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Mills case there was both interstate and intrastate transportation from the mill. Thus far there seems to be no legal distinction between the two cases. There is, however, one clear distinction. The order in the Larabee Mills case was made to prevent discrimination; such fact does not appear in the McNeill case. In the Larabee Mills case, it was contended by the railroad "that no duty was imposed on the railroad company by act of the legislature or mandate of commission or other administrative board." To this argument, Mr. Justice Brewer answered:

"No legislative enactment, no special mandate from any commission or other administrative board was necessary, for the duty arose from the fact that it was a common carrier. This lies at the foundation of the law of common carriers. Whenever one engages in that business the obligation of equal service to all arises, and that obligation, irrespective of legislative action or special mandate, can be enforced by the courts. All these questions are disposed of by one wellestablished proposition, and that is, that a party engaging in the business of a common carrier is bound to treat all shippers alike and can be compelled to do so by mandamus or other proper writ."

What, then, the Supreme Court of Kansas did was to enforce the common-law duty of the carrier to treat all shippers alike. This it had the right to do prior to action by Congress or the Commission appointed by Congress, even though in doing so interstate commerce might be affected. This principle Mr. Justice Brewer states:

"This case does not rest upon any distinction between interstate commerce and that wholly within the state. It is the contention of counsel for the mill company that it comes within the oft-repeated rule that the state, in the absence of express action by Congress, may regulate many matters which indirectly affect interstate commerce, but which are for the comfort and convenience of its citizens. Of the existence of such a rule there can be no question. It is settled and illustrated in many cases. The mere grant by Congress to the commission of certain national powers in respect to interstate commerce does not of itself and in the absence of action by the commission interfere with the authority of the

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state to make those regulations conducive to the welfare and convenience of its citizens."

In discussing the McNeill case, Mr. Justice Brewer said: "There are many points of resemblance between that case and this, but there is this substantial distinction: In that was presented and determined solely the power of a state commission to make orders respecting the delivery of cars engaged in interstate commerce beyond the right of way of the carrier and to a private siding-an order which affected the movement of the cars prior to the completion of the transportation, while here is presented, as hereinbefore indicated, the question of the power of the state to prevent discrimination between shippers, and the common-law duty resting upon a carrier was enforced. This common-law duty, the state, in a case like the present, may, at least in the absence of congressional action, compel a carrier to discharge."

Mr. Justice Moody dissented, placing his dissent on the McNeill case, between which and the instant case he saw no legal distinction.

These cases were determined prior to the passage of the Hepburn Act,85 which Act extended the power of the Interstate Commerce Commission.

Since the passage of that Act, the Supreme Court has held void a state regulation requiring a physical connection between common carriers of the state of Washington.8 In this, the Fairchild case, the order to make the connection was held void, the reason for so holding being stated by Mr. Justice Lamar as follows:

"There is nothing by which to compare the advantage to the public with the expense to the defendant and nothing to show that within the meaning of the law there is such public necessity as to justify an order taking property from the company."

The effect of the order on interstate commerce was not dis

85 Act June 29, 1906, 34 Stat. L. 584, c. 3591, U. S. Comp. St. Supp. 1907, p. 892, Fed. Stat. Ann. Supp. 1907, p. 168, Secs. 338, 400.

86 Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 Sup. Ct. 535.

cussed, nor was that question raised, it seemingly being assumed that the order related to intrastate commerce.

It appears from the authorities and in view of the enlarged powers of the federal commission under the Acts of 1906 and 1910, that a physical connection could not be ordered by authority of the states when the purpose of the connection was wholly or partly to accommodate interstate commerce.87 It has, however, been held, and upon what appears to be sound reasoning based upon authority, that such connections may be required when made to accommodate intrastate commerce, the requirement being one for a facility for transportation and in no way burdening interstate commerce.ss The use of terminal facilities could not, prior to Transportation Act, 1920, be taken from one carrier for the benefit of another.89 This

87 So. Ry. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. 140; United States v. Union Stock Yard & Transit Co., 226 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 83; New York C. & H. R. Co. v. Hudson County, 227 U. S. 248, 57 L. Ed. 499, 33 Sup. Ct. 269; Seaboard A. L. Ry. Co. v. R. R. Com. of Georgia, 206 Fed. 181; see also Atlantic S. R. & G. Ry. Co. v. State, 42 Fla. 358, 29 So. 319, 89 Am. St. Rep. 233. At common law individuals could not force the right to connect private tracks, People v. Chicago & N. W. Ry., 57 Ill. 436; State v. Willmar & S. F. Ry. Co., 88 Minn. 448, 93 N. W. 112. No objection that connection is with main line, Morris Draying Co. v. Greenville & H. Ry. Co., 62 N. J. Eq. 768, 48 Atl. 568, affirming 59 N. J. Eq. 372, 46 Atl. 638. Law may apply to contiguous roads which do not cross, New York L. & W. Ry. Co. v. Erie R. Co., 31 App. Div. 378, 52 N. Y. Supp. 318, appeal dismissed 157 N. Y. 674, 51 N. E. 1092; Gallagher v. Keating, 28 Misc. Rep. 131, 58 N. Y. Supp. 366. Statute authorizing plant tracks to connect valid, Reeser v. Philadelphia & R.

Ry. Co., 215 Pa. 136, 64 Atl. 376. May require connections though roads do not cross at grade, International & G. N. R. Co. v. R. R. Com. of Texas, 99 Tex. 332, 89 S. W. 961, affirming 86 S. W. 16; Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358. A railroad company is not compelled to switch freight which was not consigned over its lines from the line of one railroad to that of another in the same city, Texas & N. O. Ry. Co. v. Gulf & I. Ry. Co. of Texas, 54 S. W. 1031, affirmed, Gulf & I. Ry. Co. v. Texas & N. O. Ry. Co., 56 S. W. 328, 93 Tex. 482.

88 Pittsburg, C. C. & St. L. Ry. Co. v. Hunt, 171 Ind. 189, 86 N. E. 328; State v. Florida E. C. Ry. Co., 58 Fla. 524, 50 So. 425; Chicago, I. & L. Ry. Co. v. R. R. Com. of Indiana, 175 Ind. 630, 95 N. E. 364.

89 Louisville & N. R. Co. v. Central Stock Yards, 212 U. S. 132, 53 L.Ed. 441, 29 Sup. Ct. 246, reversing same styled case, 133 Ky. 148, 97 S. W. 778; Commonwealth v. Norfolk & W. Ry. Co., 111 Va. 59, 68 S. E. 351.

does not mean that one road could not, in a proper case, be required to switch the cars of another and connecting carrier.90 Transportation Act, 1920, authorizes the Commission to require that terminals be opened to a joint use.91

There is a distinction between connections with spur-tracks, side-tracks or switch-tracks and connections with main lines. of railroad. In a case arising in Georgia,92 the Supreme Court of the United States held that the fact that 85 per cent. of a railroad's switch-track was used in interstate commerce did not deprive the state commission of the right to prevent the discontinuance of service over such track when the discontinuance was in conflict with a rule of the state commission. In that case, the Georgia Public Service Commission, by Rule 14, specifically prohibited the abandonment or discontinuance of any established service without the permission of the commission, and the Supreme Court of the United States held that this was a reasonable rule which must be complied with by the carrier before it could abandon or discontinue a switching service. The decision of the Supreme Court is founded upon the Interstate Commerce Act as amended by the Transportation Act of 1920, particularly Section 22 thereof, which leaves authority in the states and their regulating agencies over the extensions and abandonments of spur-, industrial- or side-tracks.

This statutory provision explains the distinction between the Georgia case referred to and the Mississippi case. In the latter case, and citing the provisions of the Transportation Act of 1920, the Supreme Court held that the Interstate Commerce Commission has exclusive jurisdiction over physical connections between main lines of railroad doing an interstate business. The Georgia case was relied upon in brief and argument in the Mississippi case, but there is a clear distinction in the facts of the two cases, and the opinions are not

90 Penna. Co. v. U. S. 266 U. S. 351, 59 L. Ed. 616, 35 Sup. Ct. 370. 91 Note 80, ante; see also Sec. 13, ante.

92 Western & Atlantic R. Co. v. Georgia Public Service Commission,

267 U. S. 493, 69 L. Ed. 753, 45 Sup. Ct. 409.

93 Alabama & Vicksburg Ry. Co. v. Jackson & Eastern Ry. Co., 271 U. S. 244, 70 L. Ed. 928, 46 Sup. Ct. 535.

in conflict. For further discussion of this subject, see Chapter V, post.

§ 15. Delivery Over Connecting Tracks.-Railroads are organized for a public purpose and to serve primarily the public good and convenience. The Interstate Commerce Commission has power to require physical connections between interstate carriers, and like power exists in the states so far as the requirements of intrastate commerce may reasonably demand.

That these connections may serve the public demands and needs, it is nécessary that they be used. How far, then, may a carrier be compelled to receive and deliver cars over these connections when established?

There is a commerce which is intrastate and a commerce which is interstate. Each may be served by these connections, and both state and federal authorities may act for the purpose of requiring adequate service for the transportation within their respective jurisdictions. Neither the state government nor the federal government may require the establishment of facilities for transportation which are not within its proper sphere. This situation makes carriers subject to independent regulation from separate tribunals and it sometimes is a difficult question to determine which tribunal may require a particular facility, the facility required by either being usually for the benefit of the commerce of both.

While this duplication of control over carriers is frequently burdensome, until Congress acts the courts must adjust the conflicting regulations as best they may. Applying these principles, it cannot be doubted that the states may, in proper cases, require carriers of intrastate commerce to receive and deliver cars from and to other carriers over their connections. This service must be necessary and must be reasonably compensated for, and provision must exist for the protection of the carrier in its compensation and for the return of its cars."

94 Central Stock Yards v. Louisville & N. R. Co., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339, affirming Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213; Louisville & N.

94

R. Co. v. Central Stock Yards Co., 212 U. S. 132, 53 L. Ed. 441, 29 Sup. Ct. 246, reversing Louisville & N. R. Co. v. Central Stock Yards Co., 133 Ky. 148, 97 N. W. 778; So. Ry. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297,

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