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valid;68 and the same court held void a law compelling all railroads, upon application and when a specified elevator capacity exists, to "erect, equip and maintain a side-track or switch of suitable length to approach as near as four feet of the outer edge of their right of way when necessary, and in all cases to approach as near as necessary to approach an elevator that may be erected by the applicant or applicants adjacent to their right of way for the purpose of loading grain into cars from said elevator, and for handling and shipping grain to all persons or associations so erecting or operating such elevators, or handling and shipping grain, without favoritism or discrimination in any respect whatever." One of the contentions made in the argument against the validity of this law was that it conflicted with the commerce clause of the Constitution of the United States. This contention was not determined, as the law was held invalid because it failed to provide indemnity to the carrier.69

A regulation requiring a carrier to deliver cars beyond its tracks to a private switch is illegal.70 In McNeill v. Southern Ry. Co., cited Note, ante, the North Carolina Corporation Commission entered an order requiring the railway company, upon payment of freight charges, to make delivery of the cars beyond its right of way on the siding of a private coal company. The order was held invalid as "amounting to an unlawful interference with interstate commerce."

That a spur track ordered by a state commission may be for the present benefit of only one industry, does not make the condemnation of property necessary for the construction of the spur track the taking of property for a private purpose." A

68 Missouri Pac. Ry. Co. v. Nebraska, 164 U. S. 403, 41 L. Ed. 489, 17 Sup. Ct. 130.

69 Missouri Pac. Ry. Co. v. Nebraska, 217 U. S. 196, 54 L. Ed. 727, 30 Sup. Ct. 461.

70 Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213; McNeill v. So. Ry. Co., 202 U. S. 543, 50 L. Ed. 1142, 26 Sup. Ct. 722. In this connection, see I. C. C. v. A. T. & S. F. Ry.

Co., 234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814, concerning a switching order of the Interstate Commerce Commission.

71 Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211, 58 L. Ed. 924, 34 Sup. Ct. 522. Judge Gilbert of the Supreme Court of Georgia cites and follows the text. Railroad Com. of Ga. v. L. & N. R. Co., 148 Ga. 442, 445.

state has no power to compel a carrier to switch cars from a connection with a competing road to a designated side track within its own terminals for the purpose of being laden with freight for immediate transportation.72 If the transportation is intrastate, different carriers may be compelled by state authority to interchange freight.73

The Supreme Court has not always given consideration to the fact that spur tracks serve both interstate commerce and intrastate commerce. The same statement applies to the cases relating to physical connections discussed in the succeeding sections. The principle applied in cases like the McNeill case, supra, seems to be overlooked in other cases.

The Congress has regulated spur tracks and the Interstate Commerce Commission has frequently entered orders authorized by such regulations.74 The field having been occupied by Congress, it would seem under well established rules, that the power of the states to regulate such tracks presently or intended to be used to serve interstate shipments, was excluded. The decisions of the Supreme Court do not in terms deny the existence or the application of the principle, but they do, in some cases, ignore the principle. That court properly holds that an enforced discharge by a common carrier of its duty to provide reasonably adequate extensions of a side-track leading to an adjacent manufacturing plant is not in violation of the Fourteenth Amendment to the Constitution, but the court there ignored, if the question was raised, the really important issue of the competency of a state commission to enforce such duty. It is practically universally true that such tracks must serve interstate commerce." 75 In holding that the Georgia commission was authorized to require a connecting track between two railroads, no reference was made to the issue of interference with interstate commerce, which, as the present writer (who was of counsel) knows, was distinctly raised by the testimony and which was the substantial

72 III. C. R. Co. v. Railroad Com. of La., 236 U. S. 157, 59 L. Ed. 517, 35 Sup. Ct. 275.

73 Mich. C. R. Co. v. Mich. R. Com., 236 U. S. 615, 59 L. Ed. 750, 35 Sup. Ct. 423.

74 Louisville Board of Trade v. L. & N. R. Co., 40 I. C. C. 679 and cases cited pp. 688, 689.

75 Chicago & N. W. R. Co. v. Ochs, 249 U. S. 416, 63 L. Ed. 679, 39 Sup. Ct. 343.

question presented on brief and in oral argument.76 The Supreme Court of Virginia holds that although a side- or spurtrack may be used for interstate commerce, as well as for intrastate commerce, the corporation commission of that state has jurisdiction to compel its construction." This decision is in accord with judgments of the Supreme Court of the United States, but the Supreme Court has never definitely stated the principle and has, in some of the cases cited above, applied an opposing principle.

A double track may be required where the facts so justify.78 It may be accepted as law, under the authorities as they now stand, that where there is a "full hearing" and a reasonable justification for the order, a state commission has jurisdiction to compel a common carrier to construct and maintain a spur track to a private plant, when such track furnishes additional trackage for a public use, even though interstate commerce, as well as intrastate commerce, is served thereby. This statement, although supported by the highest authority, is of doubtful soundness, as thereby states are given concurrent jurisdiction over matters constitutionally committed by the Congress to the Interstate Commerce Commission, and over which that Commission has frequently exercised jurisdiction.79

The Transportation Act, 1920, enlarges the powers of the Interstate Commerce Commission, giving it authority to require the joint use of terminals.so With these enlarged powers the Supreme Court may apply correct principles and hold that the states may no longer regulate terminals to the extent of requiring their consolidation or joint use.

The decision of the Circuit Court of Appeals for the Eighth Circuit that an interplant switching service may be performed by an interstate carrier for a consideration of the lease of lands seems contrary to a sound rule of law and policy.82

76 Seaboard A. L. R. Co. v. R. R. Com. of Ga., 240 U. S. 324, 60 L. Ed. 669, 36 Sup. Ct. 260.

77 Washington & O. D. R. Co. v. Royster Guano Co., 122 Va. 397, 94 S. E. 763.

78 Phoenix Ry. Co. v. Geary, 239 U. S. 277, 60 L. Ed. 287, 36 Sup. Ct. 45.

79 See Notes 74 and 75, ante.
80 Sec. 417, post.

81 Am. Smelting & Ref. Co. V. Union Pac. R. Co., 168 C. C. A. 83, 256 Fed. 737.

82 Post, Sec. 192; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 Sup. Ct. 265, 34 L. R.

The Supreme Court in Penn. R. Co. v. Public Serv. Com. of Penn., 250 U. S. 566, 63 L. Ed. 1142, 40 Sup. Ct. 36, correctly says that "States no more can supplement its (federal) requirements than they can annul them."

§ 14. Requiring Physical Connections between Carriers. In the Jacobson case,ss under authority of a law of Minnesota, the State Railroad Commission ordered a connection between two common carriers of the state, and this order the courts enforced. The carriers contended that the order was void as an unreasonable regulation of commerce, and that in requiring the construction of the connecting track, the order and judgment took property without due process of law. In the brief the contention was made that the law upon which the proceedings were had was "an ill-disguised attempt to control and regulate interstate traffic." The court did not construe the order as directly affecting interstate commerce and overruled the other contentions of the plaintiff in error. The opinion concludes as follows:

"In this case the provision is a manifestly reasonable one, tending directly to the accommodation of the public, and in a manner not substantially or unreasonably detrimental to the ultimate interests of the corporation itself.

"Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant in error."

The Jacobson case differs from the McNeill case, Sec. 13, ante, in that in the McNeill case there was an order to connect with a private plant, while in the Jacobson case two state common carriers were directed to make a physical connection. In the Jacobson case, the Supreme Court said, arguendo, that the order for the connection there did not affect interstate commerce, and Mr. Justice Peckham, for the court, said:

"But the Supreme Court of the state, in the opinion de

A. (N. S.) 671, Chicago I. & L. R. Co. v. U. S. 219 U. S. 486, 55 L. Ed. 305, 31 Sup. Ct. 272, affirming 163 Fed. 114.

83 Wisconsin M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115.

livered therein, said that there was ample evidence in the case of a necessity for such track connection resulting from the benefit which would accrue to exclusively state commerce, when considered alone, to justify the ordering of the connection in question."

In the Jacobson case, the regulation only incidentally affected interstate commerce; in the McNeill case the regulation had direct reference to interstate commerce. In discussing the McNeill case, Mr. Justice White said:

"The cars of coal not having been delivered to the consignee, but remaining on the tracks of the railway company in the condition in which they had been originally brought into North Carolina from points outside of that state, it follows that the interstate transportation of the property had not been completed when the corporation commission made the order complained of."

These facts clearly differentiate the two cases, and make the respective opinions harmonious.

The more recent case of the Larabee Mills84 is interesting and instructive. In that case the Supreme Court of Kansas compelled, by mandamus, the Missouri Pacific Railway Company to deliver cars from another road over existing transfer tracks to the mill of the Larabee Mills, that the mill might be enabled to ship out its manufactured product, three-fifths of which went to points outside the state of Kansas. It appeared that the railway company accorded similar privileges to other flour mills along its right of way. In the Supreme Court of the United States, the railroad relied strongly on the McNeill case. The two cases are much alike. In the McNeill case the delivery of loaded cars was sought over a private track to a coal yard; who built the track is not disclosed. In the Larabee Mills case, the delivery of empty cars was sought over a track, the ownership of which is not disclosed, but which was essentially for the private use of the mill. In the McNeill case, it appears that the coal cars were brought from another state, although it must have been true that at times the spurtrack was used in intrastate transportation; in the Larabee

84 Missouri Pac. R. Co. v. Larabee Flour Mills Co., 211 U. S. 612, 53 L. Ed. 352, 29 Sup. Ct. 214.

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