§ 1410. Action by municipal or other local government. The legislature may by statute confer the power of fixing rates upon counties, cities, or villages, or any such bodies as constitute local governments; and the power so conferred may be exercised by the body named in accordance with the terms of the statute.1 The power is derived solely from the statute; and in the absence of such authority there is no power inherent in a municipal corporation to regulate the rates of public service companies.2 Nor is the power involved in the police power, the licensing power, or the general power to regulate

corporations using the streets.' If, however, the right to fix rates by ordinance is granted to the city it will be construed as a permanent power, not exhausted by a single act of fixing rates, but capable of being exercised by revising the rates after they have been once fixed.2 § 1411. Function of the courts in declaring regulation void.

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But any action by any subordinate body may be attacked in any court in which the question may come up as unconstitutional. And as a practical matter in almost every case where such an attack is made, it may be based upon a provision of the constitution of the United States: that against impairing the obligation of contracts, depriving of equal protection of the laws, or taking property without due process of law. A considerable number of cases have therefore been taken to the Supreme Court of the United States and an important body of doctrine has been developed by the decisions, which will be examined at large in this chapter.1

§ 1412. When suit is against State official.

If the rate order complained of in an unconstitutional

1Old Colony Trust Co. v. Atlanta, 83 Fed. 39 (1897).

2 Freeport Water Co. v. Freeport, 180 U. S. 587, 45 L. ed. 679, 21 Sup. Ct. 493 (1901).

The following are cases of this sort: Railroad Commission Cases, 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. 334, 388, 1191 (1886); Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 8 Sup. Ct. 1028 (1888); Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377, 9 Sup. Ct. 47 (1888); Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 10 Sup. Ct. 462, 702 (1889); Chicago & G. T. Ry. Co. v.

Wellman, 143 U. S. 339, 36 L. ed. 176, 12 Sup. Ct. 400 (1892); Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 38 L. ed. 1014, 14 Sup. Ct. 1047 (1894); St. Louis & S. F. R. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. 484 (1895); Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. 198 (1896); Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. 418 (1898).

See particularly Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, 48 L. ed. 1102, 24 Sup. Ct. 756 (1904).

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statute is void, a suit to restrain a State official from enforcing it is not a suit to restrain him in acting under a State law, nor is it a suit against a State. A Federal court may therefore entertain such a suit. "It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that amendment." 2

Topic C. Division Between Federal and State Jurisdiction 1413. What constitutes interstate commerce.

The question whether a certain transaction constitutes interstate commerce must be determined by ascertaining what the real transit is, and whether that traffic is or is not between separate States. Whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State and some acting through two or more States, in no respect affects the character of the transaction. Even a train composed of empty coal cars, although destined for a point in another State to procure a load, has been held to be engaged in transporting articles of interstate commerce so as to be beyond the control of State laws. However, it is now settled that even if the termini are within the same State it is interstate commerce if the goods are to move

1 Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 38 L. ed. 1014, 14 Sup. Ct. 1047 (1894).

2 Harlan, J., in Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. 418 (1898).

The Daniel Ball, 10 Wall. 557, 19 L. ed. 999 (1871).

Norfolk & W. R. R. Co. v. Com., 93 Va. 749, 24 S. E. 837, 34 L. R. A. 105 (1896).

See also Larrabee Flour Mills v.

through another State during the transit,' although at one time it seemed to be decided that such commerce did not involve interchange of commodities between States.2 Anything may be the subject of interstate commerce, it seems. Thus Congress may forbid the interstate transportation of lottery tickets. But diseased cattle are apparently held not the subject of interstate commerce.1

§ 1414. Continuous carriage under common control.

When goods are shipped under a through bill of lading from a point in one State to a point in another, and are taken by a State common carrier under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the law." The through billing and rating is the usual but by no means the only method of manifesting a common arrangement. In the case of carriage of passengers a similar interpretation will be made; assent by a carrier to the

Missouri Pacific Ry Co., 74 Kan. 808, 88 Pac. 72 (1906).

1 United States.-Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. 214.

Minnesota.-State v. Chicago, S. P., M. & O. R. R. Co., 40 Minn. 267, 3 L. R. A. 238 (1889).

South Carolina.-Sternberger v. Cape Fear & Y. V. R. R. Co., 29 S. C. 510 (1888).

2 United States.-Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672, 12 Sup. Ct. 806, (1892); United States v. Lehigh Valley R. R. Co., 115 Fed. 373 (1902).

Missouri.-Seawell V. Kansas City, F. S. & M. R. R. Co., 119 Mo. 222, 24 S. W. 1002 (1893).

New York.-Dillon v. Erie R. R.

Co., 19 N. Y. Misc. 116, 43 N. Y.
Supp. 320 (1897).

3 Lottery Case, 188 U. S. 321, 47 L. ed. 4921, 23 Sup. Ct. 321 (1903). 4 Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. 488 (1898).

"Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700 (1896); Louisville & N. R. R. Co. v. Behlmer, 175 U. S. 648, 44 L. ed. 309, 20 Sup. Ct. 209 (1899); United States v. Seaboard Ry. Co., 82 Fed. 563 (1897); Interstate S. Y. Co. v. Indianapolis U. Ry. Co., 99 Fed. 472 (1900).

State v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.), 44 S. W. 542 (1898).

issue of a through ticket over several railroads constitutes an arrangement for continuous carriage.1 Where, therefore, a local carrier takes part in the carriage of goods through to destination in another State, though its share of the carriage is entirely within the State, it is engaged in interstate commerce.2 This is often shown to be the case by a through billing and rating of the goods assented to by the carrier in question.3 In Texas it has been held that through billing is not enough, and a State carrier is not engaged in interstate commerce unless it takes part in a through rating. But it is now certain that the rating need not be joint; the State carrier is none the less an interstate carrier, because its share of the total rate is equal to his entire local rate, if it takes part in or permits through billing. And it does not seem necessary for the establishment of a through carriage to prove that a technical through rate has been named.

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§ 1415. Continuity of interstate shipment.

If the transporting of goods or passengers to an ultimate destination in another State has begun, interstate commerce has begun, and no device to break up the transit into intrastate portions will affect its real nature. So where transportation of goods destined for a point without the State has been actually begun, temporary stoppage within the State without the intention of abandoning the

1 Carrey v. Spencer, 36 N. Y. Supp. 886 (1895); Missouri, K. & T. R. R. Co. v. Fookes (Tex. Civ. App.), 40 S. W. 858 (1897).

Norfolk & W. R. R. Co. v. Pennsylvania, 136 U. S. 114, 34 L. ed. 394, 10 Sup. Ct. 958 (1890); Ex parte Kochler, 30 Fed. 867 (1887); Augusta So. R. R. Co. v. Wrightsville & T. R. R. Co., 74 Fed. 522 (1896).

Co. v. Interstate Comm. Comm.,
162 U. S. 184, 40 L. ed. 935, 16 Sup.
Ct. 700 (1896).

Gulf, C. & S. F. Ry. Co. v.
Nelson, 4 Tex. Civ. App. 345, 23
S. W. 732 (1893); Houston & T. C.
Ry. Co. v. Williams (Tex. Civ.
App.), 31 S. W. 556 (1895); Houston
& T. C. Ry. Co. v. Davis, 11 Tex.
Civ. App. 24, 31 S. W. 308 (1895).
5 United States v. Seaboard Ry.

Cincinnati, N. O. & T. P. Ry. Co., 82 Fed. 563 (1897).