 573.

32 See also Williams v. Talladega, 226 U. S. 404, 57 L. Ed. 275, 33 Sup. Ct. 116, holding that the federal statute was merely permissive and citing cases. Essex v. New England Tel. Co., 239 U. S. 313, 60 L. Ed. 301, 36 Sup. Ct. 102.

33 United States V. Gettysburg Elec. Ry., 160 U. S. 668, 679, 40 L.

Ed. 576, 16 Sup. Ct. 427; Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449; Cherokee Nation v. Kansas Railway, 135 U. S. 641, 656, 34 L. Ed. 295, 10 Sup. Ct. 965; Chappell v. United States, 160 U. S. 499, 40 L. Ed. 510, 16 Sup. Ct. 397.

34 Oklahoma, West, Attorney General v. Kansas Natural Gas Co., 221 U. S. 229, 262, 55 L. Ed. 716, 31 Sup. Ct. 564; affirming Haskell v. Kansas. Natural Gas Co., 172 Fed. 545.

of their creation, may engage in interstate transportation. It is also true that a state may, as a general rule, exclude a corporation of another state from transacting ordinary business, not interstate commerce, within its limits, or permit the engaging in such business on terms. The state creating a corporation does not confer thereon the right to engage in interstate commerce, nor can a state "exclude from its limits a corporation engaged in such commerce." In Oklahoma v. Kansas Natural Gas Co.,35 the Supreme Court of the United States held invalid a law of Oklahoma which prohibited a corporation of another state from engaging in the transportation of oil from Oklahoma in interstate commerce. The law was sought to be sustained upon the theory that it was made to "conserve" the natural resources of the state. In denying the validity of this contention the court argued that, if Oklahoma could exercise such power, other states might, and, said the court, "a complete annihilation of interstate commerce might result." Mr. Justice McKenna, at p. 261 of the opinion, quotes with approval these propositions:

"No state by the exercise of, or by the refusal to exercise, any or all of its powers, may prevent or unreasonably burden. interstate commerce within its borders in any sound article thereof.

"No state by the exercise of, or by the refusal to exercise, any or all of its powers, may substantially discriminate against or directly regulate interstate commerce or the right to carry it on."

A corollary to this statement of the law is, "that a corporation of one state authorized by its charter to engage in lawful commerce among the states may not be prevented by

35 See Note 34, ante; 221 U. S. at

p. 260, and cases cited throughout opinion. See also Pennsylvania Gas Co. v. Public Service Commission, 252 U. S. 23, 64 L. Ed. 434, 40 Sup. Ct. 279; Pennsylvania v. West Virginia, 262 U. S. 553, 67 L. Ed. 1117, 43 Sup. Ct. 658; Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U. S. 298, 68 L. Ed. 1027, 44 Sup. Ct. 544;

Ozark Pipe Line Corp. v. Monier, 266 U. S. 555, 69 L. Ed. 439, 45 Sup. Ct. 184; Peoples Natural Gas Co. v. Public Service Commission, 270 U. S. 550, 70 L. Ed. 726, 46 Sup. Ct. 371; Public Utilities Commission V. Attleboro Steam & Electric Co., 273 U. S. 83, 71 L. Ed. 549, 47 Sup. Ct. 294; Buck v. Kuykendall, 267 U. S. 307, 69 L. Ed. 623, 45 Sup. Ct. 324.

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another state from coming into its limits for all the legitimate purposes of such commerce." This is true because the right to carry on interstate commerce is not a privilege granted by a state, but is one of the privileges of every citizen of the United States, "and the accession of mere corporate facilities cannot have the effect of depriving them of such right. '37 A fortiori, Congress might create or license a corporation to engage in commerce "among the states" and no state could prevent such corporation "from coming into its limits for all the legitimate purposes of such commerce."

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Nonincorporation does not prevent the regulation of a common carrier.38

§ 10. Regulation of Facilities-Depots.-The Acts of Congress regulating interstate commerce apply to "common carriers engaged in the transportation of passengers by railroad.''39 "Railroad" includes

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or property
"bridges, car floats, lighters and ferries

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and also

all switches, spurs, tracks and terminal facilities of every kind used or necessary in the transportation of sons or property

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per

and also all freight depots. "'40 The Act does not apply to "transportation of passengers or property wholly within one state."'41

Stations for the accommodation of passengers and for the receipt and delivery of freight are necessary both for interstate and intrastate transportation, and, generally, such stations serve the needs of each class of transportation. It has been held that the provision limiting the scope of the Act of Congress regulating interstate transportation applies to all

36 Western Union Tel. Co. v. Kansas, 216 U. S. 1, 27, 54 L. Ed. 355, 30 Sup. Ct. 190.

37 Buck Stove Co. v. Vickers, 226 U. S. 205, 215, 57 L. Ed. 189, 33 Sup. Ct. 41. See also, Mercantile Trust Co. v. Tex. & P. Ry. Co., 216 Fed. 220, holding that a railroad company incorporated under an act of Congress cannot be excluded by a state from doing business within its borders.

38 Platt v. Le Cocq, 150 Fed. 391; reversed on another point, Platt v. LeCocq, 158 Fed. 723, 85 C. C. A. 621, 15 L. R. A. (N. S.), 558; United States Express Co. v. State, 164 Ind. 196, 73 N. E. 101.

39 Sec. 1, Interstate Commerce Act; post, Sec. 401.

40 Id., Sec. 403, post.
41 Id., Sec. 401, post.

portions of the Act;12 although the limiting proviso does not justify a state in discriminating against interstate commerce.43

From this it follows that there is a field in which the states may act in regulating carriers, although such carriers may be engaged in both interstate and intrastate transportation. The boundaries of the respective powers of the state and federal governments are not distinctly marked. It has been said that the Act of Congress, "excludes the right of a state to regulate the obligation of furnishing the means of interstate

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transportation. ''44

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In the Larabee Mills case,45 it was held that the mere grant by Congress of power to the Interstate Commerce Commission does not, in the absence of action by the Commission, change the rule that the states "may regulate many matters which indirectly affect interstate commerce." There is, as said by Mr. Justice Hughes in the Minnesota Rate Cases,46 an "interblending of operations in the conduct of interstate and local business by interstate carriers. The same right-ofway, terminals, rails, bridges, are provided for both classes of traffic; the proportion of each sort of business varies from year to year and, indeed, from day to day; no division of the plant, no apportionment of it between interstate and local traffic, can be made today which will hold tomorrow; terminals, facilities and connections in one state aid the carrier's entire business and are an element of value with respect to the whole property and the business in other states." But notwithstanding this is true, Congress has not occupied the whole field, and the states may act so as

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42 Simpson et al., R. R. Com. of Minnesota v. Shepard, 230 U. S. 352, 432, 433, 57 L. Ed. 1511, 33 Sup. Ct. 729.

43 Houston & East Texas Railway v. U. S., 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833; Railroad Commission of Wisconsin v. C. B. & Q. R. R. Co., 257 U. S. 563, 66 L. Ed. 371, 42 Sup. Ct. 232.

44 Demurrage Cases, Chicago R. I. & P. Co. v. Hardwick Farmers Eleva

tor Co., 226 U. S. 426, 57 L. Ed. 284, 33 Sup. Ct. 174; St. Louis I. M. & S. Ry. Co. v. Edwards, 227 U. S. 265, 269, 270, 57 L. Ed. 506, 33 Sup. Ct. 26.

45 Missouri Pac. Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612, 623, 53 L. Ed. 352, 29 Sup. Ct. Rep. 214, affirming Larabee Flour Mills Co. v. Missouri Pac. Ry., 74 Kan. 808, 88 Pac. 72.

46 Note 42, ante.

indirectly to affect interstate transportation where "congressional action leaves room without a conflict for the operation of the state law in the same field. ''47

A statute in Mississippi required railroads to "establish and maintain such depots as shall be reasonably necessary for the public convenience," and to "stop such of the passenger and freight trains at any depot as the business and public convenience shall require." The Railroad Commission of Mississippi having ordered a carrier to stop an interstate train at a particular depot, Mr. Justice Peckham, delivering the opinion of the court, after citing cases, said:48 "Upon the principle decided in these cases, a state railroad commission has the right, under a state statute, so far as railroads are concerned, to compel a company to stop its train under the circumstances already referred to, and it may order the stoppage of such trains if the company does not otherwise furnish proper and adequate accommodation to a particular locality, and in such cases the order may embrace a through interstate train actually running and compel it to stop at a locality named. In such case, in the absence of congressional legislation covering the subject, there is no illegal or improper interference with the interstate commerce right." The order, however, was held invalid as unreasonable.

A carrier may not be compelled by mandamus to build a station at a particular place in the absence of a specific statutory duty so to do,49 but when the statute so authorizes, mandamus will lie to compel the construction of a depot.50

47 Louisville & N. R. Co. v. Hughes, 201 Fed. 727, 742.

48 Mississippi R. R. Com. v. Illinois C. R. Co., 203 U. S. 335, 344, 51 L. Ed. 209, 27 Sup. Ct. Rep. 90, affirming Illinois C. R. Co. v. Mississippi R. R. Com., 138 Fed. 327, 70 C. C. A. 617.

49 Northern Pac. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 283, but see the vigorous dissent of Mr. Justice Brewer concurred in by Justices Field and Harlan. The majority opinion is sustained by a well-reasoned argument

quoted from People v. N. Y. L. E. & W. R., 104 N. Y. 58, 9 N. E. 856, although there is authority supporting the dissenting view, Concord & M. R. Co. v. Boston & M. R. Co., 68 N. H. 464, 41 Atl. 263.

50 People v. Delaware & H. Canal Co., 32 N. Y. App. Div. 120, 52 N. Y. Supp. 850, affirmed in 165 N. Y. 362, 59 N. E. 138; Central of Georgia Ry. Co. v. State, 104 Ga. 831, 31 S. E. 531; Railroad Commissioners of South Carolina v. Columbia & G. R. Co., 26 S. C. 353, 2 S. E. 127; Northern Pac. R. Co. v. Territory (Wash. T.), 13 Pac.

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