statute, defense that rates charged were those filed in accordance with Interstate Commerce Act, is valid; Loomis v. Lehigh Valley R. Co., 208 N. Y. 330, 101 N. E. 914, holding State court has no jurisdiction of action to recover cost of lumber used to make cars suitable for interstate shipment of grain, under Interstate Commerce Act prohibiting carrier from making charges different from those of filed schedules and providing for complaint to commerce commission or suit in Federal court; Blalock Hardware Co. v. Seaboard etc. Ry. Co., 170 N. C. 397, 86 S. E. 1027, holding Revisal 1905, §§ 2643, 2644, imposing penalty on carrier for refusal to refund overcharge, is void as to interstate shipment, as in conflict with Carmack Amendment of 1906; Forney v. Seaboard Air Line Ry. Co., 167 N. C. 642, 83 S. E. 687, denying recovery for loss of interstate shipment, where consignee failed to file written claim for loss within time required by bill of lading; Morphis v. Southern Express Co., 167 N. C. 141, 142, 83 S. E. 2, Revisal 1905, § 2634, as amended in 1911, requiring carrier to pay losses within specified time, is superseded as to interstate shipments by rule of Interstate Commerce Commission adopted in 1914; Missouri etc. Ry. Co. v. Lenahan, 39 Okl. 289, 135 Pac. 386, holding Federal Employers' Liability Act supersedes State law, and personal representative, not widow, has right of action for death of employee in interstate commerce; St. Louis etc. R. Co. v. Bilby, 35 Okl. 598, 130 Pac. 1094, holding provision of State Constitution, art. XXIII, § 9, avoiding contracts stipulating for notice other than that provided by law is void as to interstate shipments under amendment of 1906 to Interstate Commerce Act; Chicago etc. Ry. Co. v. Beatty, 34 Okl. 330, 331, 42 L. R. A. (N. S.) 984, 126 Pac. 737, 738, Oklahoma territorial act of 1905, imposing penalty upon carrier for failure to furnish cars within specified time is not in conflict with act of Congress requiring carriers to furnish cars upon reasonable request; Puritan Coal Min. Co. v. Pennsylvania, 237 Pa. 448, 449, Ann. Cas. 1914B, 37, 85 Atl. 435, State court has jurisdiction of action by shipper against railroad for departure from its system of distribution of coal cars, whether intended for intrastate or interstate commerce, in absence of order of Interstate Commerce Commission affecting such system of distribution; Du Pre v. Columbia etc. R. Co., 98 S. C. 472, 79 S. E. 311, holding Carmack Amendment does not supersede act of 1910 (Civil Code 1912, § 2572), imposing penalty upon terminal carrier for failure to pay damages or to inform consignee as to which carrier caused damage; Varnville Furniture Co. v. Charleston etc. Ry. Co., 98 S. C. 69, 72, 79 S. E. 702, 703, holding provision of Civil Code, § 2573, imposing penalty upon carrier for failure to pay claims for overcharges on interstate shipments within specified time, is not superseded by Carmack Amendment; Sargent v. Rutland R. Co., 86 Vt. 342, 85 Atl. 660, laws of 1906 and 1910 relating to demurrage charges, not limited to intrastate com

merce, are void; dissenting opinion in J. M. Pace Mule Co. v. Seaboard Air Line Ry. Co., 160 N. C. 238, 239, 76 S. E. 522, majority holding provision of Interstate Commerce Act, § 20, as amended in 1906, does not deprive shipper of right of action for full value of freight injured in interstate commerce, notwithstanding valuation clause in bill of lading. Explained in J. M. Pace Mule Co. v. Seaboard Air Line Ry. Co., 160 N. C. 227, 76 S. E. 517, holding provision of Interstate Commerce Act, § 20, as amended in 1906, does not deprive shipper of right of action for damages for full value of interstate shipment of freight, notwithstanding valuation clause in bill of lading.

Distinguished in Sonman Shaft Coal Co. v. Pennsylvania R. Co., 241 Pa. 488, 88 Atl. 747, holding State court has jurisdiction of action against interstate carrier for failure to furnish sufficient coal cars; Elliott v. Atlantic Coast Line R. Co., 94 S. C. 135, 75 S. E. 889, holding in action for injuries to interstate shipment, Carmack Amendment does not supersede provision of Virginia Code 1904, § 12941, prohibiting - carrier from making contracts exempting itself from liability for negligence; Morgan v. Cincinnati etc. Ry. Co., 4 Tenn. Civ. 502, holding Tennessee chancery courts have jurisdiction to enjoin illegal discrimination by common carriers, whether engaged in interstate or intrastate

commerce.

Mere creation of Interstate Commerce Commission and grant to it of large measure of control over interstate commerce does not in absence of action by it, change rule that Congress by nonaction leaves power in States over merely incidental matters.

Approved in Missouri etc. Ry. Co. v. Harris, 234 U. S. 417, L. R. A. 1915E, 942, 58 L. Ed. 1381, 34 Sup. Ct. 790, upholding Texas statute of 1909 allowing reasonable attorney's fees in suits on contested claims less than specified amount, as applied to claim on interstate shipment; Savage v. Jones, 225 U. S. 534, 56 L. Ed. 1195, 32 Sup. Ct. 715, upholding Indiana statute of 1907 requiring disclosure of ingredients of concentrated commercial food for stock; Staley v. Illinois Central R. R. Co., 268 Ill. 363, L. R. A. 1916A, 450, 109 N. E. 345, holding Federal Employers' Liability Act governs action for injuries to employee engaged in interstate commerce, and denying recovery under Workman's Compensation Act; Chicago etc. Ry. Co. v. Beatty, 34 Okl. 334, 335, 42 L. R. A. (N. S.) 984, 126 Pac. 739, Oklahoma territorial act of 1905 imposing penalty upon carrier for failure to furnish cars within specified time is not in conflict with act of Congress requiring carriers to furnish cars upon reasonable request; Varnville Furniture Co. v. Charleston etc. Ry. Co., 98 S. C. 69, 73, 79 S. E. 702, 703, holding provision of Civil Code, § 2573, imposing penalty upon carrier for failure to pay claims for overcharges on interstate shipments within specified time, is not superseded by Carmack Amendment.

Explained in J. M. Pace Mule Co. v. Seaboard Air Line Ry. Co., 160 N. C. 230, 231, 76 S. E. 518, 519, holding provision of Interstate Commerce Act, § 20, as amended in 1906, does not deprive shipper of right of action for full value of freight injured in interstate commerce, notwithstanding valuation clause in bill of lading.

Congress by specific provisions in Act to Regulate Commerce as amended has taken control of field of rate making for interstate shipments, including prohibitions relating to discriminations in services, and North Carolina statute requiring carriers to receive and forward shipments "whenever tendered" is in conflict with provisions of Act of 1906, section 1, paragraph 2, requiring carrier to furnish transportation "upon reasonable request therefor."

Approved in Southern Ry. Co. v. Burlington Lumber Co., 225 U. S. 100, 56 L. Ed. 1003, 32 Sup. Ct. 657, and Southern Ry. Co. v. Reid, 222 U. S. 445, 56 L. Ed. 263, 32 Sup. Ct. 140, both following rule; Louisville etc. R. Co. v. Hughes, 201 Fed. 749, Ohio act of 1910 requiring inspection of locomotives is superseded by act of Congress on same subject, as applied to locomotives entering from another State to terminal in State; Cleveland etc. Ry. Co. v. Hayes, 181 Ind. 96, 102 N. E. 38, upholding Interstate Commerce Act, §§ 6, 15, 20; Chicago etc. Ry. Co. v. Beatty, 34 Okl. 330, 331, 42 L. R. A. (N. S.) 984, 126 Pac. 737, 738, upholding act of Oklahoma territory of 1905, imposing penalty upon carrier for failure to furnish cars within specified time; dissenting opinion in Jeans v. Seaboard Air Line. R. Co., 164 N. C. 238, 80 S. E. 247, majority allowing recovery for loss of interstate shipment and penalty imposed by Revisal 1905, § 2633, for failure to deliver goods upon demand after arrival at station in State.

Distinguished in Aldrich v. Southern Ry. Co., 95 S. C. 435, 79 S. E. 319, allowing recovery in action for damages for refusal of carrier to receive interstate shipment at filed rates.

State may enact statutes incidentally burdening interstate commerce in absence of Federal legislation upon subject.

Approved in Louisville etc. R. Co. v. Hughes, 201 Fed. 737, Ohio act of 1910 requiring inspection of locomotives is superseded by act of Congress on same subject as applied to locomotives entering State from another State to terminal in State; Thurston v. Southern Ry. Co., 165 N. C. 600, 81 S. E. 786, upholding Revisal 1905, § 2644, imposing penalty for failure to refund overcharge within time specified by section 2643; Varnville Furniture Co. v. Charleston etc. Ry. Co., 98 S. C. 67, 68, 79 S. E. 701, 702, holding provision of Civil Code, § 2573, imposing penalty upon carrier for failure to pay claim within specified time is not burden on interstate commerce, and is not superseded by Carmack Amendment of 1906.

Effect of Interstate Commerce Act on right of shipper to damages for unlawful discrimination with respect to car supply. Note, Ann. Cas. 1914B, 52.

Miscellaneous. Cited in Southern Ry. Co. v. Thurston, 241 U. S. 642, 60 L. Ed. 1217, 36 Sup. Ct. 446, and Tallulah Falls Ry. Co. v. Mason County Supply Co., 241 U. S. 640, 60 L. Ed. 1216, 36 Sup. Ct. 446, both reversing judgment on authority of principal case.

222 U. S. 444-448, 56 L. Ed. 263, 32 Sup. Ct. 145, SOUTHERN RY. CO. v. REID & BEAM.

Where State and Congress have concurrent power, that of State is superseded when power of Congress is exercised.

Approved in Barrett v. New York, 232 U. S. 33, 58 L. Ed. 491, 34 Sup. Ct. 203, ordinance of New York relating to licensing of expressmen is void as conflicting with Act of Congress of 1906, c. 3591; Louisville etc. R. Co. v. Hughes, 201 Fed. 750, holding Ohio act of 1910 for inspection of locomotive boilers is superseded by Federal act of 1911, relating to same subject, as applied to locomotives coming from another State to terminal in Ohio; Forney v. Seaboard Air Line Ry. Co., 167 N. C. 642, 83 S. E. 687, denying recovery for loss of interstate shipment, where consignee failed to file written claim for loss within time specified by bill of lading; Morphis v. Southern Express Co., 167 N. C. 141, 142, 83 S. E. 2, Revisal 1905, § 2634, as amended in 1911, requiring carrier to pay losses within specified time is superseded as to interstate shipments by rule of Interstate Commerce Commission adopted in 1914.

Distinguished in Morgan v. Cincinnati etc. Ry. Co., 4 Tenn. Civ. 502, holding Tennessee chancery courts have jurisdiction to enjoin illegal discrimination by common carriers, whether engaged in interstate or intrastate commerce.

Congress by specific provisions in Act to Regulate Commerce has taken control of field of rate making for interstate shipments, including discriminations in services; and statute of North Carolina requiring carriers to receive and forward shipment "whenever tendered" over route selected by shipper, is directly contradictory to provision of Act to Regulate Commerce, section 1, paragraph 2, as amended in 1906, requiring carrier to furnish transportation "upon reasonable request therefor."

Approved in Southern Ry. Co. v. Reid, 222 U. S. 443, 56 L. Ed. 262, 32 Sup. Ct. 140, and Southern Ry. Co. v. Burlington Lumber Co., 225 U. S. 100, 56 L. Ed. 1003, 32 Sup. Ct. 657, both following rule; dissenting opinion in Jeans v. Seaboard Air Line R. Co., 164 N. C. 238, 80 S. E. 247, majority allowing recovery for loss of interstate shipment and penalty imposed by Revisal 1905, § 2633, for failure to deliver goods upon demand after arrival at station in State.

222 U. S. 448-452, 56 L. Ed. 265, 32 Sup. Ct. 125, TREAT v. GRAND CANYON RY. CO.

Supreme Court of United States will follow construction given local statute by territorial Supreme Court, where construction is inherently reasonable and is one that protects private rights, where there is no such manifest error as to warrant reversal.

Approved in Mills v. Territory of New Mexico, 235 U. S. 687, 59 L. Ed. 425, 35 Sup. Ct. 203, affirming decree of Supreme Court of New Mexico in suit on bond of bank which was depositary of territorial moneys; Straus v. Foxworth, 231 U. S. 170, 58 L. Ed. 172, 34 Sup. Ct. 42, following territorial court's interpretation of words "in accordance with this act" in New Mexico Laws of 1899, c. 22, § 25, relating to title to property sold at tax sale, as meaning "under this act"; Gray v. Taylor, 227 U. S. 57, 57 L. Ed. 416, 33 Sup. Ct. 199, affirming decision of New Mexico Supreme Court sustaining territorial statute over objection that it was not approved by Governor and was not signed by president of council or speaker of house, where act appears in official copy of Laws of 1909.

222 U. S. 452–459, 56 L. Ed. 267, 32 Sup. Ct. 127, GANDIA v. PETTINGILL,

In absence of express malice or excess, publication of actual facts is not libelous; and in case of mere excess without express malice, only liability is for damages attributable to excess.

Approved in Press Pub. Co. v. Gillette, 229 Fed. 111, 143 C. C. A. 384, affirming judgment for plaintiff in libel action, where comment on plaintiff's criticism, in memorial to President, of policy of administration in dealing with Mexico, went beyond fair and reasonable comment; Ashford v. Evening Star Newspaper Co., 41 App. D. C. 404, holding publication that no record of cancellation by building inspector of items in contract for public improvement was kept "on file in the case" is technically correct for purpose of bringing publication within rule of qualified privilege.

222 U. S. 460-472, 56 L. Ed. 269, 32 Sup. Ct. 128, UNITED STATES v. MCMULLEN.

Sureties on bond of public contractor were not discharged by reason of extensions granted pursuant to contract.

Approved in Plumley v. United States, 226 U. S. 548, 57 L. Ed. 345, 33 Sup. Ct. 139, denying recovery by public contractor of compensation for extra work for failure to comply with provisions of contract requiring changes to be agreed on in writing by contractor and architect and approved by Secretary of Interior.

Distinguished in Bankers' Surety Co. v. Watts, 118 Ark. 495, 177 S. W. 21, holding clause in building contract for penalty of specified