use of bridges over such waters which have been sustained. In the Mobile harbor case cited,' the court said that perhaps some of the divergent views noticed upon this question of state power among former judges, may have arisen from not always bearing in mind the distinction between com merce as strictly defined and its local aids or instrumentalities, or measures taken for its improvement. In the Chicago case the court sustained the state control of the construction, repair and regulation, and use of the bridges over the Chicago river, saying that until congress acted, the power of the state over the bridges was plenary.

In the same class are state laws regulating wharves, piers and docks, the construction of bridges, and establishing ferries over navigable rivers within state jurisdiction. Local regulations, however, cannot impose a tax or charge upon interstate commerce. Thus, while a state can exact a toll or compensation for a specific improvement of a navigable water within its jurisdiction, it cannot exact a license for the use of navigable waters, which is not a charge for any specific improvement.

5

24. The state power as to interstate telegraph companies. A telegraph company doing an interstate business is engaged in interstate commerce, and is recognized by act of congress. It cannot, therefore, be excluded by a state, nor can its interstate messages be taxed by the state. The state may, however, make regulations with respect to building poles, location of wires, and all necessary appliances, which the convenience of the community may require. It can tax intra state messages, and municipalities may charge a reasonable rental for occupation of streets with poles. The state can 1 County of Mobile v. Kimball, 102 U. S. 691 (1980), 26 L. Ed. 238.

5 Huse v. Glover, 119 U. S. 543 (1886). 30 L. Ed. 487; Sands v. Manis

2 Escanaba Co. v. Chicago, 107 U. S. tee River Imp. Co., 123 U. S. 288 (1887), 678 (1882), 27 L. Ed. 442.

3 Packet Co. v. Aiken, 121 U. S. 444 (1887), 30 L. Ed. 976.

4 Cardwell v. Am. Bridge Co., 113 U. S. 205 (1885), 28 L. Ed. 959. As to interstate bridges and ferries and cases cited, see Gloucester Ferry Co. Case, 114 U. S. 196 (1885), 29 L. Ed. 158; St. Clair County v. Interstate Sand & Car Transfer Co., 192 U. S. 454 (1904), 48 L. Ed. 518.

31 L. Ed. 149.

6 Harman v. Chicago, 147 U. S. 396 (1893), 37 L. Ed. 216.

Act of July 24, 1866, Comp. Stats. 5263: Pensacola Tel. Co. v. W. U. Tel. Co., supra.

* Telegraph Co. v. Texas, 105 U. S. 460 (1881), 26 L. Ed. 1067.

9 Telegraph Co. v. Philadelphia, 190 U. S. 160 (1903), 47 L. Ed. 995.

prescribe how messages shall be delivered within the state, whether received from within or without the state,' as this is the exercise of the police authority of the state in its jurisdiction; but on the contrary, the state cannot prescribe how messages received within, but delivered without the state, shall be delivered.2

$25. Concurrent powers in interstate railroad transportation. Not only is the rule established that the state, in the absence of congressional action, may regulate local matters which relate to interstate or foreign commerce, but the state power of regulation has been further extended and held to include a wide field in the exercise of its lawful power over the relations of persons and property in its jurisdiction. The federal power of regulation may be exercised without legislation, as well as with it, and by inaction, congress in effect adopts the local law. State laws regulating the relative rights and duties of persons within the jurisdiction of the state are therefore effective upon interstate carriers.3 The court said in the case cited that it is to this law that persons within the scope of its operation look for the definition of their rights and for the redress of wrongs. "The failure of congress can be construed only as an intention not to disturb what exists, and is the mode by which it adopts, for cases within its power, the rule of the state law, which, until displaced, covers the subject."4

The effect of the enactment of congress upon the police power of the state is illustrated by the ruling of the Supreme Court prior to the enactment of the interstate commerce act," holding valid a statute of Iowa requiring each railroad company annually, in the month of September, to establish passenger and freight rates, and on the first day of October following to put up at all the stations on its road a printed copy of such rates and cause it to remain posted during the year, notwithstanding the act of congress of 18666 authorizing the interstate car

1 W. U. Tel. Co. v. James, 162 U. S. 99 (1876) 23 L. Ed. 819; Chicago, etc. R. 650 (1896), 40 L. Ed. 1105. Co. v. Solan, 169 U. S. 133 (1898), 42 L. Ed. 688.

2 W. U. Tel. Co. v. Pendleton, 122 U. S. 347 (1887), 30 L. Ed. 1187. Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508.

'Sherlock et al v. Alling, 93 U. S.

5 Railroad Co v. Fuller, 17 Wall. 560 (1873), 21 L. Ed. 710. 6 Infra, § 40.

riage of freight. The state statute was held to be simply a police regulation, and that even though it did effect commerce, the question would arise whether it did not fall within that class of cases where state legislation was sustained in the absence of congressional legislation. A similar statute came before the court from Texas after the passage of the interstate commerce act, although the statute had been enacted before.1 The court said that the state law and the national law operated upon the same subjectmatter and prescribed different rules, and that the state statute must therefore give way.

§ 26. State Suuday laws and interstate transporation.Included in this range of the concurrent state power regulating persons within the jurisdiction and affecting interstate commerce are Sunday laws, prohibiting the running of freight trains on Sunday. The court said such a law merely established a rule of civil conduct applicable to all freight trains, domestic as well as interstate, and to all similar traffic.

The court in this case sustained a Georgia statute and quoted from the opinion of the supreme court of that state which said that the legislature had the right to enforce a day of rest as a civil duty, although men might differ as to the religious duty.

§ 27. State laws as to qualifications of employees and safety of the public. The principle has been extended to include laws which establish a standard of qualifications for railroad employees on interstate as well as local trains, for example, color blindness of engineers. The court said in the latter case that it was a principle fully recognized that wherever there is danger to the public in the conduct of a business, it was not only within the power, but the plain duty of a state to make provision against accidents likely to follow. State laws requiring the heating of passenger cars, requiring guard posts on railroad bridges and trestles, the protection of surface crossings in cities, and the regulation of speed in municipal limits," are sustained upon the same principle. The court said that trav

1 Gulf, Colo. etc. R. Co. v. Helfley, 158 U. S. 98 (1895), 39 L. Ed. 910.

2 Hennington v. Georgia, 163 U. S. 299 (1896), (Fuller, C. J. and White, J., dissenting), 41 L. Ed. 166.

3 Smith v. Alabama, 124 U. S. 465 (1888), 31 L. Ed. 508; Nashville, etc.

R. Co. v. Alabama, 128 U. S. 96 (1888), 32 L. Ed. 352.

4 N. Y., N. H. & H. R. Co. v. New York, 165 U. S. 628 (1897), 41 L. Ed. 853.

5 Erb v. Morasch, 177 U. S. 584 (1900), 44 L. Ed. 897.

elers on interstate trains are as much entitled, while within a state, to the protection of that state as those who travel on domestic trains.

Congress has also enacted legislation, as will be seen hereafter, for the safety of employees and the prevention of accidents in interstate commerce. These acts, as the Accident Act, infra, § 373, and the Safety Act, infra, § 354, are by their terms applicable to all railroads engaged in interstate commerce. From the nature of the subject it is difficult to say when the enactment of such legislation by congress so covers the ground as to make inoperative state legislation bearing upon the same subject. Under the ruling laid down by the supreme court in the live stock cases (see infra, §33), the state statute enacted for the protection of employees and travelers within its jurisdiction, must be taken as valid, unless the same subject is taken under direct national supervision in the exercise of the lawful power of congress over interstate commerce.

§ 28. State laws concerning separation of races in interstate traffic. A state can regulate the separation of races in railroad transportation on trains within the state,' but it cannot determine whether interstate passengers shall be compelled to share their cabin accommodations, as that is a question of interstate commerce to be determined by congress alone. A statute of Louisiana enacted in 1869, prohibiting discrimination on account of race, was held inapplicable to a Mississippi steamboat engaged in commerce between the states; while the state laws providing for separate cars within the state, were sustained.

§ 29. Limitation of state power in stoppage of through trains. The limitation of the state's power of regulation in relation to interstate commerce is illustrated by the rulings of the supreme court upon state laws requiring the stoppage of trains at certain stations.

A statute of Minnesota requiring every railroad company to stop all regular trains at county seats, but providing that it should not apply to other railroad trains entering the state

1L, N. O. & T. R. Co. v. Mississippi, 133 U. S. 587) 1890), 33L. Ed. 784, distinguishing Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547; C. & O. R. Co. v. Ken

tucky, 179 U. S. 388, 45 L. Ed. 244; Plessy v. Ferguson, 163 U. S. 537 (1896), 41 L. Ed. 256.

2 Hall v. De Cuir, supra.

from another state, or to transcontinental trains from another state, was sustained as to a train connecting with an interstate train and carrying mails and some interstate passengers for that train. This case, however, was decided upon its special facts, as the train was run wholly within the state. A statute of Illinois was held invalid which required all regular passenger trains to stop a sufficient length of time at county seats to receive and let off passengers with safety, as a direct interference with interstate traffic. This statute was held invalid both as to a county seat station which was three and one-half miles from the direct road and also as to a county seat station which was on the direct line.3 In the case last cited the court reviewed the previous decisions and said that none of them were opposed to the principle that, after all local conditions had been adequately made, railways had the legal right to adopt special provisions for through traffic, and that legislative interference there with was unreasonable and an infringement upon the constitutional guaranty of the freedom. of interstate commerce.

30. State regulation of contractual relations of interstate railroad and shippers.-The contract relations of interstate railroads with their shippers must be determined, in the absence of congressional legislation, by the local law of the place where the contract is made. State statutes regulating the contractual relations and changing the common law rules. controlling such relations are within the scope of the state's regulating power. Thus, statutes permitting the carrier to limit his common law liability to a stipulated valuation, regu lating the effect of an agreement limiting liability to the carrier's own line in a shipment to be made over other lines, and also prohibiting contractual exemption from any common law liability of the carrier, have been sustained. In the Hughes case it was said by the supreme court, in allowing a judg ment against an interstate carrier in excess of the amount limited in the bill of lading on the ground that no federal right was denied, that although congress had made it obligatory to

1 Gladson v. Minnesota, 166 U. S. 427 (1897), 41 L. Ed. 1064.

2 Illinois Central R. Co. v. Illinois, 163 U. S. 142 (1896), 41 L. Ed. 107.

3 Cleveland, etc. R. Co. v. Illinois, 177 U. S. 514 (1900), 44 L. Ed. 868. 4 Pennsylvania R. Co. v. Hughes, 191 U. S. 477 (1903), 48 L. Ed. 268.