Amendment. "During a year two or three cars might pass over every mile of railroad in one state while hundreds constantly employed in another moved over lines of less total length." The opinion does not make clear whether the court means to condemn the mileage rule universally in favor of all car companies or only in favor of those who can show that it operates unreasonably in their particular case. It is recognized that it may be applied to a telegraph company.23

B. State Police Power and Interstate Commerce

Several cases involved alleged conflict between attempted enforcement of state inspection or pure food laws and congressional legislation or the constitutionally guaranteed immunity of interstate commerce from state interference. Corn Products Refining Co. v. Eddy24 sustained an order of the Kansas board of health requiring plaintiff to state on each can of syrup the percentage of each ingredient of which it was composed "not only when sold and offered for sale in domestic commerce, but also while in the hands of the importing dealers for sale in the original packages, and hence, in contemplation of law, still in the course of commerce from state to state." Congress had prohibited the misbranding of foods shipped in interstate commerce but had not required a statement of their ingredients. On the authority of Savage v. Jones25 it was held that the state law forbade nothing that Congress had sanctioned and interfered with no federal requirement, but dealt with something that Congress had left untouched. The same precedent, following earlier ones, had sustained the power of the state to require the disclosure of the ingredients of food products even when contained in the original package introduced from another state.28

"In Watters v. Michigan, (1918) 248 U. S. 65, 39 Sup. Ct. 29, it was conceded by appellant that the peddling of two small articles at rest in the state before the sale was not protected from state taxation by the federal Constitution even though the great bulk of the business was interstate, but it was urged that the application of the state law should be determined by the general course of business and not by an isolated transaction. Mr. Justice Holmes said that the argument had force, but that its denial by the state court was not reviewable by the Supreme Court.

24 (1919) 249 U. S. 427, 39 Sup. Ct. 325.

25 (1912) 225 U. S. 501, 32 Sup. Ct. 715.

"Two cases dealing with state inspection of illuminating oils while still under the protection of the commerce clause have already been considered. See footnotes 11 and 12, supra.

Weigle v. Curtice Brothers Co.27 and Hebe Co. v. Shaw28 held that the federal Pure Food and Drug Act in no way affected the power of the state to forbid intrastate sales of food products originating in other states. The contention to the contrary was based on McDermot v. Wisconsin29 which sanctioned the power of Congress to require the retention of labels on goods shipped in interstate commerce even after the commerce is over and the original package has been broken, and which denied the power of the states to make the retention of such labels unlawful. "But all this," remarks Mr. Justice Holmes, "has nothing to do with the question when interstate commerce is over and the articles carried in it have come under the general power of the State." After saying that the federal act "indicates its intent to respect the recognized line of distinction between domestic and interstate commerce," he adds that "it naturally would, as the distinction is constitutional," thus implying that the power of the state over domestic sales could not be interfered with by Congress except to prevent state interference with the enforcement of federal regulations governing interstate shipment. The Weigle case sustained state prohibitions against local sales of food products containing benzoic acid or benzoates even though shipped from other states in full compliance with the federal law. The Hebe case dealt similarly with condensed milk unless made from full cream milk.

In Merchants' Exchange v. Missouri30 the United States Grain Standards Act was held not to preclude a state from prohibiting any one but a state weigher from issuing weight certificates for grain weighed at a public warehouse, since the federal law related exclusively to standards of quality and condition. The contention that the state requirement, as applied to grain received from or shipped to points without the state, burdens interstate commerce received from Mr. Justice Brandeis the terse answer: "It clearly does not." Other federal acts which were conceded to contain some reference to weighing were said to manifest the purpose of Congress to cooperate with state acts and not to supersede them."

27 (1919) 248 U. S. 285, 39 Sup. Ct. 124. *8 (1919) 248 U. S. 297, 39 Sup. Ct. 125. ** (1913) 228 U. S. 115.

30 (1919) 248 U. S. 365, 39 Sup. Ct. 114.

In Louisville & N. R. Co. v. Western Union Tel. Co., (1919) 250 U. S. 316, 39 Sup. Ct. 513, a state grant of the right of eminent domain to put poles on a railroad right of way was held not to be precluded by the acts of Congress author

In two cases the Carmack Amendment was found not to preclude the exercise of the state power in question. In Missouri, K. & T. Ry. Co. v. Sealy the cause of action arose prior to the enactment of the federal statute and it was held that the right of one holding an interest in a bill of lading against the carrier which had issued it without receiving the goods for shipment was governed by the law of the state. State law was also held to be controlling in Chicago, R. I. & P. Ry. Co. v. Maucher33 which was a suit by one of the employees of Barnum & Bailey's circus against an interstate railroad on account of personal injuries received. The Carmack Amendment was declared to have no application to the controversy, since Congress had dealt only with the shipment of property and not with that of persons. Moreover it was found that under the contract between the circus and the railroad, the latter was not acting as a common carrier, and that therefore the injured employee of the circus must base his claim, not upon a contract of carriage, but upon the general right of a human being not to be injured by the negligence of another.

Another circus case came before the court in Southern Pacific Co. v. Arizona.34 The road had disobeyed an order of the state commission to carry the show at a designated rate between two Arizona points. It defended a prosecution for contempt on the ground that the state commission was without jurisdiction because the proposed train movement was interstate, since the show was on a tour from Texas, through Arizona and New Mexico into California. The court found, however, that on the date of the order the interstate transportation into Arizona was at an end and no other transportation had then been contracted for. The mere intention to leave the state later did not convert the contemplated intrastate movement into one that was interstate. The reasoning on which the decision is based gives some ground for the inference that the halting movements of a traveling exhibition might under certain circumstances be regarded as a single journey whose entire character would be interstate if the beginning and the end were in different states.

In two other cases state rates were held applicable because the movement in question was not interstate. Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co.35 dealt with transportation of logs

** (1919) 248 U. S. 363, 39 Sup. Ct. 97. See 17 Michigan Law Review 420. 33 (1919) 248 U. S. 359, 39 Sup. Ct. 108.

(1919) 249 U. S. 472, 39 Sup. Ct. 313. as (1919) 249 U. S. 134, 39 Sup. Ct. 237.

from a forest to a mill, both in Arkansas. The fact that experience showed that ninety-five per cent of the finished product was shipped from the mill to points in other states was held insignificant. The distinction between the case and those3 in which under somewhat similar states of facts the federal antitrust law has been held applicable was declared to be "so evident that particular analysis may be dispensed with."

In Public Utilities Commission v. Landon" a natural gas company which piped gas across state lines and sold it to distributing companies which sold it to consumers complained that the rates fixed for the distributing companies were unreasonably low and were also unwarranted interferences with interstate commerce. But the Supreme Court held that the interstate movement ended when the gas passed into the local lines, and that the rates fixed for the distributing companies were no concern of the producing company. The fact that the charges of the latter were a percentage of the gross amount received by the former was said not to make the sales to consumers an integral part of the interstate business, particularly since the contracts between the two companies were capable of alteration.

One of the complaints urged in Denver & Rio Grande R. Co. v. Denver against an order of a state commission compelling the vacating of a track on the public street was that it interfered unduly with interstate commerce and amounted to an unconstitutional regulation thereof. But the Supreme Court found to the contrary in view of the fact that the track was not on the main line but served only a few industries which could be reached in other ways.

Carey v. South Dakota" which sustained a state prosecution for shipping wild ducks has already been referred to for its bearing on the constitutionality of the federal Migratory Bird Law. The power of the .state to apply its prohibitions to interstate transit was sustained on the authority of Geer v. Connecticut. The clause in the federal law declaring that such birds shall be deemed within the protection and custody of the United States was held to e tend that custody and protection only to prohibiting their destruction contrary to federal regulations, and therefore not to preclude state laws aimed also at their preservation.

Texas & N. O. R. Co. v. Sabine Tram Co. (1913) 227 U. S. 111, and cases cited. * (1919) 249 U. S. 236, 39 Sup. Ct. 268. See 32 Harvard Law Review 860.

** (1919) 250 U. 8. 241, 39 Sup. Ct. 450.

** (1919) 250 U. S. 118, 39 Sup. Ct. 403, note 10, supra.

II. THE WAR POWER

In two important cases the court decided that the statutes under which the President was authorized to take control of the railroads, telephones and telegraphs during the war conferred power to fix intrastate as well as interstate rates. In Northern Pacific Ry. Co. v. North Dakota," which involved railroad rates, the parties had raised only the question of the interpretation of the statute, but the opinion of the Chief Justice is assumed by the Chief Justice in his opinion in the telephone case to pass on the constitutional question as well. There is a back-handed implication in the opinion in the railroad case that the constitutional issue could not be waived by the parties, for, after observing that the court puts the constitutional issue temporarily out of view, the Chief Justice adds: "We say temporarily, since even upon the assumption that issues concerning them necessarily inhere in the cause and cannot be waived by the parties, we could not decide concerning such issues without interpreting the statute, which we proceed to do." In the process of interpretation it is laid down: "The complete and undivided character of the war power of the United States is not disputable. . . . To interpret, therefore the exercise of the power by a presumption of the continuance of a state power limiting and controlling the national authority was but to deny its existence. It was akin to the contention that the supreme right to raise armies and use them in case of war did not extend to directing where and when they should be used."

That this language was designed to pass on the constitutional issue not raised by the parties is apparent from the statement in Dakota Central Telephone Co. v. South Dakota2 decided the same day. In sustaining the power to take over the telephones and telegraphs and to fix all rates, the Chief Justice says: "That under its war power Congress possessed the right to confer upon the President the authority which it gave him we think needs nothing here but statement, as we have disposed of that subject in the North Dakota railroad rate case." To this he added: "And the completeness of the war power under

41 (1919) 250 U. S. 135, 39 Sup. Ct. 502. ** (1919) 250 U. S. 163, 39 Sup. Ct. 507. Other cases deciding the same issues are Burleson v. Dempsey, (1919) 250 U. S. 191, 39 Sup. Ct. 511, Macleod v. New England Tel. & Tel. Co., (1919) 250 U. S. 195, 39 Sup. Ct. 511, and Kansas v. Burleson, (1919) 250 U. S. 188, 39 Sup. Ct. 512. For an article on the interpretation of the statute, published prior to these decisions, see H. W. Bickle, "State Power over Interstate Railroad Rates During Federal Control," 32 Harvard Law Review 299.