We

thing from the archaic institution which did duty for positive law at the epochs portrayed by Sir Henry Maine. Why not concede that the analyses of these different writers are not of universal application, but relate to different spheres? This done, the differentia of the definitions are sufficiently noted without convicting any body of error. observe that nearly all the late international lawyers and text-writers seem to think it incumbent on them to attribute the force of law to custom, and to exaggerate the importance of Sir Henry Maine's critique that Austin's definition of law fails to take into consideration very archaic societies where custom had certain concomitants of law. But this was no discovery of the greater comparative jurist. Cicero in his too little read Treatise on the Law noted the same phenomenon, * * * tamen erunt fere in more maiorum qui tum ut lex valebat. (Lib. II, cap. 10, f. 20.)

Where is the necessity then of postulating that custom is law in order to build up a true international law? Custom may not be lex, and yet the law of nations may have a veritable existence. We think that it has, and that Mr. Justice Stephen and other English lawyers fail to treat it with enough deference in the positions cited by Professor Lawrence. But until the late Oxford revival English lawyers have not been strong on international law. There is a large hiatus between Selden's Mare Clausum and such writers as Westlake, Hall and Twiss, not forgetting Lord Stowell.

Positive external law of nations, as we prefer to designate that part of the code which is of universal operation, is positive law enforced by the great modern amphictyonic council. There the resemblance of the law of nations to internal positive law of a particular State stops. The shadowy border land between ethics and law is only law in posse, whether it lies in the domain of the international lawyers or in that of the municipal lawyers. It is no more law in the one case than in the other. The difficulty with Professor Lawrence- -one common to most of the late writers on international law is that he overstates his case; he claims too much for the institutes of his science, and is unwilling to recognize that the law of nations is yet in embryo. In two more centuries, such as the nineteenth, the international lawyers will no doubt fill a proud place in the administration of law, for the importance of their vocations will increase with the never-ending advance of science, which goes hand in hand with commerce. But Professor Lawrence fails less in this respect than do others of his school.

The essay on the Suez canal becomes of interest here as the Isthmus canals approach completion, for it may be assumed that a canon of international jurisprudence relating to the former will some day be affirmed by the European powers, to be of universal operation. Our National embarrassment is that we have been excluded by our continental policy from aiding to formulate these canons, and will

therefore have to contend that they are not res adjudicatæ.

It is the paper on the Panama canal, and the Clayton-Bulwer treaty which has the most direct interest for us on this side of the water. The history of the treaty is first given from the British point of view. Then the several contentions of the signatory powers, and in the course of this discussion considerable insight into recent British criticisms of Mr. Blaine's supposed policy is afforded. The means which the author suggests for the neutralization of the canal are set out at length. Much stress is laid upon what was unquestionably Mr. Evarts' unfortunate mistake in assenting to the Egyptian law of liquidation, with the effect of permitting us to conclude that considerable, or busy lawyers, are not always the best prime ministers of a great continental power. All the author's ingenuity is brought to bear on his argument, and while it contains plenty of food for discussion we prefer not to review at the present time the various positions urged. Before long much more will be written on this subject, and then the mere spectator will be better able to draw for himself correct conclusions. One thing we do however desire to notice, and that emphatically; it is that our distinguished friend, Commander Goodrich, U. S. N., overstepped the bounds of military criticism when he touched in his late book on the propriety of the British occupation of the Suez canal. Soldiers and sailors of all nations think much alike, and are hardly authority on international law, which is founded on that rock-peace to all men.

Of all the essays in this volume we prefer that on the Work of Grotius. The setting is a good picture of Grotius' historical environment, and the reasons why his utterances were immediately potent among nations. This essay also indicates briefly, but sufficiently, the influence of the Stoic philosophy on the Roman ius gentium, and the natural confusion of ius naturale with ius gentium, an error which greatly influenced the founders of the modern law of nations. It may be thought that this paper will have only a special interest to the international lawyers, but this is erroneous. The law of nations possesses a singular interest to our own jurisprudence in New York. The struggle of feudality with the ius naturale tinges our entire colonial epoch, during which the foundations of our jurisprudence and government were laid. When a complete history of American law comes to be written the influence of the so-called "law of nature" will have to be profoundly considered, for it plays a great role in the destruction of the feudal system which our English princes at one time struggled to perpetuate among us. In short, the thinking municipal lawyer who glances observedly through this volume will find much suggested, much to ponder over in the enlarged horizon it presents to him.

The little volume is well done, well printed, and

an agreeable variation from the ponderous tomes which formerly were thought appropriate to weighty subjects. It is in such little volumes libelli they may be called that the best modern thought finds its fittest medium of expression, and they foreshadow the day when law shall be no longer a law of technicalities, but as it was in the best days of Rome, a science and a part of the complement of every gentleman's and every scholar's education. We may close our little notice of this book with the hope of its author repeated, tha: some day the evolution of juristic science will lead to perpetual peace.

BAILMENT-WAREHOUSEMAN-COMMINGLING GRAIN-NEGLIGENCE

SUPREME COURT OF INDIANA, MAY TERM, 1884.

RICE V. NIXON.*

Where a warehouseman receives grain to be stored for the owner, and places it in a common bin with his own or that received from other depositors, and sells from this receptacle, retaining always sufficient to supply each owner, the contract continues one of bailment, and the warehouseman is not liable for a loss resulting from an accidental fire not attributable to his wrong or negligence.

FROM the Fountain Circuit Court

J. S. Nave, B. F. Hegler, W. S. Potter and A. A. Rice, for appellants.

T. F. Davidson, for appellee. ELLIOTT, C. J. The appellee was a warehouseman and it was his custom to receive wheat on deposit, and to place it in a common bin with wheat bought by him, and it was also his custom to sell wheat from this bin, but of this custom the appellants had no knowledge. In August, 1882, the appellant, Victoria Rice, deposited with the appellee 210 bushels of wheat: this was thrown into the common bin in accordance with the custom of the appellee, and with it was mingled wheat bought by him and wheat stored by other depositors, and from this bin wheat was sold from time to time, but there was always in the bin wheat enough to supply all depositors, and at any time before the destruction of the warehouse by an accidental fire the appellant could have received from the bin all the wheat she had deposited. Some time after the storage of the wheat the warehouse and all its contents were destroyed by fire, but the fire was not attributable to the wrong or negligence of the appellee. No demand was made for the wheat until after its destruction. The wheat was stored with the appellee, and there was no agreement that the bailor should have an option to demand the grain or its value in money.

There are cases in which the bailee is responsible for the loss of goods where he commingles them with his own, but this principle does not apply where a warehouseman receives grain to be stored for the owner. Articles of such a character can be separated by measurement, and no injury results to the owner from the act of the warehouseman in mingling them with like

articles of his own.

This doctrine is older at least than Lupton v. White, 15 Ves. Jr. 432, for there Lord Eldon said: "What are the cases in the old law of a mixture of corn or flour? If one man mixes his corn or flour with that of an. other, and they were of equal value, the latter must *To appear in 97 Indiana Reports.

have the given quantity; but if articles of different value are mixed, producing a third value, the aggregate of both, and through the fault of the person mixing them the other party cannot tell what was the original value of his property, he must have the whole." Chancellor Kent takes a like view of the

question, and his last editor, Judge Holmes, cites a great many cases upon the subject. 2 Kent Com. (12th ed.) 365, 590. This is the view taken by the textwriters and courts generally in cases where the deposit is made with a warehouseman. Story Bail., §40; Bis.& Sim. Law of Prod. Ex., § 152; 2 Schouler Pers. Prop. 46; 6 Am. Law Rev.457; 2 Black.Com. (Cooley's ed.) 404, note. There is however, as shown by the cases cited, some conflict of opinion, but as said in a late work, the great weight of authority is that the contract is one of bailment, and not of sale, the warehouseman and the depositor becoming owners as tenants in common. Bis. & Sim. Law of Prod. Ex., § 154, auth. note 9. To the authorities cited by the authors referred to may be added Ledyard v. Hibbard, 48 Mich. 421; S. C., 42 Am. Rep. 474; Nelson v. Brown, 44 Iowa. 455; Sexton v. Graham, 53 id. 181; Nelson v. Brown, id. 555; Irons v. Kentner, 51 id. 88; S. C., 33 Am. Rep. 119, where the rule is carried much farther than is necessary in the present instance. The rule which we accept as the true one is required by the commercial interests of the country, and is in harmony with the cardinal principle that the intention of contracting parties is always to be given effect. It is not unknown to 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 through the medium of elevators and warehouses, and it cannot be presumed that warehousemen in receiving grain for storage, or depositors in intrusting it to them for that purpose, intended or expected that each lot, whether of many thousand bushels or of a few hundred, should be placed in separate receptacles; ou the contrary, the course of business in this great branch of commerce, made known to us as a matter of public knowledge and by the decisions of the courts of the land, leads to the presumption that both the warehouseman and the depositor intended that the grain should be placed in a common receptacle and treated as common property. This rule secures to the depositor all that in justice he can ask, namely, that his grain shall be ready for him in kind and quantity whenever he demands it. Any other rule would impede the free course of commerce, and render it practically impossible to handle our immense crops. It is reasonable to presume that the warehouseman and his depositor did not intend that the course of business should be interrupted, and that they did not intend that the almost impossible thing of keeping each lot, small or great, apart from the common mass should be done by the warehouseman. If the warehouseman is not bound to place grain in a separate place for each depositor, then the fact that he puts it in a common receptacle with grain of his own and that of other depositors, does not make him a purchaser, and if he is not a purchaser then he is a bailee. In all matters of contract the intention of the parties gives character and effect to the transaction, and in such a case as this the circumstances declare that the intention was to make a contract of bailment and not a contract of sale. The duties, rights and abilities of warehousemen are prescribed by the law as declared by the courts and the Legislature, and as matter of law it is known to us that a warehouseman, by placing grain received from a depositor in a common receptacle, and treating it as the usages of trade warrant, does not become the buyer of the grain, unless indeed there is some stipulation in the contract imposing that character upon him.

The cases in our own reports, cited by counsel for the appellants, do not oppose the conclusion here reached. In Pribble v. Kent, 10 Ind. 325, the defendants received of the plaintiff 132 bushels of wheat, and on demand failed to deliver the grain, and it was held that an action would lie, but the contract was held to be one of bailment and not of sale. It is plain therefore that in the case cited there was no such ruling as that asked by the appellants in the present case; on the contrary, the ruling overturns their theory.

In Ewing v. French, 1 Blackf. 353, and Carlisle v. Wallace, 12 Ind. 252, the wheat was delivered to a miller to be ground into flour, and this was held to be a sale, on the ground that the character of the article was to be entirely changed, and a new and different article was to be given by the miller to his customer in return for the wheat. In the last of the cases cited the option of demanding wheat, flour or money was vested in the depositor, so that he had the option of making the contract one of bailment or one of sale, and he exercised that option by treating the transaction as a sale. In the case under examination there was no option, for it is expressly found that the wheat was received by the warehouseman for storage. The case of Ashby v. West, 3 Ind. 170, holds that one who delivers wheat to be manufactured into flour is the owner of the flour, and may maintain replevin, the court saying: "We are clearly of the opinion that that contract is one of bailment, and not of sale," and this is against the contention of the appellants.

In deciding that the contract was one of bailment, and not of sale, we determine the only debatable question in the case, for it has been long settled that where property in the custody of a bailee is destroyed by an accidental fire, and there has been no fault or negligence on his part, he is not liable.

We have examined the rulings on the demurrers to the answers and think they were correct, but if we were wrong in this there could be no reversal, because the special finding clearly shows the ground on which the judgment rests, and from this it appears that if the rulings were erroneous the errors were harmless.

Judgment affirmed.

[NOTE.-See 10 Am. Rep. 581; 74 Ill. 213; 42 Iowa, 38. A warehouseman is liable for the negligent injury of goods stored with him for hire, though it appear that after the happening of the injury the goods were destroyed without his fault, and that they must have been so destroyed, even if no damage had previously occurred. Powers v. Mitchell, 3 Hill, 545.-ED.]

CONSTITUTIONAL LAW INTER-STATE COMMERCE-POWERS OF CONGRESS.

KANSAS SUPREME COURT, NOVEMBER 28, 1884. HARDY V. ATCHISON, TOPEKA & SANTA FE R. Co.* Under article 1, section 8 of the Constitution of the United States, the power of Congress to regulate commerce among the States-inter-State commerce-which consists, among other things, in the transportation of goods from one State to another, is exclusive.

The fact that Congress has not seen fit to prescribe any specific rules to control or regulate the transportation of goods from a place in one State to a place in another-interState commerce-does not empower the States of the Union to regulate such commerce. Its inaction on the subject, when considered with reference to its other legislation, is equivalent to a declaration that inter-State commerce shall be free and untrammeled.

To appear in 32 Kansas Reports.

Query: Has not Congress legislated upon inter-State commerce by the act of June 15, 1866, authorizing all railroad companies to transport passengers and freight from State to State and empowering them to receive and accept compensation therefor? Rev. Stat. of United States (1879), § 5258.

Section 57, chapter 23, Comp. Laws of 1878, known as the "Maximum Freight Rate Law" of 1868, had no application to fix or limit the charges for transportation of freight from another State into this State, because if it was intended to apply to such inter-State commerce, it was in violation of article 1, section 8 of the Constitution of the United States, and therefore void.

ERR

RROR from Reno county District Court. The opinion of the court sufficiently states the case. James McKinstry, for plaintiff in error.

A. A. Hurd, Robert Dunlap and John Reid, for defendant in error.

HORTON, C. J. It appears from the agreed statement of facts that while the Maximum Freight Rate Law of 1868 was in force in this State, the goods and merchandise mentioned in plaintiff's bill of particulars were shipped from St. Louis, Mo., under a contract made there for transporting the same from St. Louis, Mo., to Hutchinson, Kans., upon the usual through rates charged upon such class of goods; that on the shipments of the goods only one receipt or bill of lading was issued to the plaintiff; that the through rate for the freight charged and collected was in every instance the same as charged by mutual arrangements of all the railroads connecting with the defendant's railroad for similar shipments from St. Louis to Hutchinson; that in the division of the freight among the railroad companies transporting the goods, the Atchison, Topeka & Santa Fe Railroad Company received an amount thereof in excess of its ordinary local freight rates, and an amount in excess of that authorized by the Maximum Freight Rate Law of Kansas at that time in force. $ 57, ch. 23, Comp. Laws of 1879.

Plaintiff claims to recover the alleged overcharges paid by him for the transportation of his goods. It is admitted, if he is entitled to recover any thing, he shall recover an amount equal to that received by the defendant or its proportion of the through rate on the shipments, less the amount of its local rates from the point where the goods and merchandise were delivered to it by the connecting line to Hutchinson.

On the part of the railroad company it is contended that § 57, ch. 23, Comp. Laws of 1879, had no application to the transportation of freight from another State into this State.

Section 57 is as follows: "Every such railway shall arrange and classify all property usually carried by them over their roads, and shall affix thereto the rates respectively at which the same shall be transported between the several stations, or points of connection or intersection of other roads, which rate shall be per one hundred pounds, and shall not exceed, for distance less than fifty miles, twenty cents per ton per mile, fifteen cents per ton for second class, and ten cents per mile per ton for third class articles; for distances of fifty miles and over, but less than one hundred miles, fifteen cents per ton per mile for second class, and seven cents per mile for third class articles; for distances of one hundred miles or more, ten cents per mile per ton for first class, eight cents per ton per mile for second class, and five cents per ton per mile for third or other classes."

The contention is that any statute fixing or limiting the charges for transportation of goods from a place in one State to a place in another is an attempt to regulate commerce between the States, and that

such a statute is invalid as a regulation of inter-State commerce. In support of this it is asserted that the exclusive right to regulate inter-State commerce is expressly confided by the Constitution of the United States to Congress by article 1, section 8, which declares, that "the Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The Federal courts have established that the transportation of merchandise from place to place by railroad is commerce; that the transportation of merchandise from a place in one State to a place in another is commerce among the States, or inter-State commerce; that to fix or limit the charges for such transportation is to regulate commerce; that a statute fixing or limiting such charges for transportation from places in one State to places in another is a regulation of commerce among the States; that the power to regulate such commerce is vested by the Constitution of the United States in Congress. Keiser v. Ill. Cent. R. Co., 16 Am. & Eng. R. Cas. 40; Louisville & N. R. Co. v. Railroad Com. of Tenn., id. 1: Carton v. Ill. Cent. R. Co., 59 Iowa, 148; 6 Am. & Eng. Cas.317, and the authorities there cited.

The debatable question is, how far this power is concurrent. May a State act until its legislation is superseded or interfered with by Congress? In other words, may Kansas control or regulate, within its limits, the charges for transportation of goods shipped from another State, under a contract made in that State, to a place in this State? We suppose it will be conceded that Kansas can pass no law which seeks to fix or limit the charges for the carriage of goods over the lines of its railroads which pass over its territory, but neither originate nor terminate within it, as for instance, goods passing from Missouri to Colorado, Texas or New Mexico. We suppose it will be conceded also that it is beyond the power of Kansas to fix the whole charge for the carriage of goods from a point in the State to a point in another. This would be an attempt to give our laws an extra-territorial force. If however the power of Congress to regulate commerce among the States-inter-State commercewhich consists, among other things, in the carriage of persons and the transportation of goods from one State to another, is exclusive, then section 57 could not fix or limit the charges in controversy. This question is one upon which the decisions of the Supreme Court of the United States are final. We shall therefore refer to the more important of those adjudications.

In Crandall v. State of Nevada,6 Wall. 35,a statute of Nevada, which in effect laid a tax upon every traveller passing through or beyond its territorial limits, was adjudged to be invalid, but not on the ground that it was a regulation of inter-State commerce. Chief Justice Chase and Mr. Justice Clifford dissented from this conclusion, and pronounced the act to be a regulation of inter-State commerce exclusively within the jurisdiction of Congress.

In the case of the State Freight Tax, 15 Wall. 232, a statute of Pennsylvania, which in effect, laid a tax upon all freight taken up within the State and carried out of it, or taken up without and brought within it by any railway, was adjudged to be void. The decision was placed solely upon the ground that the law was a regulation of commerce among the States and was invalid, although Congress had never legislated in reference to the same subject-matter. Mr. Justice Strong, in delivering the opinion, said: "The tax upon freight transported from State to State is a regulation of inter-State transportation, and therefore a regulation of commerce among the States. It is a rule prescribed for the transporter by which he is to be controlled in bringing the subjects of commerce into

a State and in taking them out. * If then this is the tax upon freight carried between States and a tax, because of its transportation, and if such tax is in effect a regulation of inter-State commerce, the conclusion seems to be inevitable that it is in conflict with the Constitution of the United State. It is not necessary to the present case to go at large into the much debated question, whether the power given to Congress by the Constitution to regulate commerce among the States is exclusive. In the earlier decisions of this court, it was stated to have been so entirely vested in Congress that no part of it can be exercised by a State. It has no doubt often been argued and sometimes intimated by the court that so far as Congress had not legislated on the subject, the States may legislate respecting inter-State commerce; yet if they can, why may they not add regulations to commerce with foreign nations beyond those made by Congress, if not inconsistent with them? For the power over both foreign and inter-State commerce is conferred upon the Federal Legislature by the same words, and certainly it has never yet been decided by this court that the power to regulate inter-State, as well as foreign commerce, is not exclusively in Congress. * * Inter-State transportation of passengers is beyond the reach of a State Legislature. ** *Merchandise is a subject of commerce; transportation is essential to commerce; and every burden laid upon it is, pro tanto, a restriction. Whatever therefore may be the true doctrine respecting the exclusiveness of the power vested in Congress to regulate commerce among the States, we regard it as established that no State can impose a tax upon freight transported from State to State, or upon the transporter because of such transportation."

In Welton v. State of Missouri, 91 U. S. 275, Mr. Justice Field said: "It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance and admits and requires uniformity of regulation. The very object of investing this power in the general government was to insure this uniformity against discriminating State legislation. * * * The fact that Congress has not seen fit to prescribe any specific rules to govern inter-State commerce 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 and untrammeled."

In Railroad Co. v. Husen, 95 U. S. 465, Mr. Justice Strong said: "Whatever may be the power of a State over commerce that is completely internal, it can no more prohibit or regulate that which is inter-State than that which is with foreign nations. Power over one is given by the Constitution of the United States to Congress in the same words in which it is given over the other, and in both cases it is necessarily exclusive. That the transportation of property from one State to another is a branch of inter-State commerce is undeniable, and no attempt has been made in this case to deny it. *** This court has heretofore stated that inter-State transportation of passengers is beyond the reach of a State Legislature, and if as we have held State taxation of persons passing from one State to another, or a State tax upon interState transportation of passengers is prohibited by the Constitution because a burden upon it, a fortiori, if possible is a State tax upon the carriage of merchandise from State to State. Transportation is essential to commerce, or rather it is commerce itself, and every obstacle to it, or burden laid upon it by legislative authority, is regulation."

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 inter-State commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. *** If 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 hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interest of others. Nay more, it could prescribe rules by which a carrier must be governed within the State in respect to passengers and property brought from 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 embarrassments."

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 itself. *** A specific tax on each message, so far as it operates on private messages sent out of the State, is a regulation of foreign and inter-State commerce and beyond the power of the State."

In Steamship Co. v. Board of Railroad Commissioners, 18 Fed. Rep. 10, Mr. Justice Field said: "It was at 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 portion 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 Iowa, 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 specific rules to govern inter-State commerce, that 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."

State v. Saunders, 19 Kans. 127; Welton v. State 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, 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 approvingly what was said by Mr. Justice Field, speaking for the court in Welton v. State of Missouri, 91 U. S. 282, that "inaction (by Congress) * is equivalent to a declaration that inter-State commerce shall remain free and untrammeled." Referring to those decisions, the Supreme Court of Iowa in Carton v. Rallroad 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 commerce 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 considered 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 beyond the boundaries of the State and to be carried across 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 however 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 domestic concern, even though incidentally they may reach beyond the State. Clearly a statute of the State prescribing rates of freight for goods,