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to requirements prescribed by the Commission, and must make reports to the Commission as required.416

The Supreme Court, speaking of the original Act in effect prior to 1920, has said:417

"It cannot be challenged that the great purpose of the Act to Regulate Commerce, whilst seeking to prevent unjust and unreasonable rates, was to secure equality of rates to all, and to destroy favoritism, these last being accomplished by requiring the publications of tariffs, and by prohibiting secret departures from such tariffs, and forbidding rebates, preferences, and all other forms of undue discrimination. To this extent and for these purposes the statute was remedial and is, therefore, entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve."

The Act, while repeating and adopting the common-law rule that rates should be reasonable, had as its principal purpose the prevention of unjust discrimination and undue and unreasonable preference. The shipper could protect himself more easily from unreasonable rates than he could from secret and ruinous discrimination against him and preferences to his competitor. Equality of treatment and the "open-gateway policy' 418 are sought to be obtained by the Act.

All the provisions of the original, amendatory and supplemental Acts regulating interstate transportation have as part of their major purposes the securing of reasonable and nondiscriminatory charges. To effectuate these purposes along with the others, the law prescribes rules and authorizes the Commission to make other rules and regulations by which the purposes may be accomplished.

416 Post, Chapter XI. And see,

Interstate Com. Com. V. Goodrich
Transit Co., 224 U. S. 194, 56 L. Ed.
729, 32 Sup. Ct. 436; United States v.
Adams Exp. Co., 229 U. S. 381, 57 L.
Ed. 1237, 33 Sup. Ct. 878; Kansas
City So. Ry. v. United States, 231 U.
S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125.
417 New York N. H. & H. R. Co.

v. Interstate Com. Com., 200 U. S. 261, 391, 50 L. Ed. 515, 521, 26 Sup. Ct. 272.

418 Rahway V. R. Co. v. Delaware, L. & W. R. Co., 14 I. C. C. 191, 194. And see also Rates for Transportation of Anthracite Coal, 35 I. C. C. 220, 289.

*

§ 73. What Transportation is Included in the Act. The transportation included in the Act is that "from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States, or the District of Columbia, or from one place in a territory to another place in the same territory, or from any place in the United States to an adjacent foreign country and carried from such place to a port of trans-shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country." The above quotation is taken from Section 1 of the original Act, except the phrase applying to transportation between places in the same territory was added by the Amendment of June 29, 1906.41

By the Act of 1910, telegraph, telephone and cable companies and the transportation of oil were included in the Act.420 The Panama Canal Act extended jurisdiction to water carriers.

The proviso of Section 1 of the original Act was retained in its original form421 until the Act of 1910, when it was changed in language, but not in essential substance. Transportation Act, 1920, made another change of form. In the original provision, in the 1910 Amendment and in the 1920 Amendment intrastate commerce was excluded from the provisions of the statute,422 In 1920 Congress gave the Interstate Commerce Commission greater power in regulating intrastate rates that unjustly discriminate against interstate commerce.423

That the provision referred to leaves to the states the regulation of intrastate commerce, subject to the limitations mentioned, has already been shown.424

419 Common control, etc., discussed, Standard Oil Co. v. United States, 179 Fed. 614. For a discussion of the provision relating to transportation of oil, see Prairie Oil & Gas Co. v. United States, 204 Fed. 798, Commerce Court Opinion. Act held valid and Commerce Court reversed;

the Pipe Line Cases, U. S. v. Ohio Oil
Co., 234 U. S. 548, 58 L. Ed. 1394, 34
Sup. Ct. 956.

420 Post, Sec. 401.
421 Post, Sec. 401.
422 Sec. 401, post.
423 Sec. 486, post.
424 Ante, Sec. 43.

The Daniel Ball425 is a case frequently cited and sometimes given a construction that is of doubtful correctness. The libel was brought by the United States for penalties under the Act of July 7, 1838, 5 Stat. 304, requiring a license for vessels "to transport any merchandise or passengers upon the bays, lakes, rivers or other navigable waters of the United States." Two questions were presented, one being that the waters upon which the steamer plied were not "navigable waters of the United States." This question being answered by the court's holding that such waters were navigable waters within the meaning of the Act, it was further contended that the steamer was engaged wholly in internal commerce. It was admitted that she received freight originating beyond the state destined to points in the states, and also received freight in the state destined to points beyond. The language of Mr. Justice Field must be construed in connection with the facts of the case, and it will be noticed that he stresses the fact that the transportation was "on the navigable waters of the United States." In the further course of the opinion, it was said:

"It is said that if the position here asserted be sustained, there is no such thing as the domestic trade of a state; that Congress may take the entire control of the commerce of the country, and extend its regulations to the railroads within a state on which grain or fruit is transported to a distant market.

"We answer that the present case relates to transportation. on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. If the authority does not extend to an agency in such commerce when the agency is confined within the limits of a state, its entire authority over interstate commerce

425 The Daniel Ball v. United States, 10 Wall., 77 U. S. 557, 19 L. Ed. 999.

may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a state, and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would be a dead letter."

In Gulf C. & S. F. Ry. Co. v. Texas,426 there were involved two independent shipments, and the fact that the first was interstate did not make the second, moving between points both of which were in Texas, an interstate shipment.

The Commission held that an indispensable element of a through shipment was a contract therefor;427 but while this statement may be correct generally, it disregards the principle that substance and not mere form controls. In the Social Circle case,* 428 an intrastate movement that was part of an interstate movement under a through bill of lading was held subject to the supervision of the Commission.

§ 74. Transportation Included in Act, Continued. As stated in the preceding section, the general rule is that a contract for through shipment determines whether or not the shipment is interstate or intrastate, and the decision in Gulf, Colorado & Sante Fe Ry. Co. v. Texas must be limited by the principle that the substance and not the mere form controls. In the Galveston Terminal Case,429 it was held that where goods were intended for export, the fact that the first bill of lading was issued to a terminal within the state, the commodity there to be delivered to a carrier for a foreign destination, did not make the movement an intrastate one, and that such transportation was subject to regulation by the Interstate Commerce Commission. In this case, emphasis was

426 Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540, 27 Sup. Ct. 360.

427 Re Alleged Unlawful Rates and Practices 7 I. C. C. 240, 247.

428 Cincinnati, N. O. & T. P. R. Co. v. Interstate Com. Com., 162 U. S. 184, 192, 40 L. Ed. 935, 938, 16 Sup. Ct. 700. See also, United States v.. Wood, 145 Fed. 405, 411; United States v. Colorado & N. W. Ry. Co.,

157 Fed. 321, 85 C. C. A. 48; Chicago, B. & Q. R. Co. v. United States, 157 Fed. 830, 85 C. C. A. 194.

429 Southern Pac. Term. Co. v. Interstate Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279, citing Coe v. Errol, 116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475, sustaining the Commission in Eichenberg v. Southern Pac. Co., 14 I. C. C. 250.

laid upon the fact that the Terminal Company was controlled by the Railroad Company, and, in the course of the opinion, it was said:

"Verbal declarations cannot alter the facts. The control and operation of the Southern Pacific Company of the railroads and the Terminal Company have united them into a system of which all are necessary parts, the Terminal Company as well as the railroad companies.

And the conclusion of the Court is shown by this language: "The Terminal Company is part and parcel of the system engaged in the transportation of commerce, and to the extent that such commerce is interstate the Commission has jurisdiction to supervise and control it within statutory limits. To hold otherwise would in effect permit carriers generally, through the organization of separate corporations, to exempt all of their terminals from our regulating authority."

This case was followed and the Santa Fe case distinguished in a subsequent case,430 where it was held that, although continuity of movement might be conceded as necessary to make the shipment, the court could look behind the mere billing and determine the real character of the transportation. In Railroad Commission of Louisiana v. Texas Pac. R. Co.,431 the principles established by former decisions were stated: "The principle enunciated in the cases were that it is the essential of the character of the commerce, not the accident of local or through bills of lading which determines federal or state control over it. And it takes character as interstate or foreign commerce when it is actually started in the course of transportation to another state or to a foreign country." The delivery of cars for interstate shipment is within the Act.432

430 Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111, 57 L. Ed. 442, 33 Sup. Ct. 229, citing The Galveston Terminal Case and R. R. Com. of Ohio v. Worthington, 225 U. S. 101, 56 L. Ed. 1004, 32 Sup. Ct. 653. And see Texas & P. R. Co. v. R. R. Com. of Louisiana, 183 Fed. 1005; Re Discrimination in Wharfage at Pensacola, 27 I. C. C. 252. For cases like the Santa Fe Case, see United States

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