that a State cannot penalize the failure to deliver a telegraph message sent from one State to another. 13 It has been held that a State may require an interstate carrier to settle claims promptly. 14 But a State may not increase the liabilities of an initial carrier engaged in interstate commerce.15 However, a State reciprocal demurrage law has been held by another State to be generally applicable. 16 In still another State, it has been held within the power of the State to penalize delay in performing service. But these and other cases of the same sort, where it is insisted that an intent of Congress to occupy the whole field so as to exclude the State must appear, are clearly open to question in view of the present tendencies observable in the decisions of the Supreme Court of the United States.

17

§ 148. Legislation relating to facilities.

There seems to be no doubt that a State Commission may as to local movements compel switching to be done on a basis established by it.18 It is possible that this may be done, although the car is destined to another State, if the purposes of such order are to prevent discrimination among shippers in local switching service. 19 Likewise, a State commission has power to order the construction of an interchange track to connect railroad lines for the exchange of all kinds of traffic, both interstate and intrastate, the purpose being to provide better facilities for railroad service in general.20 Although the Act now provides that the Commission can order switch connections, State bodies duly empowered may still order the making

13 Western U. Tel. Co. v. Pendleton, 122 U. S. 347, 30 L. ed. 1187.

14 Atlantic C. L. Ry. Co. v. Mazursky, 216 U. S. 122, 30 Sup. Ct. 378.

15 Central of Ga. Ry. Co. v. Murphey, 197 U. S. 194, 49 L. ed. 444, 25 Sup. Ct. 218.

16 Martin v. Oregon Ry. & N. Co., 58 Oregon, 198, 113 Pac. 16.

17 Traynham v. Charleston & W. C. Ry. (S. C.), 71 S. E. 813.

18 Louisville & W. R. R. v. Higden, 234 U. S. 592, 34 Sup. Ct. 948.

19 Texas & P. R. R. v. Railroad Commission, 183 Fed. 1005.

20 Pittsburgh, C., C. & St. L. Ry. v. State ex rel., 171 Ind. 189, 86 N. E. 328.

of such connections.21 cannot prescribe rules or assume powers not conferred upon it; and the statute should not be held to apply to terminal facilities or transportation in shipment of interstate commerce.22 A State has power to impose regulations on railroads within the State, requiring interchange of cars with another road subsequent to the arrival of the train at the "break-up yards." 23

But a State railroad commission

§ 149. State legislation burdening interstate commerce.

If certain cases only are examined it would seem that State statutes which restrict the conduct of interstate transportation in any substantial degree are unconstitutional, the absence of congressional regulation on the subject being held equivalent to a declaration that the matter should be left undisturbed. Thus a State statute forbidding the separation of travelers has been held void as applied to interstate transportation.24 But it follows that as the matter is to be left without legislative interference a carrier may make proper regulations separating white passengers from black, which may apply to interstate commerce.25 A State statute directed against all discrimination in freight rates has been held unconstitutional, so far as its application to interstate shipments is concerned. 26 But it has been said recently in one case that where the

21 See Kansas City So. Ry. v. Kaw Valley Dist., 233 U. S. 75, 34 Sup. Ct. 181, holding that a State body cannot order the removal of an interstate bridge.

22 But rates fixed by a State for transportation therein can have no application to shipments moving through, even as part of a combination rate. Oregon R. R. & N. Co. v. Campbell, 230 U. S. 525, 33 Sup. Ct. 22.

23 Louisville & N. R. R. Co. v. Central S. Y. Co., 133 Ky. 149, 97 S. W. 778.

24 Hail v. Decuir, 95 U. S. 485, 24 L. ed. 547.

But see Alabama & V. Ry. v. Morris, 103 Miss. 511, 60 So. 11, holding that a State may require separation as a police measure.

25 Chiles v. Chesapeake & O. R. R. Co., 218 U. S. 71, 30 Sup. Ct. 667.

See Hart v. State, 100 Md. 595, 85 Atl. 497, holding that for the States to require separation would invade federal jurisdiction.

26 Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, 30 L. ed.

244.

that a State cannot penalize the failure to deliver à telegraph message sent from one State to another. 13 It has been held that a State may require an interstate carrier to settle claims promptly. 14 But a State may not increase the liabilities of an initial carrier engaged in interstate commerce.15 However, a State reciprocal demurrage law has been held by another State to be generally applicable. 16 In still another State, it has been held within the power of the State to penalize delay in performing service. But these and other cases of the same sort, where it is insisted that an intent of Congress to occupy the whole field so as to exclude the State must appear, are clearly open to question in view of the present tendencies observable in the decisions of the Supreme Court of the United States.

17

§ 148. Legislation relating to facilities.

There seems to be no doubt that a State Commission may as to local movements compel switching to be done on a basis established by it. 18 It is possible that this may be done, although the car is destined to another State, if the purposes of such order are to prevent discrimination among shippers in local switching service. 19 Likewise, a State commission has power to order the construction of an interchange track to connect railroad lines for the exchange of all kinds of traffic, both interstate and intrastate, the purpose being to provide better facilities for railroad service in general.2 20 Although the Act now provides that the Commission can order switch connections, State bodies duly empowered may still order the making

13 Western U. Tel. Co. v. Pendleton, 122 U. S. 347, 30 L. ed. 1187.

14 Atlantic C. L. Ry. Co. v. Mazursky, 216 U. S. 122, 30 Sup. Ct. 378.

15 Central of Ga. Ry. Co. V. Murphey, 197 U. S. 194, 49 L. ed. 444, 25 Sup. Ct. 218.

16 Martin v. Oregon Ry. & N. Co., 58 Oregon, 198, 113 Pac. 16.

17 Traynham v. Charleston & W. C. Ry. (S. C.), 71 S. E. 813.

18 Louisville & W. R. R. v. Higden, 234 U. S. 592, 34 Sup. Ct. 948.

19 Texas & P. R. R. v. Railroad Commission, 183 Fed. 1005.

20 Pittsburgh, C., C. & St. L. Ry. v. State ex rel., 171 Ind. 189, 86 N. E. 328.

of such connections.21 But a State railroad commission cannot prescribe rules or assume powers not conferred upon it; and the statute should not be held to apply to terminal facilities or transportation in shipment of interstate commerce.22 A State has power to impose regulations on railroads within the State, requiring interchange of cars with another road subsequent to the arrival of the train at the "break-up yards." 23

§ 149. State legislation burdening interstate commerce.

If certain cases only are examined it would seem that State statutes which restrict the conduct of interstate transportation in any substantial degree are unconstitutional, the absence of congressional regulation on the subject being held equivalent to a declaration that the matter should be left undisturbed. Thus a State statute forbidding the separation of travelers has been held void as applied to interstate transportation.24 But it follows that as the matter is to be left without legislative interference a carrier may make proper regulations separating white passengers from black, which may apply to interstate commerce.25 A State statute directed against all discrimination in freight rates has been held unconstitutional, so far as its application to interstate shipments is concerned.26 But it has been said recently in one case that where the

21 See Kansas City So. Ry. v. Kaw Valley Dist., 233 U. S. 75, 34 Sup. Ct. 181, holding that a State body cannot order the removal of an interstate bridge.

22 But rates fixed by a State for transportation therein can have no application to shipments moving through, even as part of a combination rate. Oregon R. R. & N. Co. v. Campbell, 230 U. S. 525, 33 Sup. Ct. 22.

23 Louisville & N. R. R. Co. v. Central S. Y. Co., 133 Ky. 149, 97 S.W.778.

24 Hail v. Decuir, 95 U. S. 485, 24 L. ed. 547.

But see Alabama & V. Ry. v. Morris, 103 Miss. 511, 60 So. 11, holding that a State may require separation as a police measure.

25 Chiles v. Chesapeake & O. R. R. Co., 218 U. S. 71, 30 Sup. Ct. 667.

See Hart v. State, 100 Md. 595, 85 Atl. 497, holding that for the States to require separation would invade federal jurisdiction.

26 Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244.

Commission has defined certain acts as discriminatory, the State authorities may declare still others to be discriminatory also.27 There have been doubts as to the extent to which a State can regulate the stopping of interstate trains. It was at first said that the State could order this to be done. 28 But it is now well established that this cannot be done by the authorities of the State, if the company provides an adequate local service.29 It apparently has once been said that a State can provide redress for failure to forward a message; but that case was decided before the Commission had been given jurisdiction over telegraphing between the States, and the rule would now be different.30

§ 150. Extent of the federal supervision.

Two recent cases in the Supreme Court of the United States throw light upon these difficult distinctions. In one of them 31 it was held that the federal courts will not disturb, on the theory of any interference with interstate commerce, an order of a State railroad commission suspending an interstate railway company's supplemental tariff in order to give the commission an opportunity to investigate, since it seems that Congress has not so

27 Puritan Coal Mining Co. V. Penna. Ry., 237 Pa. St. 420, 85 Atl. 426.

28 Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. 465. This case was virtually overruled by Cleveland, C., C. & St. L. R. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. 722.

29 See the latest cases on this point: Atlantic C. L. R. R. Co. v. Wharton et al., 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. 121; Herndon v. Chicago, R. I. & P. R. R. Co., 218 U. S. 135, 30 Sup. Ct. 633.

30 Compare Western U. T. Co. v.

James, 162 U. S. 650, 48 L. ed. 1105, 16 Sup. Ct. 950, with H. B. Williams Co. v. Western U. T. Co., 203 Fed. 140.

31 Grand Trunk Ry. Co. v. Michigan Railroad Commission, 231 U. S. 457, 34 Sup. Ct. 152.

The position of the Commission is that since cartage charges may be regarded as a proper subject for national regulation, federal authority over demurrage and track storage charges in connection with interstate commerce cannot be challenged and is excluded. Wilson Produce Co. v. Pa. Ry., 14 I. C. C. 170.