On September 15, 1906, the Larabee Flour Mills Company
(hereinafter called the mill company) filed its application in the
Supreme Court of Kansas for an alternative writ of mandamus
compelling the Missouri Pacific Railway Company (hereinafter called
the Missouri Pacific) to restore, resume, and make transfer of cars
between the lines of the Atchison, Topeka & Santa Fe Railway
Company (hereinafter called the Santa Fe) and the mill and
elevators of the plaintiff, situated in the Town of Stafford. The
following diagram shows the location of the mill and railroad
tracks:
Page 211 U. S. 613
image:a
Page 211 U. S. 614
Line "A" represents the main line of the Santa Fe Railway
Company; line "B," the main line of the Missouri Pacific Railway
Company; line "C," the transfer track owned by the Santa Fe
Company; "D," the mill of the Larabee Company; "E," the spur track
running from the main line of the Missouri Pacific Railway Company.
The distance from "F" to "G" on the main line of the Missouri
Pacific Railway Company is about one mile.
Upon the filing of this application and the answer and return of
the Missouri Pacific, the matter was referred to a commissioner who
reported his findings of fact, which, so far as are material to the
questions presented, are as follows: Stafford is a flourishing town
of 1,600 people, situated in the midst of a wheat-growing district
of the state. The mill company has, for more than four years, been
operating a flouring mill of 1,000 barrels daily capacity. About
three fifths of its product is shipped out of the State of Kansas
into other states, and the remaining two fifths to points within
the state. It receives a large portion of its grain in carload lots
over the two roads.
The Missouri Valley Car Service & Storage Association
(hereinafter called the car service association) is an
unincorporated voluntary association of a number of railroad
companies, having a manager and other employees. The object and the
duty of this association is to represent and protect the interests
and enforce the rights of the members thereof in the interchange of
freight cars, the prompt loading, unloading, and return of cars
interchanged or delivered to shippers for traffic purposes. It had
been in operation for many years, commencing prior to any of the
transactions mentioned in this litigation. Its objects, operations,
and methods were generally understood by commercial shippers, and
acquiesced in as appropriate for securing to the shipping public
the greatest amount of service over the roads composing it.
No express contract existed between the two railroad companies
requiring either to use or to permit the other to use the transfer
track, or requiring either to place empty or loaded cars
Page 211 U. S. 615
thereon, to be taken away or returned by the other. Whenever the
Santa Fe placed its empty cars for the mill company on the transfer
track, the Missouri Pacific, upon notice thereof, hauled and
delivered them at the mill on the siding connecting it with the
Missouri Pacific. The Santa Fe and the Missouri Pacific both held
themselves out as ready to do such and like transferring, and
continued to do so after the controversy arose in this case for all
industries located on the Missouri Pacific at Stafford, making
carload shipments in or our over the Santa Fe, except the mill
company. A controversy arose between the Missouri Pacific and the
mill company as to two charges for demurrage; one for demurrage
between December 12, 1905, and April 26, 1906, and the other
between July 24 and August 14, 1906. Payment of both was demanded
by the car service association. One of them, the mill company
offered to pay; the other it refused, on the ground that the delay
and detention were not caused by its fault, but by the defective,
insufficient, and inadequate service of the Missouri Pacific in
placing the cars for unloading and reloading. For a failure to pay
both these charges the Missouri Pacific, by the direction of the
car service association, ceased and refused to make further
delivery to the mill company of empty cars placed on the transfer
track for the use of the mill company by the Santa Fe, in
consequence of which the mill company, when desiring to ship any of
its products from Stafford by the Santa Fe, was compelled to haul
the same in wagons from its mill to the station of the Santa Fe and
there load into cars. This entailed upon the mill company great
inconvenience and additional expense in the management of its
business. The refusal of the Missouri Pacific was based solely upon
the ground above stated, and not upon a claim that the compensation
paid for the service was unsatisfactory, or that the service
constituted a part of interstate commerce, or that the Missouri
Pacific did not undertake to perform services of such
character.
The commissioner also found that the detention of the cars on
account of which the demurrage charge was refused payment
Page 211 U. S. 616
by the mill company was caused as much by the defective motive
power and insufficient train service of the Missouri Pacific as
from any fault or omission on the part of the mill company.
The case coming on for hearing before the supreme court of the
state, a peremptory writ of mandamus was ordered, commanding the
Missouri Pacific to immediately resume the transfer and return of
cars loaded and unloaded from the line of the Santa Fe to and from
the mill and elevator at the station and city of Stafford, upon the
request and demand of the mill company, and upon payment of the
theretofore customary charges.
Page 211 U. S. 619
MR. JUSTICE BREWER delivered the opinion of the Court.
All questions arising under the Constitution and laws of the
State of Kansas are settled adversely to the plaintiff in error by
the decision of the supreme court of the state.
Merchants' Bank
v. Pennsylvania, 167 U. S. 461, and
cases cited in the opinion. This brings within a narrow range the
controversy which this Court is called upon to decide.
Coming directly to that, counsel for plaintiff in error contend
that no duty was imposed on the railroad company by act of the
legislature or mandate of commission or other administrative board.
Conceding this, it is also true that the Missouri Pacific was a
common carrier, and, as such, was engaged in the work of
transferring cars from the Santa Fe track to the mill company, and,
after this controversy arose, continued like transfer for all
industries located on the Missouri Pacific at Stafford, except the
mill company. While no one can be compelled to engage in the
business of a common carrier, yet, when he does so, certain duties
are imposed which can be enforced by mandamus or other suitable
remedy. The Missouri Pacific engaged in the business of
transferring cars from the Santa Fe track to industries located at
Stafford, and continued to do so for all parties except the mill
company. So long as it engaged in such transfer, it was bound to
treat all industries at Stafford alike, and could not refuse to do
for one that which it was doing for others. No legislative
enactment, no special mandate from any commission or other
administrative board, was necessary, for the duty arose from the
fact that it was a common carrier. This lies at the foundation of
the law of common carriers. Whenever one engages in that business,
the obligation of equal service to all arises, and that obligation,
irrespective of legislative action or special mandate, can be
enforced by
Page 211 U. S. 620
the courts. Neither is there any significance in the absence of
a special contract between the Missouri Pacific and the mill
company. It appears that the practice theretofore had been for the
Missouri Pacific to charge the Santa Fe for the transfer -- that
the latter collected the total freight and paid the Missouri
Pacific its switching charges. There is no suggestion that the
amount of this charge was changed in favor of any other shipper;
and, so long as that was so, it was the charge which the Missouri
Pacific was entitled to make for cars transferred at the instance
of the mill company. If, in the future, a change is made in behalf
of shippers generally, undoubtedly that change can be made
operative in respect to the mill company. Indeed, all these
questions are disposed of by one well established proposition, and
that is that a party engaging in the business of a common carrier
is bound to treat all shippers alike, and can be compelled to do so
by mandamus or other proper writ.
But the main contention on the part of the Missouri Pacific runs
along an entirely different line. It is that the Missouri Pacific
and the Santa Fe are common carriers, engaged in interstate
commerce, and, as such, are subject to the control of Congress, and
therefore in these respects not amenable to the power of the state.
It appears from the findings that about three-fifths of the flour
of the mill company is shipped out of the state, while the other
two-fifths is shipped to points within the state. In addition, the
hauling of the empty cars from the Santa Fe track to the mill was,
if commerce at all, commerce within the state.
The roads are therefore engaged in both interstate commerce and
that within the state. In the former, they are subject to the
regulation of Congress; in the latter, to that of the state; and,
to enforce the proper relation between Congress and the state, the
full control of each over the commerce subject to its dominion must
be preserved.
Fairbank v. United States, 181 U.
S. 283. How the separateness of control is to be
accomplished it is unnecessary to determine. Its existence is
recognized in the
Page 211 U. S. 621
first section of the Interstate Commerce Act of February 4,
1887, 24 Stat. 379, c. 104, as well as in that of June 29, 1906, 34
Stat. 584, c. 3591, for each provides:
"That the provisions of this act shall not apply to the
transportation of passengers or property, or to the receiving,
delivering, storage, or handling of property, wholly within one
state, and not shipped to or from a foreign country, from or to any
state or territory, as aforesaid."
This case does not rest upon any distinction between interstate
commerce and that wholly within the state. It is the contention of
counsel for the mill company that it comes within the oft-repeated
rule that the state, in the absence of express action by Congress,
may regulate many matters which indirectly affect interstate
commerce, but which are for the comfort and convenience of its
citizens. Of the existence of such a rule there can be no question.
It is settled and illustrated by many cases.
Thus, in
Cooley v. Board of Wardens of
Port of Philadelphia, 12 How. 299, it was held that
a regulation of pilots and pilotage was a regulation of commerce
within the grant of the power of Congress; but further that (p.
53 U. S.
319):
"The mere grant of such a power to Congress did not imply a
prohibition on the states to exercise the same power; that it is
not the mere existence of such a power, but its exercise by
Congress, which may be incompatible with the exercise of the same
power by the states, and that the states may legislate in the
absence of congressional regulations.
Sturges v.
Crowinshield, 4 Wheat.193;
Houston v.
Moore, 5 Wheat. 1;
Willson v. Black
Bird Creek Marsh Co., 2 Pet. 251."
In
Cleveland &c. Ry. Co. v. Illinois, 177 U.
S. 514, is a collection by Mr. Justice Brown, speaking
for this Court, of a number of these cases. We quote from the
opinion (pp.
177 U. S.
516-517):
"Few classes of cases have become more common of recent years
than those wherein the police power of the state over the vehicles
of interstate commerce has been drawn in question. That such power
exists and will be enforced, notwithstanding
Page 211 U. S. 622
the constitutional authority of Congress to regulate such
commerce, is evident from the large number of cases in which we
have sustained the validity of local laws designed to secure the
safety and comfort of passengers, employees, persons crossing
railway way tracks, and adjacent property owners, as well as other
regulations intended for the public good."
"We have recently applied this doctrine to state laws requiring
locomotive engineers to be examined and licensed by the state
authorities (
Smith v. Alabama, 124 U. S.
465); requiring such engineers to be examined from time
to time with respect to their ability to distinguish colors
(
Nashville &c. Railway v. Alabama, 128 U. S.
96); requiring telegraph companies to receive dispatches
and to transmit and deliver them with due diligence, as applied to
messages from outside the state (
Western Union Tel. Co. v.
James, 162 U. S. 650); forbidding the
running of freight trains on Sunday (
Hennington v.
Georgia, 163 U. S. 299); requiring
railway companies to fix their rates annually for the
transportation of passengers and freight, and also requiring them
to post a printed copy of such rates at all their stations
(
Railway
Company v. Fuller, 17 Wall. 560); forbidding the
consolidation of parallel or competing lines of railway
(
Louisville & Nashville R. Co. v. Kentucky,
161 U. S.
677); regulating the heating of passenger cars, and
directing guards and guard posts to be placed on railroad bridges
and trestles and the approaches thereto (
N.Y., N.H. & H. R.
Co. v. New York, 165 U. S. 628); providing that
no contract shall exempt any railroad corporation from the
liability of a common carrier or a carrier of passengers, which
would have existed if no contract had been made (
Chicago,
Milwaukee &c. Ry. v. Solan, 169 U. S.
133), and declaring that, when a common carrier accepts
for transportation anything directed to a point of destination
beyond the terminus of his own line or route, he shall be deemed
thereby to assume an obligation for its safe carriage to such point
of destination, unless at the time of such acceptance, such carrier
be released or exempted from such liability be contract in writing,
signed by the owner or his agent (
Richmond &
Allegheny Railroad
Page 211 U. S. 623
v. Patterson Tobacco Company, 169 U. S.
311). In none of these cases was it thought that the
regulations were unreasonable or operated in any just sense as a
restriction upon interstate commerce."
See also Missouri, Kansas and Texas Railway v. Haber,
169 U. S. 613,
169 U. S. 626;
Wisconsin &c. Railroad v. Jacobson, 179 U.
S. 287;
Reid v. Colorado, 187 U.
S. 137.
On the other hand, it is said that Congress has already acted --
has created the Interstate Commerce Commission, and given to it a
large measure of control over interstate commerce. But the fact
that Congress has entrusted power to that Commission does not, in
the absence of action by it, change the rule which existed prior to
the creation of the Commission. Congress could always regulate
interstate commerce, and could make specific provisions in
reference thereto, and yet this has not been held to interfere with
the power of the state in these incidental matters. A mere
delegation by Congress to the Commission of a like power has no
greater effect, and does not of itself disturb the authority of the
state. It is not contended that the Commission has taken any action
in respect to the particular matters involved. It may never do so,
and no one can, in advance, anticipate what it will do when it
acts. Until then, the authority of the state in merely incidental
matters remains undisturbed. In other words, the mere grant by
Congress to the Commission of certain national powers in respect to
interstate commerce does not, of itself, and in the absence of
action by the Commission, interfere with the authority of the state
to make those regulations conducive to the welfare and convenience
of its citizens. Running through the entire argument of counsel for
the Missouri Pacific is the thought that the control of Congress
over interstate commerce, and a delegation of that control to a
commission, necessarily withdraws from the state all power in
respect to regulations of a local character. This proposition
cannot be sustained. Until specific action by Congress or the
Commission, the control of the state over these incidental matters
remains undisturbed. But it is further contended that this is
Page 211 U. S. 624
not a mere incidental matter, indirectly affecting interstate
commerce, but directly a part of such commerce, and therefore
beyond the power of the state to control, and, in support of that,
McNeill v. Southern Railway Company, 202 U.
S. 543, is referred to. There are many points of
resemblance between that case and this, but there is this
substantial distinction: in that was presented and determined
solely the power of a state commission to make orders respecting
the delivery of cars engaged in interstate commerce beyond the
right of way of the carrier and to a private siding -- an order
which affected the movement of the cars prior to the completion of
the transportation -- while here is presented, as heretofore
indicated, the question of the power of the state to prevent
discrimination between shippers, and the common law duty resting
upon a carrier was enforced. This common law duty the state, in a
case like the present, may -- at least, in the absence of
congressional action -- compel a carrier to discharge.
We see no error in the ruling of the Supreme Court of Kansas,
and its judgment is
Affirmed.
MR. JUSTICE HOLMES:
I concur in the judgment on the ground that the cars had not yet
been appropriated to interstate commerce, and so were subject to
state control. For this reason, I have not found it necessary to
make up my mind on the considerations that will be urged by MR.
JUSTICE MOODY, although I am inclined to agree with his views.
MR. JUSTICE MOODY, dissenting:
I find myself unable to agree in the reasoning by which the
judgment of the state court is affirmed. Upon the peculiar facts of
this case, it is possible to say that the cars whose transfer was
directed did not become the subjects of interstate commerce until
they had been selected as such after their delivery upon the tracks
of the Santa Fe Railroad. If the decision were put upon that
ground, I should be silent.
Page 211 U. S. 625
But it is assumed that three-fifths of them were interstate
shipments, and, with respect to such shipments, I am constrained to
believe that the judgment of the court below exceeded the power of
the state. The division of the governmental power over commerce,
made by the Constitution, by which the control of interstate
commerce is vested in the nation and the control of intrastate
commerce is vested in the states, together with the fact that both
kinds of commerce are often conducted by the same persons and
corporations, through the same agencies, gives rise to highly
perplexing questions in practice. The regulation of carriers and
other instrumentalities of commerce is constantly undertaken, both
by the nation and the states, and the extent and limit of the
respective powers vested in each government, as far as possible,
ought to be accurately ascertained and declared. This is demanded
imperatively for the orderly conduct of the vast transportation
agencies which are engaged in both kinds of commerce. They ought
not to be left uncertain as to the power to which they are
responsible.
I venture to think that the weight of authority establishes the
following principles: the commerce clause of the Constitution vests
the power to regulate interstate commerce exclusively in the
Congress, and leaves the power to regulate intrastate commerce
exclusively in the states. Both powers being exclusive, neither can
be directly exercised except by the government in which it is
vested. Though the state may not directly control interstate
commerce, it may often indirectly affect that commerce by the
exercise of other governmental powers with which it is undoubtedly
clothed. And this indirect effect may be allowed to operate until
the Congress enacts legislation conflicting with it, to which it
must yield as the paramount power.
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 204;
Atlantic Coast Line v. Wharton, 207 U.
S. 328,
207 U. S. 334;
Asbell v. Kansas, 209 U. S. 251.
In the case at bar, upon the facts as they are assumed to exist,
it seems to me that the judgment of the court below
Page 211 U. S. 626
directly regulated interstate commerce. If this is so, it is
unimportant that the Congress has been silent. A power clearly
withdrawn from the state, and vested in the nation, can no longer
be exercised by the states, even though the Congress is silent.
Where the Congress fails to act, the subject enjoys freedom from
direct control.
The principles which I have stated have been recently applied by
this Court in the case of
McNeill v. Southern Railway
Company, 202 U. S. 543. I
cannot escape from the conviction that that case requires a
reversal of the judgment of the court below, so far as it assumes
to direct the conduct of interstate commerce. In that case, the
place of business of a private corporation was reached by a spur
track connecting with the main track of the railroad. It had been
the custom of the railroad to deliver cars consigned to this
corporation from the main track to the spur track. In consequence
of a dispute concerning demurrage, the railroad refused to continue
thus to deliver cars. The state commission made an order requiring
the railroad to deliver certain cars engaged in interstate commerce
upon the spur track on payment of freight charges. The order was
held to be a regulation of such commerce, and repugnant to the
commerce clause of the Constitution. In that case, the regulation
affected the last stages of the interstate journey. In this case,
it affects the first stages of the interstate journey. But in each
case, the commerce which was regulated was interstate. In that
case, the order was issued by a commission, and in this case by a
court. But nothing turns upon that distinction, for, by whatever
state agency the power is exercised, it is void because it exceeds
the authority which may rightfully be conferred by the state upon
any agency.
In am not ready to assent to the proposition that, although the
Congress has vested in the Interstate Commerce Commission the
authority to deal with the exact situation presented to us, that
fact is immaterial, because the Commission has taken no action. If
the Commission has the authority to deal with a question of this
kind, those who have grievances ought to
Page 211 U. S. 627
resort to that body for relief. It is a very great hardship to
subject the carriers to possibly conflicting regulations, and leave
them uncertain which government may rightfully assert its
controlling authority. So it was said in the
McNeill case
that the order there
"asserted a power concerning a subject directly covered by the
act of Congress to regulate commerce, and the amendments to that
act, which forbid, and provide remedies to prevent, unjust
discriminations and the subjecting to undue disadvantages by
carriers engaged in interstate commerce."
This statement was made as an additional reason for holding the
state action invalid, and seems in conflict with the holding in
this case.
I am authorized to state that MR. JUSTICE WHITE joins in this
opinion.