Confusing unreasonableness of the requirement with the fact that there was a regulation of interstate commerce, and not citing the case of Erb v. Morasch, supra, the Supreme Court held unconstitutional as a regulation of interstate commerce a statute of Texas applicable to interstate trains which required railway companies to start passenger trains at the point of origin and at local stations on scheduled time, with a margin of thirty minutes.122

§ 22. Requirement That Trains Shall Stop at Patricular Stations. In determining whether or not a state statute or a regulation of a state commission indirectly affecting interstate commerce is valid, the Supreme Court looks to the facts to see whether or not the regulation is reasonable. To require a train to run at a low rate of speed through a city may cause more delay than to require such train to stop at a particular station three minutes. We have just seen in the preceding section that the limitation of speed was held legal. This was because the regulation was necessary and reasonable. A regulation, however, to stop an interstate train at a point where reasonable facilities for travel already exist is unreasonable and an invalid attempt to regulate interstate commerce.123 This is true, because the regulation was not a reasonable exercise of the police power of the state. The opinion written by Mr. Justice Peckham concludes:

"The transportation of passengers on interstate trains as rapidly as can with safety be done is the inexorable demand

1022, 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas. 170; Chicago, B. & Q. R. Co. v. Kyle, 228 U. S. 85, 57 L. Ed. 741, 33 Sup. Ct. 440, affirming Kyle v. C., B. & Q. R. Co., 84 Neb. 621, 122 N. W. 37.

122 Missouri K. & T. R. Co. v. Texas, 245 U. S. 484, 62 L. Ed. 419, 38 Sup. Ct. 178, see also note L. Ed. and Seaboard A. L. R. Co. v. Blackwell, 244 U. S. 310, 61 L. Ed. 1160, 37 Sup. Ct. 640, L. R. A. 1917F, 1184; Chicago, B. & Q. R. Co. v. Railroad Com. of Wis., 237 U. S. 220, 59 L. Ed. 926, 35 Sup. Ct. 560, P. U. R. 1915C

309; Lehigh, Covington & C. St. R. Co. v. Covington, 235 U. S. 537, 59 L. Ed. 350, 35 Sup. Ct. 158, L. R. A. 1915F, 792, P. U. R. 1915A. 231. In the Seaboard A. L. R. Co. case, infra, the Georgia Blow Post law is held invalid. See, also, Note 120, ante.

123 Mississippi Railroad Com. v. Ill. Cent. R. Co., 203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90. See notes 54 L. Ed. U. S. Reports 970, 14 L. R. A. (N. S.) 293, and State v. St. L. & S. F. R. Co., 105 Mo. App. 207, 79 S. W. 714.

of the public who use such trains. Competition between great trunk lines is fierce and at times bitter. Each line must do its best even to obtain its fair share of the transportation between states, both of passengers and freight. A wholly unnecessary, even though a small, obstacle, ought not, in fairness, to be placed in the way of an interstate road, which may thus be unable to meet the competition of its rivals. We by no means intend to impair the strength of the previous decisions of this court on the subject, nor to assume that the interstate transportation, either of passengers or freight, is to be regarded as overshadowing the rights of the residents of the state through which the railroad passes to adequate railroad facilities. Both claims are to be considered, and after the wants of the residents within a state or locality through which the road passes have been adequately supplied, regard being had to all the facts bearing upon the subject, they ought not to be permitted to demand more, at the cost of the ability of the road to successfully compete with its rivals in the transportation of interstate passengers and freight."

A requirement of the law of the state of Illinois that an interstate mail and passenger train should run to a county seat three and a half miles off the main line is an unconstitutional interference and obstruction of interstate commerce.124 A purely local train, however, although carrying passengers and mail destined to points beyond the state, may properly be required to stop at county seats directly on the line traversed by such train.125

The Mississippi case, supra, may, upon a casual reading, appear in conflict with a former decision of the Supreme Court.126 The cases, however, are easily distinguishable. In the Mississippi case, the facts showed that there were reasonable facilities for travel without enforcing the order therein. under investigation. In the Ohio case, all trains up to three each way each day were required to stop. Ultimately, the question of whether or not a particular police regulation is

124 Ill. Cent. R. Co. v. Illinois, 163 U. S. 142, 41 L. Ed. 107, 16 Sup. Ct. 1096.

125 Gladson v. Minnesota, 166 U. S. 427, 41 L. Ed. 1064, 17 Sup. Ct. 627.

126 Lake S. & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. Ed. 702, 19 Sup. Ct. 465.

reasonable must be passed upon by the courts, and in one case the Supreme Court held the regulation to stop unnecessary and, therefore, unreasonable. In the other, under the facts, the regulation was necessary and, therefore, reasonable. The Ohio case cites and discusses the authorities, and the conclusion of the opinion makes reference to the rule adopted subsequently in the Mississippi case. This conclusion is as follows:

"Our present judgment has reference only to the case before us, and when other cases arise in which local statutes are alleged not to be legitimate exertions of the police powers of the state, but to infringe upon national authority, it can then be determined whether they are to be controlled by the decision now rendered. It would be impracticable, as well as unwise, to attempt to lay down any rule that would govern every conceivable case that might be suggested by ingenious minds."

The Mississippi case was followed upon similar facts.127

The conclusion quoted above leaves the decision of each case to be determined by the court from its view of the particular facts, the principle applied being that interstate commerce may be indirectly affected to the extent necessary to furnish "adequate and reasonable facilities." This, in effect, gives the states some control over interstate commerce, the Supreme Court having the power in each particular case to say whether or not that control shall be permitted. As indicated in Sections 20 and 21, ante, it seems that a more logical conclusion could be reached by enforcing the constitutional right of interstate transportation, fully regulated by Congress, to be free of state regulation. The difficulties of applying the rule are stated by Mr. Justice McKenna in a decision holding a Wisconsin statute invalid128 and are illustrated when that decision is read with a later one holding a Texas regulation valid.120

127 Atlantic C. L. R. Co. v. Whar ton, 207 U. S. 328, 52 L. Ed. 230, 28 Sup. Ct. 121; Herndon v. Chicago R. I. & P. R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 Sup. Ct. 633.

128 Chicago, B. & Q. R. Co. v. R.

R. Com. of Wis., 237 U. S. 220, 59 L. Ed. 926, 35 Sup. Ct. 560, P. U. R. 1915C, 309.

129 Gulf C. & S. F. Ry. Co. v. Texas, 246 U. S. 58, 62 L. Ed. 574, 38 Sup. Ct. 236. See, also, Note 122

§ 23. State Regulation of Carriers and Their Employees. -A state statute requiring engineers to be examined and licensed is not void, although it may incidentally and remotely affect interstate commerce. 130

A law of a state forbidding those affected with color blindness from acting as locomotive engineers is a valid exercise of the state's police power.131 In sustaining the above principle, Mr. Justice Field said:

"It is conceded that the power of Congress to regulate interstate commerce is plenary; that, as incident to it, Congress may legislate as to the qualifications, duties and liabilities of employees and others on railway trains engaged in that commerce; and that such legislation will supersede any state action on the subject. But until such legislation is had, it is clearly within the competency of the state to provide against accidents on trains whilst within their limits. Indeed, it is a principle fully recognized by decisions of state and federal courts, that wherever there is any business in which, either from the products created or the instrumentalities used, there is danger to life or property, it is not only within the power of the states, but it is among their plain duties, to make provision against accidents likely to follow in such business, so that the dangers attending it may be guarded against so far as is practicable."

Under this principle, a state law requiring a certain number of employees to a train, known as the Full-Crew Law, is valid.132 A law requiring an electric head light on engines

and Sections 20 and 21, ante; notes in 59 L. Ed. 926; in 62 L. Ed. 574, 575; in 44 L. R. A. (N. S.) 478; in 29 L. R. A. (N. S.) 159; in 17 L. R. A. (N. S.) 821 and in 14 L. R. A. (N. S.) 293; and see Missouri, K. & T. R. Co. v. Texas, 245 U. S. 484, 62 L. Ed. 419, 38 Sup. Ct. 178; Note 122, ante.

130 Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508, 8 Sup. Ct. 564, 1 I. C. R. 804.

131 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. Ed. 352, 9 Sup. Ct. 28.

.

132 Chicago, R. I. & P. Ry. Co. v. Arkansas, 86 Ark. 412, 111 S. W. 456; for note see 32 L. R. A. (N. S.) 22; Chicago, R. I. & P. Ry. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 Sup. Ct. 275. But a law of Texas prohibiting anyone from acting as a conductor on a railway train without previous service as a brakeman is void as a denial of the equal protection of the law. Smith v. Texas, 233 U. S. 630, 58 L. Ed. 1129, 34 Sup. Ct. 681; reversing same styled case, 63 Tex. Civ. App. 183, 146 S. W. 900. The

has been held valid, although it is near the margin of the power of a state if it does not offend against the commerce clause of the federal Constitution.13

If a state cannot regulate the employees of railroads in so far as they are engaged in intrastate commerce, they cannot be regulated.134

Congress having, in 1908, passed a second Employees' Liability Act, which is valid, the passage of that Act removed such subject from the sphere of state action.135 There being nothing in the federal laws to conflict therewith, it is within the power of a state legislature to require carriers to pay employees wages semi-monthly, although the carriers and employees are engaged in interstate commerce.136

Congress having acted upon the subject of the hours of labor of interstate railway employees,187 the subject is beyond state control, and a state law fixing such hours for a shorter period than those fixed by the federal statute, is void.13

§ 24. Blowing Whistle and Checking Speed at Crossings. In the absence of congressional action upon the same subject

requirement of a specified crew in switching across streets sustained. St. Louis I. M. & S. R. Co. v. Arkansas, 240 U. S. 518, 60 L. Ed. 776, 36 Sup. Ct. 443.

133 Atlantic C. L. R. Co. v. State of Georgia, 135 Ga. 545, 69 S. E. 725, 32 L. R. A. (N. S.) 20; same-styled case, 234 U. S. 280, 58 L. Ed. 1312, 34 Sup. Ct. 829. The Supreme Court has indicated that since the passage of the Act of March 4, 1915 (Chap. 168, 38 Stat. L. 1192, Fed. Stat. Ann. 8638a) this decision may not be controlling. Vandalia R. Co. v. Pub. Serv. Com. of Ind., 242 U. S. 255, 61 L. Ed. 276, 37 Sup. Ct. 93.

134 Howard v. Illinois C. R. Co., 207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141. See a discussion of Smith v. Alabama and similar cases in dissenting opinion of Mr. Justice Moody.

135 For a discussion of this Act,

see, post, Sec. 395; see also Northern Pac. Ry. Co. v. Washington, 222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. 160; North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 34 Sup. Ct. 305; reversing same styled case, 156 N. C. 496, 72 S. E. 858; Erie R. R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. 1155, 34 Sup. Ct. 761; affirming same styled case 199 N. Y. 525, 92 N. E. 1084, 136 App. Div. 902, 120 N. Y. Sup. 1023.

136 State v. Missouri Pac. R. Co., 242 Mo. 339, 147 S. W. 118.

137 Sec. 394, post. Wilson v. New, 243 U. S. 332, 61 L. Ed. 755, 37 Sup. Ct. 298.

138 Erie R. Co. v. New York, 233 U. S. 671, 58 L. Ed. 1149, 34 Sup. Ct. 756, reversing, Erie R. Co. v. New York, 198 N. Y. 369, 91 N. E. 849, 29 L. R. A. (N. S.) 240, 139 Am. St. Rep. 829, 19 Ann. Cas. 811.