however, it will be found that the carrier is engaged in transporting interstate commerce. The Act of Congress applies only to common carriers while engaged in interstate commerce and to employees while employed by such carriers in such commerce.199 § 35. Congressional Regulation of Loss and Damage Claims. In Chapter VI, following, this subject is discussed with some particularity. It is sufficient here to say that, as to interstate shipments, Congress having legislated, the states cannot enforce other and different rules relating to the liability of common carriers than are prescribed by acts of Congress.200 By Section 20, paragraph (11), of the Interstate Commerce Act, 201 201 statutory provisions are made binding upon state as well as federal courts, and any state legislation in conflict with such provisions would be void. § 36. Requiring Railroads to Perform Transportation Service. It is axiomatic that a common carrier is not at liberty to accept or decline shipments or to accept or decline the duty of transporting passengers. Reasonable rules as to the time, place and manner of receiving freight and passengers may be made by the carrier, but these are subject to the governmental power of regulation. The regulation of interstate transportation in this respect is for Congress, but the states have jurisdiction over intrastate transportation of persons and property. These principles were stated by Mr. Justice Brewer, as follows:202 "The question we have to consider is the power of the state to enforce an equality of local rates as between all parties shipping for the same distance over the same road. That a state has such power cannot be doubted, and it cannot be thwarted by any action of a railroad company which does not involve an actual interstate shipment, although done with a 199 Missouri K. & T. R. Co. v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 790, and see cases cited affecting the question arising on state legislation and question arising under the Carmack Amendment. 200 See Sec. 3, ante. 201 49 U. S. C. A., Sec. 20. 202 Ala. & V. R. Co. v. Mississippi R. R. Com., 203 U. S. 406, 501, 51 L. Ed. 289, 27 Sup. Ct. 163, affirming same styled case, 86 Miss. 667, 38 So. 356. view of promoting the business interests of the company. Even if a state may not compel a railroad company to do business at a loss and conceding that a railroad company may insist, as against the power of the state, upon the right to establish such rates as will afford reasonable compensation for the services rendered, yet when it voluntarily establishes local rates for some shippers it cannot resist the power of the state to enforce the same rates for all." Mr. Justice Hill, of the Supreme Court of Georgia, in holding valid a statute of that state preventing discrimination in the sale of passenger tickets by connecting carriers, showed how ancient is this right to regulate. He said:203 "The principle of the right of a state or government to regulate carriers and rates for public services performed is not new, but seems to date back to a very ancient period. So far as the writer's research extends, it goes at least as far back as 2250 years before the birth of Christ, to the reign of Hammurabi, the King of ancient Babylon, who had a complete code of laws for that time. Indeed, our laws of the present day have few underlying principles that do not seem to be contained in this primitive code." § 37. Sale and Regulation of Passenger Tickets. The contract or ticket for transportation of a person over a railroad is subject, like the rate, to reasonable regulation. The power to regulate rests, as to travel among the states and with foreign countries, with the federal government; and as to travel in one state, with the state government. As to those contracts within their regulating power, the states may make all reasonable rules. What is a reasonable rule must depend upon the facts of each case. It is not unreasonable to require the carrier to redeem tickets or unused portions thereof.204 Nor is a law which requires that tickets may not be sold except by authorized agents of the carrier unreasonable, and such a law applying to the acts of agents within a state has no direct 203 Stephens v. Cent. of Ga. Ry. Co., 138 Ga. 625, 628, 629, 75 S. E. 1041, 42 L. R. A. (N. S.) 541, 1913E, Ann. Cas. 609. 204 Missouri, K. & T. Ry. Co. v. Fookes (Tex. Civ. App.), 40 S. W. 858. And carriers may legally require the purchase of a ticket and in default charge a higher rate, Coyle v. So. Ry. Co., 112 Ga. 121, 37 S. E. 163. effect on interstate commerce, although the ticket sold may be a contract authorizing the purchaser to travel from one state to another. Congress has not, as yet, attempted to regulate in regard to this subject. Referring to a statute limiting the right to sell tickets to agents of the carrier, the Supreme Court of Illinois, in deciding that the statute referred to all tickets, accurately stated the reasons why interstate commerce was not interfered with as follows:205 "State legislation, which is not an obstacle to interstate commerce, and imposes no burden upon it, and which comes within a proper exercise of the police power, is not unconstitutional, as infringing upon the powers of Congress. The Act 205 Burdick v. People, 149 Ill. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329. To same effect, State v. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498; State v. Thompson, 47 Oreg. 639, 84 Pac. 476, 4 L. R. A. (N. S.) 480; Commonwealth v. Keary, 198 Pa. St. 500, 48 Atl. 472. As to the validity of such legislation as to state transportation, see Samuelson v. State, 116 Tenn. 470, 95 S. W. 1012, 115 Am. St. Rep. 805; Fry v. State, 63 Ind. 552; Jannen v. State, 42 Tex. Civ. App. 631, 51 S. W. 1126, 62 S. W. 419 (right to regulate sustained); State v. Bernheim, 19 Mont. 512, 49 Pac. 441; Ex Parte O'Neil, 83 Pac. 104. The legislatures of many states have appreciated the unlawful and fraudulent character of the ticket scalpers' business, and statutes have been enacted making dealing in these tickets by others than an authorized agent of the carrier a violation of the criminal law, viz: Pennsylvania, New Jersey, Illinois, Indiana, Minnesota, Georgia, Maine, Texas, North Carolina, Tennessee, North Dakota, Oregon, Montana, Florida and New York. "Laws of New York, 1901, c. 639, prohibiting private individuals from selling railroad tickets, and forbidding the officers of a common carrier from supplying tickets for sale to any other than an authorized agent, has been declared by the New York Court of Appeals not a valid exercise of the power of the legislature to regulate the conduct of a railroad company's business because it is a creation of the legislature and a common carrier." People v. Caldwell, 71 N. Y. Supp. 654, 64 App. Div. 46, Musco v. United Surety Co., 132 App. Div. 300, 117 N. Y. Supp. 21, affirmed 196 N. Y. 459, 90 N. E. 171. Such a regulation was held invalid by the Court of Appeals of New York in People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116, 54 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763, reversing the same case in 26 App. Div. 226, 50 N. Y. Supp. 56. The reversal was placed upon the contention that the statute violated the citizens' liberty to contract, and not upon the commerce clause of the federal constitution. The New York court is not in accord with the general and better rule announced in the cases, supra. of 1875 is, we think, such a species of state legislation. The duties which it imposes upon the carriers therein named, and their agents cannot interfere with the freedom of interstate travel. Such travel is not impeded because tickets are required to be purchased from agents of the carrier who are provided with certificates of their authority. The limitation of the sale of tickets to such agents may be a restraint upon the business of scalpers and ticket brokers, but cannot be regarded as a burden upon interstate commerce." The contract of interstate transportation cannot be controlled by a state and a state law making an interstate ticket binding for six years and giving stop-over privileges, no such provision being in the contract, is void,200 and so is a law requiring carriers to give shippers of live-stock free transportation in interstate commerce.207 A state, as to intrastate travel, may require carriers who have voluntarily issued commutation tickets to designate specifically both termini of such tickets.208 This rule of law has support in the principle that although a special rate or privilege may not be compelled, if it should be voluntarily granted by the carrier, the privilege, while existing, is so far subject to regulation as to prevent discrimination;209 but the carrier may change its policy and withdraw the privilege.210 § 38. Same Subject-Mileage Books-Party-Rate Tickets. -It has become a general practice for railroads to sell mileage books which entitle passengers complying with the terms stated therein to transportation at a rate less than the rate where a single ticket is purchased. By a mileage ticket, one person gets a number of rides at less than the usual fare, by 206 Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689; Louisville & N. R. Co. v. Bitterman, 144 Fed. 34, 75 C. C. A. 192, affirmed by Supreme Court, Bitterman v. Louisville & N. R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 Sup. Ct. 91. 207 La Farier v. Grand Trunk Ry. of Canada, 84 Me. 284, 286, 24 Atl. 848. 208 Delaware, L. & W. R. Co. v. Public Utility Comr's, 84 N. J. 619, 87 Atl. 801. For a discussion of a related subject see Rules and Regulations Governing Checking of Baggage, 35 I. C. C. 157. 209 Alabama & V. Ry. Co. v. R. R. Com. of Miss., 203 U. S. 496, 51 L. Ed. 298, 27 Sup. Ct. 163, affirming same-styled case, 86 Miss. 667, 38 So. 356. 210 Cent. of Ga. Ry. Co. v. Augusta Brokerage Co., 122 Ga. 646, 50 S. E. 473, 69 L. R. A. 119. a party-rate ticket a number of persons get one ride each at less for each one than would be the rate if each bought a single ticket. The Supreme Court has held that party-rate tickets open to all are not discriminatory under the Act to Regulate Commerce;211 and in the same case it was held that a party-rate ticket was neither a mileage nor a commutation ticket. Section 22 of the Interstate Commerce Act provides: "That nothing in this Act shall prevent the issuance of mileage, excursion or commutation passenger tickets.212 This provision indicates that there was a necessity therefor to prevent such a construction of the Act as would prohibit the issuance of these special contracts. No room is left, if there ever were such, for the states to regulate or require the issuance of mileage tickets for interstate transportation. The Interstate Commerce Commission has held that, as to interstate transportation of passengers, "the issuance of mileage books is voluntary," but if they are issued there must be no discrimination, although the carrier may "attach to the contract such lawful conditions as it chooses. "213 It is believed that the states may not require the issuance of these contracts and may not prescribe the terms thereof further than to prevent discrimination in their issuance and use. In 1891, the state of Michigan attempted to compel the sale by carriers of mileage books under certain prescribed conditions and, the state court having sustained the statute limiting its operation to intrastate commerce,214 the question was presented to the Supreme Court of the United States by writ of error to the state court. The questions raised in the Supreme Court, as stated in its opinion, were: "(1) whether the act violates the Constitution of the United States by impairing the obligation of any contract between the state and the railroad company; (2) if not, does it nevertheless violate 211 Baltimore & O. R. Co. v. Int. Com. Com., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. 212 Sec. 619, post. 213 Eschner v. Penn. R. Co., 18 I. C. C. 60, 63, 64; Re Practices Governing Sale and Exchange of Mileage Books, 28 I. C. C. 318, and cases cited; 214 Lake S. & M. S. Ry. Co. v. Smith, 114 Mich. 460, 72 N. W. 328. |