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thing from the archaic institution which did duty therefore have to contend that they are not res for positive law at the epochs portrayed by Sir adjudicatæ. Henry Maine. Why not concede that the analyses of It is the paper on the Panama canal, and these different writers are not of universal applica- the Clayton-Bulwer treaty which has the most tion, but relate to different spheres ? Tbis done, direct interest for us on this side of the water. the differentia of the definitions are sufficiently The history of the treaty is first given from the noted without convicting any body of error. We British point of view. Then the several contenobserve that nearly all the late international law- tions of the signatory powers, and in the course of yers and text-writers seem to think it incumbent this discussion considerable insight into recent on them to attribute the force of law to custom, British criticisms of Mr. Blaine's supposed policy and to exaggerate the importance of Sir Henry is afforded. The means which the author suggests Maine's critique that Austin's definition of law for the neutralization of the canal are set out at fails to take into consideration very archaic socie- length. Much stress is laid upon what was unties where custom had certain concomitants of law. questionably Mr. Evarts' unfortunate mistake in But this was no discovery of the greater compara- assenting to the Egyp law of liqui
tion, with tive jurist. Cicero in his too little read Treatise on the effect of permitting us to conclude that considthe Law noted the same phenomenon,
erable, or busy lawyers, are not always the best tamen erunt fere in more maiorum qui tum ut lex prime ministers of a great continental power. All valebat. (Lib, II, cap. 10, f. 20.)
the author's ingenuity is brought to bear on his arWhere is the necessity then of postulating that gument, and while it contains plenty of food for custom is law in order to build up a true interna- discussion we prefer not to review at the present tional law ? Custom may not be lex, and yet the time the various positions urged.
Before long law of nations may have a veritable existence. much more will be written on this subject, and We think that it has, and that Mr. Justice Stephen then the mere spectator will be better able to draw and other English lawyers fail to treat it with for himself correct conclusions. One thing we do enough deference in the positions cited by Profes-however desire to notice, and that emphatically; sor Lawrence. But until the late Oxford revival | it is that our distinguished friend, Commander English lawyers have not been strong on interna- Goodrich, U. S. N., overstepped the bounds of militional law. There is a large hiatus between Sel- tary criticism when he touched in his late book on den's Mare Clausum and such writers as Westlake, the propriety of the British occupation of the Suez Hall and Twiss, not forgetting Lord Stowell. canal. Soldiers and sailors of all nations think
Positive external law of nations, as we prefer to much alike, and are hardly authority on internadesignate that part of the code which is of univer- tional law, which is founded on that rock — peace sal operation, is positive law enforced by the great to all men. modern amphictyonic council. There the resem- Of all the essays in this volume we prefer that on blance of the law of nations to internal positive the Work of Grotius. The setting is a good piclaw of a particular State stops. The shadowy ture of Grotius' historical environment, and the border land between ethics and law is only law in reasons why his utterances were immediately poposse, whether it lies in the domain of the interna- tent among nations. This essay also indicates tional lawyers or in that of the municipal lawyers. briefly, but sufficiently, the influence of the Stoic It is no more law in the one case than in the other. philosophy on the Roman ius gentium, and the natThe difficulty with Professor Lawrence
ural confusion of ius naturale with ius gentium, an mon to most of the late writers on international
error which greatly influenced the founders of the law -- is that he overstates his case; he claims modern law of nations. It may be thought that too much for the institutes of his science, and this paper will have only a special interest to the is unwilling to recognize that the law of na- international lawyers, but this is erroneous. The tions is yet in embryo. In two more centuries, law
of nations possesses
a singular interest such as the nineteenth, the international lawyers to our own jurisprudence in New York,
The will no doubt fill a proud place in the administra- struggle of feudality with the ius naturale tinges tion of law, for the importance of their vocations our entire colonial epoch, during which the foundawill increase with the never-ending advance of tions of our jurisprudence and government were science, which goes hand in hand with commerce. laid. When a complete history of American law But Professor Lawrence fails less in this respect comes to be written the influence of the so-called than do others of his school.
“ law of nature” will have to be profoundly considThe essay on the Suez canal becomes of interest ered, for it plays a great role in the destruction of here as the Isthmus canals approach completion, the feudal system which our English princes at one for it may be assumed that a canon of international time struggled to perpetuate among us. jurisprudence relating to the former will some day the thinking municipal lawyer who glances observbe affirmed by the European powers, to be of uni- edly through this volume will find much suggested, versal operation. Our National embarrassment is much to ponder over in the enlarged horizon it prethat we have been excluded by our continental pol- sents to him. icy from aiding to formulate these canons, and will The little volume is well done, well printed, and
FROM the Fountain Circuit Court
an agreeable variation from the ponderous tomes have the given quantity; but it articles of different which formerly were thought appropriate to
value are mixed, producing a third value, the aggreweighty subjects. It is in such little volumes gate of both, and through the fault of the person mixlibelli they may be called -- that the best moderning them the other party cannot tell what was the
original value of his property, he must have the thought finds its fittest medium of expression, and
whole." Chancellor Kent takes a like view of the they foreshadow the day when law shall be no lon- question, and his last editor, Judge Holmes, cites a ger a law of technicalities, but as it was in the great many cases upon the subject. 2 Kent Com. (124h best days of Rome, a science and a part of the com
ed.) 365, 590. This is the view taken by the text
writers and courts generally in cases where the deplement of every gentleman's and every scholar's education. We may close our little notice of this Bis.& Sim. Law of Prod. Ex.,152;2 Schouler Pers. Prop.
posit is made with a warehouseman. Story Bail., $40; book with the hope of its author repeated, thai 46; 6 Am. Law Rev.457; 2 Black.Com. (Cooley's ed.) 404, some day the evolution of juristic science will lead note. There is however, as shown by the cases cited, to perpetual peace.
some conflict of opinion, but as said in a late work, the great weight of authority is that the coutract is
one of bailment, and not of sale, the warehouseman BAILMENT-WAREHOUSEMAN-COMMINGLING and the depositor becoming owners as tenants in comGRAIN-NEGLIGENCE
mon. Bis. & Sim. Law of Prod. Ex., $ 154, auth. note 9.
To the authorities cited by the authors referred to SUPREME COURT OF INDIANA, MAY TERM, 1884.
may be added Ledyard v. Hibbard, 48 Mich. 421; S.C., 42 Am. Rep. 474; Nelson v. Brown, 44 Iowa, 455; Sex
ton v. Graham, 53 id. 181; Nelson v. Brown, id. 555; RICE V. Nixon.*
Irons v. Kentner, 51 id. 88; S. C., 33 Am. Rep. 119, Where a warehouseman receives grain to be stored for the where the rule is carried much farther than is neces
owner, and places it in a common bin with his own or that sary in the present instance. The rule which we acreceived from other depositors, and sells from this recep- cept as the true one is required by the commercial iu. tacle, retaining always sufficient to supply each owner, the terests of the country, and is in harmony with the carcontract continues one of bailment, and the warehouse- dinal principle that the intention of contracting parman is not liable for a loss resulting from an accidental
ties is always to be given effect. It is vot uukuown to fire not attributable to his wrong or negligence.
us, nor can it be unknown to any court, for it is a matter of great public notoriety and concern, that a vast
part of the grain business of the country is conducted J. S. Nave, B. F. Hegler, W. S. Potter and A. A.
through the medium of elevators and warehouses, and
it cannot be presumed that warehousemen in receiv. Rice, for appellants.
ing grain for storage, or depositors in intrusting it to T. F. Davidson, for appellee.
them for that purpose, intended or expected that each ELLIOTT, C. J. The appellee was a warehouseman lot, whether of many thousand bushels or of a few and it was his custom to receive wheat on deposit, and
hundred, should be placed ju separate receptacles; ou to place it in a common bin with wheat bought by the contrary, the course of business in this great him, and it was also his custom to sell wheat from
branch of commerce, made known to us as a matter of this bin, but of this custom the appellants bad no
public knowledge and by the decisions of the courts of knowledge. In August, 1882, the appellant, Victoria
the land, leads to the presumption that both the ware. Rice, deposited with the appellee 210 bushels of wheat;
houseman and the depositor intended that the grain this was thrown into the common bin in accordance
should be placed in a common receptacle and treated with the custom of the appellee, and with it was min- as common property. This rule secures to the deposigled wheat bought by him and wheat stored by other
tor all that in justice he can ask, namely, that his depositors, and from this bin wheat was sold from grain shall be ready for him in kind and quantity time to time, but there was always in the bin wheat whenever he demands it. Any other rule would imenough to supply all depositors, and at any time be- pede the free course of commerce, and render it pracfore the destruction of the warehouse by an accident
tically impossible to handle our immense crops. It is al fire the appellant could have received from the bin reasonable to presume that the warebouseman and his all the wheat she had deposited. Some time after the depositor did not intend that the course of business storage of the wheat the warehouse and all its contents should be interrupted, and that they did not intend were destroyed by fire, but the fire was not attributa- that the almost impossible thing of keeping each lot, ble to the wrong or negligence of the appellee. No de- small or great, apart from the common mass should be mand was made for the wheat until after its destruc-done by the warehouseman. If the warehouseman is tion. The wheat was stored with the appellee, and
not bound to place grain in a separate place for each there was no agreement that the bailor should have an depositor, then the fact that he puts it in a common option to demand the grain or its value in money. receptacle with grain of his own and that of other de
There are cases in which the bailee is responsible for positors, does not make him a purchaser, and it he is the loss of goods where he commingles them with his not a purchaser then he is a bailee. In all matters of own, but this principle does not apply where a ware
contract the intention of the parties gives character houseman receives grain to be stored for the owner.
and effect to the transaction, and in such a caso as this Articles of such a character can be separated by meas.
the circumstances declare that the intention was to urement, and no injury results to the owner from the make a contract of bailment and not a contract of act of the warehouseman in mingling them with like sale. The duties, rights and abilities of warehousemen articles of his own.
are prescribed by the law as declared by the courts and This doctrine is older at least than Lupton v. White, the Legislature, and as matter of law it is known to 15 Ves. Jr. 432, for there Lord Eldon said: “What are us that a warehouseman, by placing grain received the cases in the old law of a mixture of corn or flour? from a depositor in a common receptacle, and treating If one mau mixes his corn or flour with that of an. it as the usages of trade warrant, does not become the other, and they were of equal value, the latter must
buyer of the grain, unless indeed there is some stipu
lation in the contract imposing that character upon *To appear in 97 Indiana Reports.
The cases in our own reports, cited by counsel for Query: Has nnt Congress legislated upon inter-State comthe appellants, do not oppose the conclusion here merce by the act of June 15, 1866, authorizing all railroad reached. In Pribble v. Kent, 10 Ind. 325, the defend- companies to transport passengers and freight from ants received of the plaintiff 132 bushels of wheat, and State to State and empowering them to receive and acon demand failed to deliver the grain, and it was held cept compensation therefor? Rev. Stat. of United States that an action would lie, but the contract was held
(1879), 85258. be one of bailment and not of sale. It is plain there- Section 57, chapter 23, Comp. Laws of 1878, known as the fore that in the case cited there was no such ruling as “Maximum Freight Rate Law" of 1868, had no applicathat asked by the appellants in the present case; on
tion to fx or limit the charges for transportation of the contrary, the ruling overturns their theory.
freight from another State into this State, because if it In Ewing v. French, 1 Blackf. 353, aud Carlisle v.
was intended to apply to such inter-State commerce, it Wallace, 12 Ind. 252, the wheat was delivered to a mil
was in violation of article 1, section 8 of the Constitution ler to be ground into flour, and this was held to be a
of the United States, and therefore void. sale, on the ground that the character of the article 'RROR from Reno county District Court. The was to be entirely changed, and a new and different opinion of the court sufficiently states the case. article was to be given by the miller to his customer in return for the wheat. In the last of the cases cited
James McKinstry, for plaintiff in error. the option of demanding wheat, flour or money was A. A. IIurd, Robert Dunlap and John Reid, for devested in the depositor, so that he had the option of fendant in error. making the contract one of bailment or one of sale,
HORTON, C. J. It appears from the agreed stateand he exercised that option by treating the transac
ment of facts that while the Maximum Freight Rate tion as a sale. In the case under examination there
Law of 1868 was in force in this State, the goods and was no option, for it is expressly found that the wheat
merchandise mentioned in plaintiff's bill of particuwas received by the warehouseman for storage. The lars were shipped from St. Louis, Mo., under a concase of Ashby v. West, 3 Ind. 170, holds that one who
tract made there for transporting the same from St. delivers wheat to be manufactured into flour is the
Louis, Mo., to Hutchinson, Kans., upon the usual owner of the flour, and may maintain replevin, the
through rates cbarged upon such class of goods; that court saying: “We are clearly of the opinion that that
on the shipments of the goods only one receipt or contract is one of bailment, and not of sale," and this
bill of lading was issued to the plaintiff; that the is against the contention of the appellants.
through rate for the freight charged and collected was In deciding that the contract was one of bailment, in every instance the same as charged by mutual arand not of sale, we determine the only debatable ques- rangements of all the railroads connecting with the tion in the case, for it has been long settled that where
defendant's railroad for similar shipments from St. property in the custody of a bailee is destroyed by an Louis to Hutchinson; that in the division of the freight accidental fire, and there has been no fault or negli- among the railroad companies transporting the goods, gence on his part, he is not liable.
the Atchison, Topeka & Santa Fe Railroad Company We have examined the rulings on the demurrers to received an amount thereof in excess of its ordinary the answers and think they were correct, but if we local freight rates, and an amount in excess of that were wrong in this there could be no reversal, because authorized by the Maximum Freight Rate Law of the special finding clearly shows the ground on which Kansas at that time in force. $57, ch. 23, Comp. Laws the judgment rests, and from this it appears that if the of 1879. rulings were erroneous the errors were harmless.
Plaintiff claims to recover the alleged overcharges
Judgment affirmed. paid by him for the transportation of his goods. It is (NOTE.-See 10 Am. Rep. 581; 74 Ill. 213; 42 lowa,
admitted, if he is entitled to recover any thing, he 38. A warehouseman is liable for the negligent injury
shall recover an amount equal to that received by the of goods stored with him for hire, though it appear
defendant or its proportion of the through rate on the that after the happening of the injury the goods were
shipments, less the amount of its local rates from the destroyed without his fault, and that they must have
point wbere the goods and merchandise were delivbeen so destroyed, even if no damage had previously
ered to it by the connecting line to Hutchinson. occurred. Powers v. Mitchell, 3 Hill, 545.—ED.]
On the part of the railroad company it is contended that 857, ch. 23, Comp. Laws of 1879, had no application to the transportation of freight from another
State into this State. CONSTITUTIONAL LAW INTER-STATE COM- Section 57 is as follows: “Every such railway shall MERCE-POWERS OF CONGRESS.
arrange and classify all property usually carried by
them over their roads, and shall affix thereto the KANSAS SUPREME COURT, NOVEMBER 28, 1884. rates respectively at which the same shall be trans
ported between the several stations, or points of conHARDY V. ATCHISON, TOPEKA & SANTA FE R. Co.*
nection or intersection of other roads, which rate
shall be per one hundred pounds, and shall not exUnder article 1, section 8 of the Constitution of the United
ceed, for distance less than fifty miles, twenty cents States, the power of Congress to regulate commerce
per tou per mile, fifteen cents per ton for second class, among the States-inter-State commerce-which consists,
and ten cents per mile per ton for third class articles; among other things, in the transportation of goods from
for distances of fifty miles and over, but less than one one State to another, is exclusive.
huudred miles, fifteen cents per ton per mile for secThe fact that Congress has not seen ft to prescribe any speci
ond class, and seven cents per mile for third class arti. fic rules to control or regulate the transportation of goods cles; for distances of oue hundred miles or more, ten from a place in one State to a place in another-inter
cents per mile per ton for first class, eight cents per State commerce-does not empower the States of the
ton per mile for second class, and five cents per ton Union to regulate such commerce. Its inaction on the
per mile for third or other classes." subject, when considered with reference to its other leg
The contention is that any statute fixing or limitislation, is equivalent to a declaration that inter-State
ing the charges for transportation of goods from a commerce shall be free and untrammeled.
place in one State to a place in another is an attempt *To appear in 32 Kansas Reports.
to regulate commerce between the States, and that
such a statute is invalid as a regulation of inter-State
a State and in taking them out.
* * If then this commerce. In support of this it is asserted that the is the tax upon freight carried between States and a exclusive right to regulate iuter-State commerce is ex
tax, because of its transportation, and if such tax is in pressly confided by the Constitution of the United effect a regulation of inter-State commerce, the conStates to Congress by article 1, section 8, which de- clusion seems to be inevitable that it is in conflict with clares, that “the Congress shall have power
* * the Constitution of the United State. It is not neces. to regulate commerce with foreign nations, and among sary to the present case to go at large into the much the several States, and with the Indian tribes."
debated question, whether the power given to ConThe Federal courts have establisbed that the trans- gress by the Constitution to regulate commerce among portation of merchandise from place to place by rail- the States is exclusive. In the earlier decisions of road is commerce; that the transportation of mer- this court, it was stated to have been so entirely chandise from a place in one State to a place in another vested in Congress that no part of it can be exercised is commerce among the States, or inter-State com- by a State. It has no doubt often been argued and merce; that to fix or limit the charges for such trans- sometimes intimated by the court that so far as Conportation is to regulate commerce; that a statute fix- gress had not legislated on the subject, the States may ing or limiting such charges for transportation from legislate respecting inter-State commerce; yet if they places in one State to places in another is a regulation can, why may they not add regulations to commerce of commerce among the States; that the power to with foreign nations beyond those made by Congress, it regulate such commerce is vested by the Constitution not inconsistent with them? For the power over both of the United States in Congress. Keiser v. Ill. Cent. foreign and inter-State commerce is conferred upon R. Co., 16 Am. & Eng. R. Cas. 40; Louisville & N. R. the Federal Legislature by the same words, and cerCo. v. Railroad Com. of Tenn., id. 1; Carton v. Ill. tainly it has never yet been decided by this court that Cent.R. Co., 59 Iowa, 148; 6 Am.& Eng.Cas.317, and the the power to regulate iuter-State, as well as foreign authorities there cited.
commerce, is not exclusively in Congress. * The debatable question is, how far this power is con- Inter-State transportation of passengers is beyond the current. May a State act until its legislation is super- reach of a State Legislature. * * Merchandise is Beded or interfered with by Congress? In other a subject of commerce; transportation is essential to words, may Kansas control or regulate, within its commerce; and every burden laid upon it is, pro tanto, limits, the charges for transportation of goods shipped a restriction. Whatever therefore may be the true from another State, under a contract made in that doctrine respecting the exclusiveness of the power State, to a place in this State? We suppose it will be vested in Congress to regulate commerce among the conceded that Kansas can pass no law which seeks to States, we regard it as established that no State can fix or limit the charges for the carriage of goods over impose a tax upou freight transported from State to the lines of its railroads which pass over its territory, State, or upon the transporter because of such trans. but neither originate por terminate within it, as for portation.” instance, goods passing from Missouri to Colorado, In Welton v. State of Missouri, 91 U. S. 275, Mr. JusTexas or New Mexico. We suppose it will be con- tice Field said: “It will not be denied that that porceded also that it is beyond the power of Kansas to tion of commerce with foreign countries and between fix the whole charge for the carriage of goods from a the States which consists in the transportation and point in the State to a point in another. This would exchange of commodities is of national importance be an attempt to give our laws an extra-territorial and admits and requires uniformity of regulation. force. If however the power of Congress to regulate The very object of investing this power in the general
erce among the States-inter-State commerce- government was to insure this uniformity against diswhich consists, among other things, iu the carriage of criminating State legislation. * * * The fact that persons and the transportation of goods from oue Congress has not seen fit to prescribe any specific State to another, is exclusive, then section 57 could rules to goveru inter-State commerce does not affect not fix or limit the charges in controversy. This the question. Its inaction on this subject, when conquestion is one upon which the decisions of the Su- sidered with reference to its legislation with respect preme Court of the Uuited States are final. We shall
to foreign commerce, is equivalent to a declaration therefore refer to the more important of those adjudi- that inter-State commerce shall be free aud untramcations.
meled." In Crandall v. State of Nevada,6 Wall. 35, a statute of In Railroad Co. v. Husen, 95 U. S. 465, Mr. Justice Nerada, which in effect laid a tax upon every travel- Strong said: “Whatever may be the power of a State ler passing through or beyond its territorial limits, over commerce that is completely internal, it can no was adjudged to be invalid, but not on the ground more prohibit or regulate that which is inter-State that it was a regulation of inter-State commerce. than that which is with foreign nations. Power orer Chief Justice Chase and Mr. Justice Clifford dissented
one is given by the Coustitution of the United States from this conclusion, and pronounced the act to be a to Congress in the same words in which it is given regulation of inter-State commerce exclusively within over the other, and in both cases it is necessarily ex. the jurisdiction of Congress.
clusive. That the transportation of property from In the case of the State Freight Tax, 15 Wall. 232, a
one State to another is a branch of inter-State comstatute of Pennsylvania, which in effect, laid a tax
merce is undeniable, and no attempt has been made upon all freight taken up within the State and car
in this case to deny it. * * * This court bas bereried out of it, or taken up without and brought within tofore stated that inter-State transportation of pas» it by any railway, was adjudged to be void. The de
sengers is beyond the reach of a State Legislature, and cision was placed solely upon the ground that the law
if as we have held State taxation of persons passing was a regulation of commerce among the States and
from one State to another, or a State tax upon inter was invalid, although Cougress bad never legislated in
State transportation of passengers is prohibited by the reference to the same subject-matter. Mr. Justice
Constitution because a burden upon it, a fortiori
, if Strong, in delivering the opinion, said: “The tax
possible is a State tax upon the carriage of merchauupon freight transported from State to State is a regu- dise from State to State. Transportation is essential lation of inter-State transportation, and therefore a
to commerce, or rather it is commerce itself, and every regulation of commerce among the States. It is a rule
obstacle to it, or burden laid upon it by legislative auprescribed for the transporter by which he is to be
thority, is regulation." controlled in bringing the subjects of commerce into
In Hall v. DeCuir, 95 U, S. 485, Chief Justice Waite
said: “We think it may safely be said that State legislation which seeks to impose a direct burden upon juter-State commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress, * * * Il each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary bardship. Each State could provide for its own passengers and regulato the transportation of its own freight, regardless of the interest of others. Nay mure, it could prescribe rules by which a carrier must be governed within the State in respect to passengers and property brought froin without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrass. ments."
In Telegraph Co. v. Texas, 105 U. S. 460, Chief Justice Waite said: “A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce and their business is commerce itsell. * * * A specific tax on each piessage, so far as it operates on private messages sent out of the State, is a regulation of foreign and inter-Stato commerce avd beyond the power of the State."
In Steamship Co. v. Board of Railroad Commissioners, 18 Fed. Rep. 10, Mr. Justice Field said: “It was al one time a subject of much discussion and some disagreement among judges whether the power conferred upon Congress to regulate commerce is exclusive in its character, or concurrent with that of the States. By recent decisions, this question has been put at rest. . When the subject upon which Congress can act under this power is national in its character and admits and requires uniformity of regulation affecting alike all the States, then the power is in its nature exclusive; but when the subject upon which the power is to act is local in its operation, then the power of the State is so far concurrent that its action is permissible until Congress interferes and takes control of the subject. Of the former class is all that portiou of commerce with foreign countries and among the States, which consists in the carriage of persons and the transportation, purchase, sale and exchange of commodities. From necessity there can be but one rule in such cases for all the States, and the only power competent to prescribe a uniform rule is one which can act for the whole country. Its inaction in such cases is therefore an equivalent to a declaration that such commerce shall be free from State interference." See also Pullman Southern Car Co. v. Nolan, C. L. J., Vol. 19, 369; Gibbons v. Ogden, 9 Wheat. 1; The Daniel Ball, 10 Wall. 565; City of Council Bluffs v. Railroad Co., 45 lowa, 338; Passenger cases, 7 How. 283; State of Penn. v. Wheeling Bridge Co., 18 id. 481; Cooley v. Board of Wardens, 12 id. 299; Gilman v. Philadelphia, 3 Wall. 713.
From these authorities and the cases therein cited we think it is conclusively settled that the portion of either inter-State or foreign commerce which consists in transit or traffic, including transportation in all forms, by land or by water, and the purchase, sale, or exchange of goods is national and susceptible of a uniform plan of regulation, and is therefore under the exclusive control of Congress. Even if Congress has not seen fit to prescribe any specifio rules to govern inter-State commerce, tbat does not affect the question. “Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-State commerce shall be free aud untram
meled." Stute v. Saunders, 19 Kaus. 127 ; Weiton v. Stute of Missouri, supra.
Our opinion is therefore that section 57, which was repealed by the Legislature in 1883, if intended to apply to inter-State commerce, was in violation of the Constitution of the United States and therefore void.
The conclusion we have reached could not be disputed were it not for the case of Peik v. Chicago & N. W. R. Co., 94 U. S. 164, and the language of the court in State v. Munn, id. 133; and Railroad Co. v. Iowa, i id. 155. We confess it is difficult to reconcile these three cases with the principles which have been settled by the prior and subsequent course of decision of the United States Supreme Court, if they decide that until Congress acts in reference to inter-State commerce, the Legislature of a State may regulate the ! transportation of freight and passengers among the States. These cases were decided in 1876, and the opinion in the Peik case was delivered by Chief Justice Waite; yet in the case of Hall v. DeCuir, supra, decided the next year, 1877, the chief justice quotes ap- ! provingly what was said by Mr. Justice Field, speaking for the court in Welton v. State of Missouri, 91 U. 8. 282, tbat "inaction (by Congress) *
is equivalent to a declaration that inter-State coinmerce shall remain free and untrammeled.” Referring to those decisions, the Supreme Court of Iowa in Carton v. Rallroud Co., supra, uses the following language: “The cases of State v. Munn, 94 U. S. 113; Railroad Co. v. Iowa, id. 155; and Peik v. C. & N. W. R. Co., id. 164, do not appear to us to sanctiou the validity of acts of the State Legislature regulating the transportation of freight and passengers between the States. They merely determine the power of the statutes to fix reasonable warehouse charges and reasonable charges for transportation of freight within the boundaries of the States respectively, and that when such power is exercised, although it may incidentally affect commerce between the States, yet the laws of the States are not regulations of inter-State oommerce because of such incidental results. That it was not intended in those cases to approve legislation like that under consideration in this case it appears to us is conclusively shown by the reasoning in the latter cases of Hall v. DeCuir, 95 U. S. 485; and Railroad Co. v. Husen, id. 465.''
In the case of L. & N. R. Co. v. R. Com. of Tenn., supra, Hammond, J., in commenting upon the Peik case, says: “In the Wisconsin case, the next in the series of the Granger cases, the court mainly deals again with what were evidently cousidered by all more important questions. Circuit Judge Drummond tells us that question was scarcely argued at all in the court below, and evidently it was only incidentally considered in the Supreme Court. 6 Biss. 177. The Wisconsin act, unlike ours, contained an exception which excluded from its operation all rates of charges for "carrying freight which comes from beyoud the boundaries of the State and to be carried
or through the State." Possibly, notwithstanding its terms, the act may have been construed within the purview of this exception, not to apply to persons and property coming from other States into Wisconsin or going from that into other States, which was not thought bowever to be its construction in the court below, though the question whether it could so apply under the State Freight Tax cases, 15 Wall. 232, was reserved and not decided in that court."
In the Peik case, the chief justice speaks of the power of Wisconsin to regulate its fares, etc., so far as they are a domestio concern, even though incidentally they may reach beyond the State. Clearly a statute of the State prescribing rates of freight for goods,