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cago & N. W. R. Co. v. Fuller, 17 Wall. state commerce cannot be relied upon as 560-570, 21 L. ed. 710-714; Morgan's furnishing an answer. They deal with L. & T. R. & S. S. Co. v. Board of the conduct of private persons in matters Health, 118 U. S. 455, 463, 465, 30 L. ed. in which the states as well as the general 237, 241, 242, 6 Sup. Ct. Rep. 1114; government have an interest, and which Nashville, C. & St. L. R. Co. v. Ala- would be wholly under the control of bama, 128 U. S. 96, 99, 100, 32 L. ed. the states but for the supervening des352-354, 2 Inters. Com. Rep. 238, 9 tination and the ultimate purpose of the Sup. Ct. Rep. 28; Sherlock v. Alling, acts. Here the question is whether the 93 U. S. 99, 102, 23 L. ed. 819, 820; state can interrupt the acts of the genSmith v. Alabama, 124 U. S. 465, 31 eral government itself. With regard to L. ed. 508, 1 Inters. Com. Rep. 804, 8 taxation, no matter how reasonable, or Sup. Ct. Rep. 564; Atlantic Coast Line how universal and undiscriminating, the R. Co. v. Georgia, 234 U. S. 286, 291, state's inability to interfere has been re294, 58 L. ed. 1312, 1317, 1319, 34 Sup. garded as established since M'Culloch Ct. Rep. 829; Chicago, R. I. & P. R. v. Marvland, 4 Wheat. 316, 4 L. ed. 579. Co. v. Arkansas, 219 U. S. 453, 55 The decision in that case was not put L. ed. 290, 31 Sup. Ct. Rep. 275; Wil- upon any consideration of degree, but son v. Black Bird Creek Marsh Co. 2 upon the entire absence of power on the Pet. 245, 251, 252, 7 L. ed. 412, 414; part of the [56] states to touch, in Cooley v. Port Wardens, 12 How. 299, that way, at least, the instrumental13 L. ed. 996; Cushing v. The John ities of the United States (4 Wheat. Fraser (The James Gray v. The John 429, 430), and that is the law toFraser) 21 How. 184, 187, 15 L. ed. day. Farmers & M. Sav. Bank v. Min106, 108; Lane County v. Oregon, 7 nesota, 232 U. S. 516, 525, 526, 58 Wall. 71, 19 L. ed. 101; Stone v. Mis- L. ed. 706, 711, 34 Sup. Ct. Rep. 354. sissippi, 101 U. S. 814, 25 L. ed. 1079; A little later the scope of the propoOpinion of Attorney-General Gregory, sition as then understood was indicated May 7, 1917, unreported; Parkersburg in Osborn v. Bank of the United & O. River Transp. Co. v. Parkersburg, 107 U. S. 691, 699, 27 L. ed. 584, 587, 2 Sup. Ct. Rep. 732; Huse v. Glover, 119 U. S. 543, 548, 549, 30 L. ed. 487, 490, 7 Sup. Ct. Rep. 313; Monongahela Nav. Co. v. United States, 148 U. S. 312, 329, 330, 37 L. ed. 463, 469, 13 Sup. Ct. Rep. 622.

Mr. J. Purdon Wright also argued

the cause for defendant in error.

States, 9 Wheat. 738, 867, 6 L. ed. 204, 234: "Can a contractor for supplying a military post with provisions be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? Or could he be fined or taxed for doing so? We have not yet firmative." In more recent days the heard these questions answered in the afprinciple was applied when the governor of a soldiers' home was convicted for dis

Mr. Justice Holmes delivered the opin-regard of a state law concerning the use

ion of the court:

The plaintiff in error was an employee of the Postoffice Department of the United States, and, while driving a government motor truck in the transportation of mail over a post road from Mt. Airy, Maryland, to Washington, was arrested in Maryland, and was tried, convicted, and fined for so driving without having obtained a license from the state. He saved his constitutional rights by motion to quash, by special pleas, which were overruled upon demurrer, and by motion in arrest of judgment. The facts were admitted, and the naked question is whether the state has power to require such an employee to obtain a license by submitting to an examination concerning his competence and paying $3, before performing his official duty in obedience to superior command.

the inmates of the home as part of their of oleomargarin, while furnishing it to rations. It was said that the Federal officer was not "subject to the jurisdiction of the state in regard to those very

matters of administration which are thus Ohio v. Thomas, 173 U. S. 276, 283, 43 approved by the Federal authority." L. ed. 699, 701, 19 Sup. Ct. Rep. 453. It seems to us that the foregoing decisions establish the law governing this

case.

Of course, an employee of the United States does not secure a general immunity from state law while acting in the course of his employment. That was de-. cided long ago by Mr. Justice Washington in United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15,316; 5 Ops. Atty. Gen. 554. It very well may be that,

The cases upon the regulation of inter- when the United States has not spoken,

the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment, as, for instance, a statate or ordinance regulating the mode of turning at the corners of streets. Com. v. Closson, 229 Mass. 329, L.R.A.1918C, 939, 118 N. E. 653. This might stand on much the same footing as liability under the common law of a state to a person injured by the driver's negligence. But even the most unquestionable and most universally applicable of state laws, such as those concerning [57] murder, will not be allowed to control the conduct of a marshal of the United States, acting under and in pursuance of the laws of the United States. Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep.

658.

charges within the switching limits, where
the line-haul carrier competes with the
switching line, and to refuse to absorb such
charges when the switching line does not
compete with the line-haul carrier, may be
forbidden by the Interstate Commerce Com-
mission as being unjustly discriminatory
and unlawful, under the Act of February 4,
1887, § 2, which prohibits any carrier from
charging or receiving from any person a
greater compensation than it receives from
another person for doing for him a like
and contemporaneous service under substan-
tially similar circumstances and conditions.
[For other cases, see Carriers, III. e, in Digest

Sup. Ct. 1908.]

Interstate Commerce Commission findings of fact judicial review.

2. Findings of fact by the Interstate Commerce Commission upon questions, the determination of which is by law imposed upon the Commission, can be disturbed by judicial decree only in cases where the Commission's action is arbitrary, or transcends the legitimate bounds of its authority.

[For other cases, see Interstate Commerce Com

mission, in Digest Sup. Ct. 1908.] Interstate Commerce Commission order vagueness or uncertainty. 3. An order of the Interstate Commerce

It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer, upon examination, that they are competent for a necessary part of them, and pay a fee Commission directing railway carriers enfor permission to go on. Such a require-tering a specified city to desist from absorbment does not merely touch the govern- ing switching charges on certain interstate ment servants remotely by a general rule carload freight, while refusing to absorb of conduct; it lays hold of them in their such charges on like carload shipments for specific attempt to obey orders, and re- a like and contemporaneous service under quires qualifications in addition to those substantially similar circumstances and that the government has pronounced suf- conditions, such practices having been found ficient. It is the duty of the Depart-within the Act of February 4, 1887, § 2, to be unjustly discriminatory and unlawful, ment to employ persons competent for and to establish on or before a specified their work, and that duty it must be pre-date, and thereafter to maintain, uniform sumed has been performed. Keim v. United States, 177 U. S. 290, 293, 44 L. ed. 774, 775, 20 Sup. Ct. Rep. 574. Judgment reversed.

regulations and practices for the absorption of charges for the switching of interstate carload freight at that city, and to collect no higher rates or charges on such freight than they contemporaneously collect from other shippers or receivers at that point for

Mr. Justice Pitney and Mr. Justice a like and contemporaneous service under McReynolds dissent.

SEABOARD AIR LINE RAILWAY COM-
PANY, Seaboard

Air Line Railway,

Southern Railway Company, and Atlan

substantially similar circumstances and conditions, is not too vague and uncertain to be enforceable.

[For other cases, see Interstate Commerce Commission, in Digest Sup. Ct. 1908.]

[No. 27.]

tic Coast Line Railroad Company, Appts., Argued October 8 and 11, 1920. Decided

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November 8, 1920.

[blocks in formation]

APPEAL from the District Court of the roads which make up the new and

the United States for the Eastern independent line. District of Virginia to review a decree dismissing the petition in a suit to enjoin the enforcement of an order of the Interstate Commerce Commission regulating the absorption of switching charges. Affirmed.

See same case below, 249 Fed. 368. The facts are stated in the opinion. Messrs. Claudian B. Northrop and Frank W. Gwathmey argued the cause and filed a brief for appellants:

Section 2 of the Interstate Commerce Act has no application whatever except where the haul is over the same line, the same distance, under the same circumstances of carriage.

Wight v. United States, 167 U. S. 512, 518, 42 L. ed. 258, 259, 17 Sup. Ct. Rep. 822; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 166, 167, 42 L. ed. 414, 423, 18 Sup. Ct. Rep. 45; 2 Ann. Rep. I. C. C. (1888) p. 89; Lancashire & Y. R. Co. v. Greenwood, L. R. 21 Q. B. 217, 55

L. T. N. S. 58.

The Wight Case is conclusive of the

case at bar.

Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822.

Each station is a point of departure or arrival; not entire city, district, or community.

Denaby Main Colliery Co. v. Manchester, S. & L. R. Co. L. R. 11 App. Cas. 97, 55 L. J. Q. B. N. S. 181, 54 L. T. N. S. 1, 50 J. P. 340, 6 Eng. Ry. & C. Traffic Cas. 133; Murray v. Glasgow & S. W. R. Co. 11 Sc. Sess. Cas. 4th series, 205; Lancashire & Y. R. Co. v. Greenwood, L. R. 21 Q. B. 215, 55 L. T. N. S. 58; Chicago Stock Yards Cases (Interstate Commerce Commission Chicago, B. & Q. R. Co. 186 U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. Rep. 824; Commerce Commission Stickney, 215 U. S. 98, 54 L. ed. 30 Sup. Ct. Rep. 66).

Interstate

V.

V.

112,

Switching is a part of railroad transportation, and drayage is not and never

has been.

Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed. 517, P.U.R.1915A, 840, 35 Sup. Ct. Rep. 275; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. Rep. 986.

When two or more railroads form a through route at a through rate, a new and independent line is constituted which is not the same line as either of

Chicago & N. W. R. Co. v. Osborne, 52 Fed. 912; Re Through Routes & Through Rates, 12 Inters. Com. Rep. 166; Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 56 L. ed. 556, 32 Sup. Ct. Rep. 316. This court has defined the phrase "like and contemporaneous service."

Party Rate Case (Interstate Com-
merce Commission v. Baltimore & O. R.
Co.) 145 U. S. 263, 36 L. ed. 699, 4 In-
ters. Com. Rep. 92, 12 Sup. Ct. Rep. 844;
Union P. R. Co. v. United States, 117
U. S. 355, 29 L. ed. 920, 6 Sup. Ct. Rep.
772; Union P. R. Co. v. United States,
104 U. S. 663, 26 L. ed. 884; Texas & P.

R. Co. v. Interstate Commerce Commis-
sion, 162 U. S. 197, 231, 40 L. ed. 940,
951, 5 Inters. Com. Rep. 405, 16 Sup.
Ct. Rep. 666; Bitterman v. Louisville &
N. R. Co. 207 U. S. 205, 52 L. ed. 171,
28. Sup. Ct. Rep. 91, 12 Ann. Cas. 693.
See also Interstate Commerce Commis-
sion v. Baltimore & O. R. Co. 3 Inters.
Com. Rep. 192, 43 Fed. 37; United States
V. Chicago & N. W. R. Co. 62 C. C. A.
465, 127 Fed. 785.

Mr. Blackburn Esterline, Special As-
sistant to the Attorney General, argued
the cause, and, with Solicitor General
Frierson, filed a brief for the United
States:

The findings of the Commission are conclusive that the traffic on which the switching charges are absorbed or nonabsorbed is handled in the Richmond switching district under similar circumstances and conditions.

Atchison, T. & S. F. R. Co. v. United States, 231 U. S. 736, 58 L. ed. 460, 34 Sup. Ct. Rep. 316; Baltimore & O. R. Co. v. United States, 215 U. S. 481, 494, 54 L. ed. 292, 297, 30 Sup. Ct. Rep. 164; Cincinnati, H. & D. R. Co. v. Interstate Commerce Commission, 206 U. S. 142, 154, 51 L. ed. 995, 1001, 27 Sup. Ct. Rep. 648; Interstate Commerce Commission v. Chicago, R. I. & P. R. Co. 218 U. S. 88, 110, 54 L. ed. 946, 958, 30 Sup. Ct Rep. 651; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 470, 477, 54 L. ed. 280, 287, 290, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Louisville & N. R Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Interstate Commerce Commission v. Union P. R. Co. 222 U. S. 541, 547, 56 L. ed. 308, 311, 32 Sup. Ct. Rep. 108; Illinois C. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 454, 457, 466, 51 L. ed. 1128, 1133, 254 U. S.

1

Co. v. Commercial Bank, 123 U. S. 727, 734, 31 L. ed. 287, 290, 8 Sup. Ct. Rep. 266; Interstate Commerce Commission v. Chicago, B. & Q. R. Co. 186 U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. Rep. 824, 4 Elliott, Railroads, 2d ed. §§ 1521, 1522, and cases cited.

This court has several times construed § 2 of the Interstate Commerce Act.

1134, 1138, 27 Sup. Ct. Rep. 700; Los, ington Stock-Yards Co. v. Keith, 139 Angeles Switching Case (Interstate U. S. 128, 135, 35 L. ed. 73, 76, 11 Sup. Commerce Commission v. Atchison, T. Ct. Rep. 469; North Pennsylvania R. & S. F. R. Co.) 234 U. S. 294, 58 L. ed. 1319, 34 Sup. Ct. Rep. 814; Louisville & N. R. Co. v. United States, 238 U. S. 1, 59 L. ed. 1177, 35 Sup. Ct. Rep. 696; O'Keefe v. United States, 240 U. S. 294, 60 L. ed. 651, 36 Sup. Ct. Rep. 313; Pennsylvania Co. v. United States, 236 U. S. 351, 59 L. ed. 616, P.U.R.1915B, 261, 35 Sup. Ct. Rep. 370; Pre-cooling Case (Atchison, T. & S. F. R. Co. v. United States) 232 U. S. 199, 58 L. ed. 568, 34 Sup. Ct. Rep. 291; Procter & G. Co. v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep. 761; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 233, 40 L. ed. 940, 952, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; United States v. Louisville & N. R. Co. 235 U. S. 314, 59 L. ed. 245, 35 Sup. Ct. Rep. 113; United States v. Merchants & Mfrs. Traffic Asso. 242 U. S. 178, 61 L. ed. 233, 37 Sup. Ct. Rep. 24.

Interstate Commerce Commission v. Baltimore & O. R. Co. 145 U. S. 263, 281, 36 L. ed. 699, 705, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. 844; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 218, 40 L. ed. 940, 947, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 166, 167, 42 L. ed. 414, 423, 18 Sup. Ct. Rep. 45; Interstate "under substantially Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 252, 253, 55 L. ed. 448, 457, 31 Sup. Ct. Rep. 392; Lehigh Valley R. Co. v. United States, 243 U. S. 444-446, 61 L. ed. 839-841, 37 Sup. Ct. Rep. 397; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633, 644, 42 L. ed. 306, 310, 17 Sup. Ct. Rep. 986; St. Louis Southwestern R. Co. v. United States, 245 U. S. 136, 139, 62 L. ed. 199, 206, 38 Sup. Ct. Rep. 49.

The phrase, similar circumstances and conditions," as written in § 2, refers to matters of carriage, and does not include competition.

Delaware, L. & W. R. Co. v. Interstate Commerce Commission, 166 Fed. 499; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 166, 42 L. ed. 414, 423, 18 Sup. Ct. Rep. 45; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 253, 55 L. ed. 448, 457, 31 Sup. Ct. Rep. 392; Lehigh Valley R. Co. v. United States, 243 U. S. 444-446, 61 L. ed. 839-841, 37 Sup. Ct. Rep. 397; Pennsylvania R. Co. v. International Coal Min. Co. 97 C. C. A. 383, 173 Fed. 1; Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822.

Mr. Charles W. Needham argued the cause, and, with Mr. P. J. Farrell, filed a brief for the Interstate Commerce Commission:

The switching of cars performed by and for the line carrier in the receipt and delivery of freight is service essential to, and embraced within, the undertaking to transport the property.

Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U. S. 294, 310, 58 L. ed. 1319, 1327, 34 Sup. Ct. Rep. 814; Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed. 517, P.U.R.1915A, 840, 35 Sup. Ct. Rep. 275; Hutchinson, Carr. 3d ed. § 711; Cov

Findings of fact by the Commission are conclusive.

Procter & G. Co. v. United States, 225 U. S. 282, 297, 298, 56 L. ed. 1091, 1096, 1097, 32 Sup. Ct. Rep. 761; United States v. Louisville & N. R. Co. 235 U. S. 314, 320, 59 L. ed. 245, 250, 35 Sup. Ct. Rep. 113.

[59] Mr. Justice Day delivered the opinion of the court:

In this case a petition was filed in the district court of the United States for the eastern district of Virginia to enjoin an order of the Interstate Commerce Commission concerning the absorption of switching charges on the lines of the Seaboard Air Line Railway Company, the Seaboard Air Line Railway, Southern Railway Company, and Atlantic Coast Line Railway Company within the switching limits of these roads as established at Richmond, Virginia.

The Commission's order was made upon a petition of the Richmond Cham

"

The district court denied the application for an injunction, and ordered that the petition be dismissed. 249 Fed. 368.

The contention of the appellants is that the carriage is not a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.

Section 2 of the Act to Regulate Commerce provides:

ber of Commerce, averring that the prac-| per or receiver of such carload freight at tice of the railroads was discriminatory Richmond, Virginia, for a like and conand unlawful, and violative of § 2 of temporaneous service under substantialthe Act to Regulate Commerce. From ly similar circumstances and conditions." the facts found by the Commission it 44 Inters. Com. Rep. 455. appears that the appellant railroad companies bring freight from the South to Richmond, Virginia, where the same is delivered to industries in the switching limits of that city. If the freight is received at a point served by any two or more of the carriers, the switching charge is absorbed if the freight be delivered on the line of either. But if the delivery is to an industry served only by a noncompetitive carrier, the switching charge is not absorbed. The Commission illustrated the point by an example: "Oxford, North Carolina, is a point reached both by the Southern and the Seaboard, but not by the Chesapeake & Ohio. Norlina, North Carolina, is a local point on the Seaboard. Assume that industries A, B, and C [referring to a diagram] on the Seaboard, the Southern, and the Chesapeake & Ohio, respectively, are similarly located with regard to the interchange tracks of the three carriers at Richmond. On traffic from Oxford to industry B on the Southern, the Seaboard will absorb the Southern's switching charges. But on traffic from Oxford to industry C, on the Chesapeake & Ohio, the Seaboard refuses to absorb the Chesapeake & Ohio's switching [60] charges. On traffic from and to Norlina, a local point, however, the Seaboard refuses to absorb all switching charges whatsoever to any off-line industry."

"That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, [61] in the transportation of passengers or property, subject to the provisions of this act, than it charges demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." February 4, 1887, 24 Stat. at L. 379, chap. 104, Comp. Stat. § 8564, 4 Fed. Stat. Anno. 2d ed. p. 371. Upon this controversy the Commission, in its report, said:

Seaboard

The order complained of directed the "Complainant insists that when the three carriers to cease and desist, on or line-haul carrier reaches the common before August 1, 1917, and thereafter to point and competes for the traffic abstain, from absorbing switching to or from Richmond proper, the abcharges on certain interstate carload sorption of the switching charges freight at Richmond, Virginia, while re- should not be confined to that traffic fusing to absorb such charges on like for which the switching line comcarload shipments for a like and con- petes for the entire haul. That is, if temporaneous service under substantial- the absorbs the switchly similar circumstances and conditions, ing charges for the shipper on the termisuch practices having been found in a nal tracks of the Southern, it should supplemental report to be unjustly dis- also absorb the switching charges for the criminatory and unlawful within § 2 of shipper on the terminal tracks of the the Act to Regulate Commerce; and "to Chesapeake & Ohio. Unless this is done, establish, on or before August 1, 1917, complainant contends that the two shippers are not upon an equality, since the Seaboard pays for a delivery service to shippers on the terminal tracks of the Southern, and declines to pay for a similar delivery service to shippers on the terminal tracks of the Chesapeake & Ohio. .

and thereafter to maintain and apply uniform regulations and practices for the absorption of charges for the switching of interstate carload freight at Richmond, Virginia, and to collect no higher rates or charges from shippers and receivers of such carload freight at Richmond, Virginia, than they contemporaneously collect from any other ship

"Section 2 is primarily directed against discrimination between shippers

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