1

provide proper facilities for the interstate carriage of freight and had prevented carriers from obstructing continuous shipments on interstate lines, there was no sanction of agreements limiting liability by stipulation, and until congress had legislated upon it there was no valid objection to the states enforcing their own regulations upon the subject, although they may to that extent affect interstate contracts of carriage.1

§ 31. State regulation under rules of common law in state courts. It is immaterial, in this exercise of the state's lawful power over persons and property within its jurisdiction, whether the enforcement by the state of its power in the regulation of relative rights and duties of persons and corporations within its limits is enacted into a statute or results from the rules of law enforced in the state courts. The state, said the court, has a right to promote the welfare and safety of those within its jurisdiction by requiring carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding.

The state regulations in all of these cases were sustained upon the theory that they are not in themselves regulations of interstate commerce, though they control in some degree the conduct and liability of those engaged in the commerce, and as long as congress had not legislated upon the particular subject, they are to be regarded as legislation in aid of such commerce and as a rightful exercise of the police power of the state to regulate the relative rights and duties of persons and corporations within its limits."

This lawful exercise of the police power of the state over persons and things within its jurisdiction is illustrated by the rulings of the supreme court sustaining the power of the state to regulate the sale of patent rights, or articles covered by letters-patent of the United States. The court said that congress never intended that the patent laws should displace the

1 Richmond, etc. R. Co. v. Tobacco Co., 169 U. S. 311 (1898), 42 L. Ed. 759. While congress has not legis lated upon the forms of bills of lading in interstate commerce, it has, by the enactment of the Harter Act, U. S. Compiled Statutes, 1901, p. 2946, legislated concerning the forms of

maritime bills of lading and controlling the insertion of stipulations therein limiting the responsibility of carriers. See case of The Delaware, 161 U. S. 471 (1896), 40 L. Ed. 776.

2 Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133 (1898), 42 L.Ed. 688.

police powers of the state, that is, those powers by which the health, good order, peace and general welfare of the community are promoted, provided such laws do not discriminate against non-residents.1

32. The concurrent jurisdiction in live stock inspection laws. The concurrent jurisdiction of the state and federal governments in interstate commerce is well illustrated in the matter of state laws regulating the exclusion of diseased cattle. The danger of the communication of disease in driving or otherwise transporting cattle from state to state, has been recognized both in the legislation of the western states as well as in that of the federal government. The right of the state. to protect its people and property against such dangers by reasonable enactments, not going beyond the necessities of the case, has been affirmed in several cases, but this right of protection against diseased cattle did not justify the absolute prohibition against certain cattle within certain seasons. The right of inspection of animals or of anything intended for human food brought into the state from another state is conceded, but such inspection must be reasonable, and a state law is invalid which is burdened with such conditions, as would prevent the introduction into the state of sound meats, the product of animals slaughtered in other states. In this case the act required inspection twenty-four hours before slaughtering, and this necessarily included all meats from animals slaughtered in other states.

§ 33. Effect of congressional legislation upon concurrent power of state.-Congress has legislated on this subject of the transportation of live stock," and has authorized the secretary of agriculture to make investigation and inspect cattle intended for interstate commerce, and made unlawful the transportation of cattle known to be diseased. It was argued that this exercise of the federal power of regulation had the effect of nullifying or suspending the state statutes on the same sub

1 Weber v. Virginia, 103 U. S. 344 313. 34 L. Ed. 455 (1890); Brimmer v. (1881), 26 L. Ed. 565. v. Redman, 138 U. S. 78 (1890), 34 L.

2 Kimmish v. Ball, 129 U. S. 217 Ed. 862.

(1889), 32 L. Ed. 695.

5 Act of May 29, 1884, c. 60, and act

3 Railroad Co. v. Husen, 95 U. S. of August 30, 1890, c. 839, chap. 3

465 (1879), 24 L. Ed. 527

Comp. Stats. pp. 3182 to 3193.

4 Minnesota v. Barber, 136 U. S.

ject. The Supreme Court held, however,' that the act of congress known as the Animal Industry Act did not cover the whole subject of the transportation of live stock from one state to another, and that the statutes of Kansas and Colorado related to matters not covered by such act. The statute of Kansas imposed a civil liability upon the railroad company bringing diseased cattle into the state, and that of Colorado made it a misdemeanor to bring into the state cattle which had been herded within ninety days prior to their importation with cattle having a contageous disease. The court said that the state, not having assumed charge of the matter as involved in interstate commerce, could protect its people and their property against such dangers. When the entire subject of the transportation of live stock from one state to another is taken under direct national jurisdiction and a system devised by which diseased stock may be excluded from interstate commerce, all local or state regulations in respect of such matters and covering the same ground would cease to have any force, whether formally abrogated or not, and such rules and regulations as congress may lawfully prescribe or authorize would alone control. The power, said the court, may thus be suspended until national control is abandoned and the subject thereby left under the police power of the state.

The constitutionality of the statute of August 30, 1890, in so far as it provided for the inspection of the slaughtering and packing within a state, of cattle intended for exportation, was denied by the United States circuit court,3 and a party indicted for bribing an inspector was discharged on the ground that congress had no power to provide for the inspection of a manufacturing business within the limits of a state.

$34. State quarantine laws.-The quarantine law established by the state of Louisiana was also sustained, the court saying that those state quarantine laws were a rightful exercise of the police power of the state for the protection of health, and although some of the rules of this system amounted to

1 Missouri, Kansas & Texas R. Co. V. Haber, 169 U. S. 613 (1898), 42 L. Ed. 878; Reid v. Colorado, 187 U. S. 137 (1902), 47 L. Ed. 108.

2 Rasmussen v. Idaho, 181 U. S. 198 (1901), 45 L. Ed. 820.

3 United States v. Boyer, 85 Fed. Rep. 425 (W. Dist. of Mo.) (1898).

4 Morgan v. Louisiana, 118 U. S. 455 (1886), 30 L. Ed. 237.

regulation of commerce with foreign nations, they belonged to the class which the state could establish until congress acted in the matter by covering the same ground or by forbidding. state laws, and congress had in effect adopted the laws of the state and forbidden interference with their enforcement.1

35. Freedom of interstate commerce.- The right of interstate commerce, that is, the right of conducting traffic and commercial intercourse between the states, is independent of state control, and where freedom of commerce between the states is directly involved, the non-action of congress indicates its will that the commerce should be free and untrammeled, and the states cannot interfere therewith either through their police power or their taxing power.

This freedom of interstate commerce from state control was definitely established as to the taxing power of the state in the case of the State Freight Tax, in 1873, and later, in 1887, in the case of Robbins v. Shelby County Taxing District.3 The freedom of interstate commerce with respect to the police power of the state was also declared in the cases relating to the liquor traffic. Finally, in 1886, in the Wabash Railway case, the Supreme Court held that a statute of a state, intended to regulate or to tax or to impose any other restrictions upon the transmission of persons and property or telegraph messages from one state to another, was not within that class of legislation which the states could enact in the absence of legislation by congress, and that such statutes are void even as to that part of such transmission which may be within the state. The statute of Illinois, therefore, regulating railroad charges was held to have no application as to an interstate shipment even as to that part of the distance which lay within the state of Illinois, and this regulation of interstate commerce from the beginning to the end of the shipment was confided to congress exclusively under the power to regulate commerce among the states.

In 1894 this principle was extended to an interstate bridge, and it was held that the bridge was an instrument of interstate commerce whereon congress alone possessed the power 1 Chapter 53, Rev. Stat. Act of 1878, 20 Stats. at Large, p. 37.

2 See 15 Wall. 232.

3 See supra,

13.

4 See supra, § 9.

5 Wabash R. Co. v. Illinois, 118 U.S. 557 (1886), 30 L. Ed. 244.

to enact a uniform schedule of charges, and that the authority of the state was limited to fixing tolls of such channels of commerce as were exclusively within its territory.' The court, in reviewing the cases, said that in none of the subsequent cases had any disposition been shown to limit or qualify the doctrine laid down in the Wabash case.

The same principle was later applied in holding invalid the dispensary laws of South Carolina regulating the sale of intoxicating liquors and prohibiting their importation,2 the court holding that as the state recognized the sale, manufacture and use of intoxicating liquors as lawful, it could not discriminate against their being imported from other states.

.

The right to carry on commerce among the states is subject only to the regulation of congress, and as to this fundamental right to conduct such commerce, it is not the exercise but the existence of the power in congress which excludes all state control and interference whether under the taxing or the police power.

This freedom from state control in the carrying on of interstate commerce must however be reconciled with the general police power of the state in regulating persons, corporations and property within its jurisdiction, and in determining their relative rights and obligations. Thus while a state cannot impose any tax upon interstate commerce as such, nor restrict the persons or things to be carried therein, nor regulate the rate of tolls, fares or freight, or interfere with through trains, or exclude any lawful subjects of commerce, it can prescribe rules for the construction of railroads and their management and operation for the protection of persons and property. Such rules are not in themselves regulations of interstate commerce, although they may control in some degree the conduct and liability of those engaged in such commerce. While the line of distinction is not always clear between what is a lawful regulation of persons and property within the jurisdiction

1 Covington, etc., Bridge Co. v. cook, 170 U. S. 438 (1898), 42 L. Ed. Kentucky, 154 U. S. 204 (1894), 38 L. 1100.

Ed. 962.

3 Chicago, etc., R. Co. v. Solan, 169 U. S. 133 (1898), 42 L. Ed. 688; Pennsylvania R. Co. v. Hughes, 191 U. S.

477 (1903), 48 L. Ed. 268.