It may be said that the proper governmental authority, whether legislative or administrative, the latter being by statute authorized, may regulate the location and require the construction of depots and the maintenance of necessary depot facilities. Such regulation must in all cases be reasonable and must be made upon proper consideration of the rights of both the carriers and the public. Whether such regulation can be enforced by mandamus or by suits for penalties depends upon the terms of the particular regulating statute. The Interstate Commerce Commission has exercised the right to regulate the use of freight terminals,51 and such regulation is within its statutory power. It would seem that regulations as to the construction, location, operation and maintenance of depots, except new union passenger depots, being regulations which can best be made by a local tribunal, are, at least in the present state of the federal law, and in view of nonaction by the Interstate Commerce Commission, within the cognizance of state laws and state commissions.52 Such regu 604; McCoy v. Cincinnati I. St. L. & C. R. Co., 13 Fed. 3; State v. Republican Val. R. Co. (Neb.), 26 N. W. 205 and 24 N. W. 329. The right of a commission to locate a station does not authorize a requirement that separate freight and passenger depots be maintained, State v. Yazoo Valley R. Co., 87 Miss. 679, 40 So. 263. See Sec. 201, post, relative to the law governing the construction of new union depots. 51 Federal Sugar Refining Co. v. Baltimore & O. R. Co., 17 I. C. C. 40, 47, 20 I. C. C. 200; Cattle Raisers' Asso. v. C. B. & Q. R. R. Co., 11 I. C. C. 277; R. R. Com. of Ky. v. L. & N. R. R. Co., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339. In United States v. B. & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, the order of the Commission was set aside but the right to regulate conceded. 52 Cases illustrating the exercise of the power by state authority are: Atty. Gen. of Mass. v. Eastern R. Co., 137 Mass. 45; Board of R. R. Com'rs of Kansas v. Missouri P. R. Co., 71 Kan. 193, 80 Pac. 53; Corporation Commission of N. C. v. Seaboard A. L. Ry., 161 N. C. 270, 76 S. E. 554; St. Louis I. M. & S. Ry. Co. v. State, 31 Okla. 509, 122 Pac. 217; Horton v. So. Ry. Co., 173 Ala. 231, 55 So. 531; College Arms Hotel Co. v. Atlantic C. L. R. Co., 61 Fla. 553, 54 So. 459; St. Louis S. W. Ry. Co. v. State, 97 Ark. 473, 134 S. W. 970; State v. Ogden Rapid Transit Co., 38 Utah 242, 112 Pac. 120; Pecos & N. T. Ry. Co. v. Railroad Com. of Texas, 56 Tex. C. A. 422, 120 S. W. 1055; R. R. Com. of Tex. v. Chicago, R. I. & G. Ry. Co., 114 S. W. 192, reversed 102 Tex. 393. 117 S. W. 794; Louisiana R. & N. Co. v. R. R. Com. of La., 121 La. 849, 49 So. 884. lation does not burden or impede, but aids and facilitates intercourse and traffic.53 The building of new union passenger stations, requiring large outlays of capital and expensive relocation of railroad tracks may not now be compelled by state authority unless, perhaps, permission is first obtained from the Interstate Commerce Commission. For citation of authorities and further discussion of this subject, see Sec. 201, post. It is not an unconstitutional interference with interstate commerce for a state statute to prohibit any change in location of shops, roundhouses and general offices of a railway company which had located and agreed to maintain them for a valuable consideration.54 Under these principles, a railroad may be compelled to install a telephone in a depot to facilitate its business,55 but not for general commercial purposes.56 The business of a railroad is transportation, and it cannot be compelled to provide scales at local stations for the convenience of stock shippers.57 § 11. Regulation of Facilities-Terminal Roads. Short lines of railroad engaged as common carriers in the business of transporting freight between the termini of other common carriers and industries not directly on the lines of the principal carriers are designated as terminal railroads. Generally, such terminal railroad is located in only one state and is a state corporation. It delivers freight which may be brought 53 Morris Scarboro Moffitt Co. v. Southern Express Co., 146 N. C. 167, 59 S. E. 667; Pittsburg C. C. & St. L. R. Co. v. Hunt, 171 Ind. 189, 86 N. E. 328. 54 International & G. N. R. Co. v. Anderson Co., 246 U. S. 424, 62 L. Ed. 807, 38 Sup. Ct. 370. But "the court will never order a railroad station to be built or maintained contrary to the public interest;"' Northern Pacific R. Co. v. Washington, 142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 293 and see Armour & Co. v. Texas & Pacific Ry. 55 Atchison T. & S. F. Ry. Co. v. State, 23 Okla. 210, 100 Pac. 11. 56 Atchison T. & S. F. Ry. Co. v. State, 23 Okla. 231, 100 Pac. 16. See as to right to require rates to be posted, Johnson v. Seaboard A. L. Ry., 78 S. C. 361, 52 S. E. 644. 57 New Mex. Wool Growers' Asso. v. A. T. & S. F. R. Co., N. M., 145 Pac. 1077; G. N. R. Co. v. Minnesota, 238 U. S. 340, 59 L. Ed. 1337, 35 Sup. Ct. 753. to it by other carriers, or delivers freight from industries to other carriers, such freight being destined from or to points both within and without the state in which the terminal railroad is located. 60 In a federal case decided in 1887 it was held that a "switching" service was local and might be regulated by a state commission;58 but it cannot now be doubted that, where a delivery service by a terminal road relates to freight which moves in interstate commerce, as to such transportation, the carrier is not legally subject to any regulation by state authority. The Interstate Commerce Commission has regulated rates of terminal carriers, holding that, "A state statute fixing terminal charges is not controlling with respect to interstate transportation. ''59 Discrimination by a terminal company was prohibited. Through routes and joint rates with terminal roads have been ordered. That such roads, as to interstate transportation of which the terminal haul is a part, are within the Interstate Commerce Act has been recognized and established by the Supreme Court of the United States.62 In the Southern Pacific Terminal case, Mr. Justice McKenna quotes approvingly language of the Commission aptly expressing the rule. He there quoted: "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 58 Chicago M. & St. P. Ry. Co. v. Becker, 32 Fed. 849; the rate prescribed by the State Commission was enjoined as being too low, same case 35 Fed. 883. 59 Wilson Produce Co. v. Penna. R. Co., 14 I. C. C. 170. 60 Eichenberg v. So. Pac. Co., 14 I. C. C. 250; order approved, So. Pac. Terminal Co. v. Int. Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279. 61 Mfgrs. Ry. Co. v. St. Louis I. M. & S. Ry. Co., 21 I. C. C. 304; and see Peale v. Cent. R. Co. of N. J., 18 I. 62 Int. Com. Com. v. Chicago B. & Q. R. Co., 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824; So. Ry. Co. v. St. L. Hay & G. Co., 214 U. S. 297, 53 L. Ed. 1004, 29 Sup. Ct. 678; Int. Com. Com. v. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 Sup. Ct. 66; United States v. Union Stock Yards & Transit Co., 226 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 83; Railroad Com. of Ga. v. L. & N. R. Co., 148 Ga. 442, 445. 63 Note 60, ante. separate corporations, to exempt all of their terminals from our regulating authority." Terminal roads, therefore, as to all questions of rates and regulations, are subject to the jurisdiction of the state or the federal government in the same way as other common carriers. When the regulation relates to intrastate transportation and does not directly affect interstate commerce, a state commission may act; otherwise, the Interstate Commerce Commission alone has power to prescribe rates, rules and regulations. The United States Supreme Court held in a case coming up from Georgia that a state, through its regulatory commission, may regulate service by a carrier over an industrial sidetrack even though 85 per cent. of the business over such track is interstate, authority over tracks and service of this character having been specifically reserved to the states by Sec. 402 of Transportation Act, 1920 (now incorporated into paragraph (22), Sec. 1, Interstate Commerce Act). § 12. State Laws Forbidding the Consolidation of Competing Carriers. A constitutional provision of the state of Kentucky prohibiting the consolidation of stocks, franchises or property, as well as the purchase and lease, of parallel or competing lines of railroad does not so interfere with interstate commerce as to be invalid. The "instruments of commerce" may be regulated by the states. In sustaining the foregoing law of Kentucky, Mr. Justice Brown, announcing the opinion of the Supreme Court, said:65 "The power to construct them [railroads] involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable. In the division of authority with respect to interstate railways, Congress reserved to itself the 64 Western & Atlantic Railroad v. Georgia Public Service Commission, 267 U. S. 493, 69 L. Ed. 753, 45 Sup. Ct. 409. 65 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 40 L. Ed. 849, 16 Sup. Ct. 714. Explained, Northern Securities Co. v. United States, 193 U. S. 197, 348, 48 L. Ed. 679, 705, 24 Sup. Ct. 436; Pearsall v. Great Northern R. Co., 161 U. S. 646, 40 L. Ed. 838, 16 Sup. Ct. 705; Simpson, et al., R. R. Com. of Minnesota v. Shepard, 230 U. S. 352, 432, 433, 57 L. Ed. 1511, 33 Sup. Ct. 729. superior right to control their commerce and forbid interference therewith; while to the states remains the power to create and to regulate the instruments of such commerce, so far as necessary to the conservation of the public interests. "If it be assumed that the states have no right to forbid the consolidation of competing lines, because the whole subject is within the control of Congress, it would necessarily follow that Congress would have the power to authorize such consolidation in defiance of state legislation—a proposition which needs only to be stated to demonstrate its unsoundness." The concluding language of Mr. Justice Brown has a significant application to the provisions of Section 407 of the Transportation Act, 1920, which section amends Section 5 of the Interstate Commerce Act. The paragraphs added by the Amendment authorize the consolidation of the properties of two or more railroads. Practically all the railroads subject to these enactments were incorporated under state laws; they are creatures of the states; but are instrumentalities of interstate commerce. In the Wisconsin case, the United States Supreme Court stated that railroads are instrumentalities of interstate commerce doing an intrastate business. The constitutionality of this provision of the amendment is discussed Section 68, post. § 13. Regulation of Facilities-Spur Tracks. Where an order of a state tribunal affects only intrastate commerce, the question of whether or not it is arbitrary and unreasonable is for the state courts; and it is proper to require a carrier to furnish facilities for making the necessary connections for passenger travel, even if, in doing so, that service must be furnished at a loss.67 A state statute authorizing a state commission to require a railroad to permit the erection of an elevator upon its roadbed was held by the Supreme Court. of the United States to be in 66 Wisconsin Railroad Commission v. C. B. & Q. R. R. Co., 257 U. S. 563, 66 L. Ed. 371, 42 Sup. Ct. 232. 67 Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1, 51 L. Ed. 933, 27 Sup. Ct. 585, affirming |