carrier by water not subject to the Act when shipments by railroad entirely within one State are consigned in care of a carrier by water, which acts as agent of the consignee at a port in that State, and the carrier by water transports these consignments to a point in another State, such ultimate destination not appearing in the rail carrier's bill of lading.12 So where goods are shipped in one State, directed to a consignee in another, but carried only to the State line, and there received by the consignees, the shipment is not interstate. 13

§ 129. Precedent and subsequent transportation.

A mere switching company which transfers goods from one carrier to another within the State, entirely without reference to their final destination, is not engaged in interstate commerce, whatever the destination of the goods.14 This is true whether the switching is before or after loading, so long as the goods have not as yet been put in course of interstate shipment. 15 But it seems clear that the extent to which deliveries of goods billed through in carload lots should be made by switching cars upon sidings can be made the subject of orders by the Commission. 16 And where a railroad system engaged in interstate commerce controls through stock ownership a wharf company, which has been chartered for the purpose of furnishing terminal facilities, the conduct of such a terminal is subject to the jurisdiction of the Commission.17 The distinction taken by the Commission seems to be that undoubtedly the practices of the carrier regarding delivery are within control of Commission, but where the handling

12 Re Transportation by the C. & O., 21 I. C. C. 207.

13 United States v. C., K. & S. R. R. Co., 81 Fed. 783.

14 Kentucky & I. Bridge Co. v. L. & N. R. R., 37 Fed. 567, 2 L. R. A. 289, 2 Int. Com. Rep. 102.

15 Missouri Pacific R. R. Co. v.

Larrabee Flour Mills, 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. 696.

16 Interstate Commerce Commission v. Atchison, T. & S. F. Ry., 234 U. S. 294, 34 Sup. Ct. 814.

17 Southern Pac. Terminal Co. v. Int. Com. Comm., 219 U. S. 498, 31 Sup. Ct. 279.

follows delivery to the shipper the Commission is without power. 18 Therefore, so far as the carrier has assumed delivery by switch, the Commission will entertain such questions as whether the defendant carrier should not be required to embrace complainants' mills within the switching limits of Portland, Oregon, though not located within the city of Portland. 19 Where the transportation in question is plainly disconnected from the interstate transportation it is not difficult to declare the movement altogether intrastate. Thus the cab service from a railroad station, even when operated under the auspices of the railroad itself, is wholly subject to local regulation. 20 So a common carrier engaged in transferring passengers and baggage between railroad stations and between such stations and hotels and private residences, though performing a service connected with interstate passenger traffic, is nevertheless not subject to the provisions of the Act.21

§ 130. Power to fix rates under the Constitution.

The power of Congress either directly or through a commission to fix the rates of carriers in interstate carriage was formerly but not recently doubted. It would have been extraordinary if such power were not granted by the Constitution. We have seen that the power existed at common law, and was exercised in England before the Revolution, as well as in the States. At the time of the adoption of the Constitution the power was lodged in the States. It is a maxim of constitutional law that all power not granted to the United States in the Constitution remains in the States; the Constitution of the United States was a power-conferring, not a power-destroying document.22 But nothing can be clearer than that the

18 Cosby v. R. T. Co., 23 I. C. C. 72, 77.

19 Portland Lumber Co. v. O. W. R. R. & N. Co., 21 I. C. C. 292.

20 New York ex rel. v. Knight, 192

U. S. 21, 48 L. ed. 325, 24 Sup. Ct. 202.

21 Anacostia Citizens Asso. v. B. & O. R. R. Co., 25 I. C. C. 411.

22 That the Congress may em

right of fixing rates for interstate commerce is no longer in the States; a fixing of rates by legislation or commission would be a regulation of interstate commerce, which Congress alone has power to regulate. It would seem to follow without possibility of doubt that the power which was taken away from the States by the Constitution, because it was a power to regulate commerce, was at the same time conferred, as such power, on the Congress.23

§ 131. Extent of the federal jurisdiction.

Sometimes it is said that only the federal government has power over interstate matters, and that the States alone have any concern with intrastate matters. But it has always been discovered when it came to the test, that in the traffic movements of railroad companies performing both interstate and intrastate service, there are inextricable complications in any entire separation.24 By the better view when the matter is common ground the State will not be kept from the field unless action by the nation has inclosed it. But even so there is the question as to what may fairly be considered as offering scope for regulation by either the State or the nation. The decisions as to rates and as to service notably differ in this regard. It seems to be agreed that in respect to rates neither can consider the earnings appropriate to the other, but that in ordering facilities either can consider the business of the

power a Commission to fix rates for carriage between the States has long since been assumed, but of course in fixing rates due process of law must be observed; and no one shall be deprived of life, liberty or property in defiance of the guaranties of the Constitution. Louisville & N. R. R. v. Interstate Commerce Commission, 195 Fed. 541 (1912).

23 In Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653 (1912), it was pointed

out that the railroad commission of a State had in a case where Congress had not acted, no more than in any other case, no authority which could constitutionally be given it to fix a part of a through rate for a transit which was essentially interstate.

24 See Smyth v. Ames, 169 U. S. 466, 42 L. ed. 89, 18 Sup. Ct. 418.

And see the Minnesota Rate Cases, 230 U. S. 352, 57 L. ed. 1511, 33 Sup. Ct. 729, discussed fully in the last chapter.

other. 25 The further discussion of these matters is postponed until the last chapter, where these rules are considered in detail.

Topic C. Continuous Carriage under Common Control § 132. Existence of common arrangement.

When goods are shipped under a through bill of lading from a point in one State to a point in another, and are taken by a State common carrier under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the law. 26 The through billing and rating is the usual but by no means the only method of manifesting a common arrangement.27 In the case of carriage of passengers a similar interpretation will be made; assent by a carrier to the issue of a through ticket over several railroads constitutes an arrangement for continuous carriage. 28 Where, therefore, a local carrier takes part in the carriage of goods through to destination in another State, though its share of the carriage is entirely within the State, it is engaged in interstate commerce.29 This is often shown to be the case by a through billing and rating of the goods assented to by the carrier in question.30 In Texas it has

25 See Atlantic C. L. Ry. v. No. Car. Corp. Comn., 206 U. S. 1, 51 L. ed. 993, 27 Sup. Ct. 585.

And see Grand Trunk Ry. v. Railroad Commission of Michigan, 231 U. S. 457, 34 Sup. Ct. 152, and generally the last chapter.

Cincinnati, N. O. & T. P. Ry. Co. v. Int. Com. Comm., 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700; Louisville & N. R. R. Co. v. Behlmer, 175 U. S. 648, 44 L. ed. 309, 20 Sup. Ct. 209; United States v. Seaboard Ry. Co., 82 Fed. 563; Interstate S. Y. Co. v. Indianapolis U. Ry. Co., 99 Fed. 472.

27 State v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.), 44 S. W. 542.

28 Carrey v. Spencer, 36 N. Y. Supp. 886; Missouri, K. & T. R. R. Co. v. Fookes (Tex. Civ. App.), 40 S. W. 858.

29 Norfolk & W. R. R. Co. v. Pa., 136 U. S. 114, 34 L. ed. 394, 10 Sup. Ct. 958; Ex parte Kochler, 30 Fed. 867; Augusta So. R. R. Co. v. Wrightsville & T. R. R. Co., 74 Fed.

522.

30 Cincinnati, N. O. & T. P. Ry. Co. v. Int. Com. Comm., 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700.

been held that through billing is not enough, and a State carrier is not engaged in interstate commerce unless it takes part in a through rating. But it is now certain that the rating need not be joint; the State carrier is none the less an interstate carrier, because its share of the total rate is equal to his entire local rate, if it takes part in or permits through billing.32 And it does not seem necessary for the establishment of a through carriage to prove that a technical through rate has been named.

§ 133. Continuity of interstate shipment.

If the transporting of goods or passengers to an ultimate destination in another State has begun, interstate commerce has begun, and no device to break up the transit into intrastate portions will affect its real nature. So where transportation of goods destined for a point without the State has been actually begun, temporary stoppage within the State without the intention of abandoning the original movement (which movement is ultimately completed), will not deprive the transportation of the character of interstate commerce.33 And so if the goods are first billed to a point in the State of shipment, and at that point are rebilled to their ultimate destination in another State, without breaking of bulk, the whole constitutes a single carriage.34 Neither is the continuity of the shipment broken by a sale of the goods in transitu.35 If, howthe goods are consigned to a dealer and he, selling them before arrival, rebills to the purchaser without

31 Gulf, C. & S. F. Ry. Co. v. Nelson, 4 Tex. Civ. App. 345, 23 S. W.732; Houston & T. C. Ry. Co. v. Williams (Tex. Civ. App.), 31 S. W. 556; Houston & T. C. Ry. Co. v. Davis, 11 Tex. Civ. App. 24, 31 S. W. 308.

32 United States v. Seaboard Ry. Co., 82 Fed. 563.

33 Cutting v. Florida Ry. & Nav. Co., 46 Fed. 641.

34 Texas & P. Ry. Co. v. Avery (Tex. Civ. App.), 33 S. W. 704; Houston, D. & N. Co. v. Insurance Co., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17.

35 Gulf, C. & S. F. Ry. Co. v. Fort Grain Co. (Tex. Civ. App.), 72 S. W. 419.