would arise among the States similar to those which had existed under the old confederation, which would lead practically to the destruction of inter-State commerce, and it was regarded as specially important that no power in the legislature of any one State to interfere with commerce or trade in any other State should be recognized as existing.

My conclusion is, therefore, that the statute in question, if held to apply to inter-State commerce, is in violation of the constitution of the United States. In this view I am supported by the recent decision of the supreme court of this State (Carton v. Ill. Cent. R. Co., supra), in which the act now under consideration was held to be unconstitutional. If I were in doubt upon the subject, I should not hesitate to follow that ruling.

I am not aware that the federal courts have ever in the course of our history undertaken to enforce a State statute which has been held void by the supreme judicial authority of the State. I should hesitate long before undertaking to enforce in this tribunal any act of the State legislature which the supreme court of the State has held, for any reason, to be null and void. To do so would be to give to suitors who can come here an unjust advantage over the citizens of the State who are compelled to submit their rights to the determination of the State courts.

The demurrer to the answer is overruled.

Regulation of Inter-State Commerce.-The question raised in the principal case is one of the most interesting and important constitutional points which has arisen for some time in this country. The right of the States to pass laws which indirectly affect inter-State commerce is involved. Congress has not remained entirely passive upon the point. In 1866 it passed an act authorizing all railroad companies to transport passengers and freight from State to State, and empowering them to receive and accept reasonable compensation therefor. The existence of this statute must be borne in mind in the discussion which follows.

Regulation of Railroads Entirely within State.-A regulation of railroads which in its direct effect is confined exclusively to the business done within the State is clearly valid, although indirectly it may affect inter-State commerce. State Tax on Railway Gross Receipts, 15 Wall. 284; Munn v. Illinois, 94 U. S. 113; Chicago, etc., R. R. Co. v. Iowa, 94 U. S. 155; Peik v. Chicago & N. W. R. Co., 94 U. S. 164.

A tax, therefore, on the gross receipts of a domestic corporation is valid, although such receipts are in part derived from the transportation of merchandise in and out of the State. State Tax on Railway Gross Receipts, 15 Wall. 284. An act requiring grain warehouses within the State to take out licenses, requiring such warehouses to post up their fixed rates of charge, prohibiting discrimination in charges, and fixing a maximum legal tariff, is not invalid, though it may indirectly affect inter-State commerce. Munn v. Illinois, 94 U. S. 113.

A law fixing a maximum rate of freight which may be charged by a railroad company is valid where the railroad is entirely within the State. Chicago, etc., R. Co. v. Iowa, 94 U. S. 155.

Such a law is valid where the railroad is not entirely in the State, but the

act contains a special clause that it shall not be taken as referring in any way to inter-State commerce. Peik v. Chicago & N. W. R. Co., 94 Ü. S. 164. It must be conceded, however, that were Congress to pass any law relative to inter-State commerce with which the laws above adverted to would conflict in any way, however small, they would pro tanto become void.

What is Regulation of Inter-State Commerce.-Some State acts are so clearly a direct attempt to regulate inter-State commerce that they have been pronounced void. Thus an act prohibiting all railroad companies within a State from delivering goods or passengers to other railroad companies at any other point than within the State, is clearly illegal, as it necessitates a breaking of bulk on the border of the State. City of Council Bluffs v. Kansas City, St. J. & C. B. R. Co., 45 Ill. 338. An act prohibiting the transportation of cattle over the boundary of a State during certain months in the year, is invalid as a regulation of inter-State commerce. Railroad Co. v. Husen, 95

U. S. 465.

Police Power. Certain regulations of railroads by a State have been sustained as a valid exercise of its police power, though they almost constitute a complete regulation of inter-State commerce. A law, therefore, which requires all railroad companies annually to fix their rates of freight and fare, and to post up the same in a conspicuous place, and forbidding charges in excess of the rates thus fixed under a penalty, is valid-and this though it is conceded that the act applies to goods carried in and out of the State as well as to those transported wholly within its borders. The act, the court says, makes no discrimination between local and inter-State rates. "It only requires that the rates shall be fixed, made public and honestly adhered to. In this there is nothing unreasonable or onerous." Railroad Co. v. Fuller, 17 Wall. 560, and see Chicago & Acton R. Co. v. People, 12 Am. & Eng. R. R. Cas. 156. And a statute which requires all railroad companies to draw the cars of other companies at reasonable times for reasonable compensation to be agreed upon by the parties or fixed by railroad commissioners, has been held to be valid. Rae v. Grand Trunk R. Co., 9 Am. & Eng. R. R. Cas. 470. But see Railroad Co. v. Husen, 95 U. S. 465; Hall v. De Cuir, 95 U. S. 485.

Disputed Questions. Whether a State law regulating the amount of freight which can be charged on a railroad-not a police regulation-and which affects inter-State commerce indirectly only—is or is not valid, is yet an undecided question. In McDuffee v. Portland & Rochester R. Co., 52 N. H. 530, an action on the case was brought against a railroad company for a failure to furnish to the plaintiff equal express facilities with others for the transportation of goods from a point within the State of Maine to another point in the State of New Hampshire. It was objected by the company defendant that the plaintiff could have no right of recovery, since the unjust discrimination complained of had been partly in relation to the transportation of goods in another State. The court, however, overruled the objection, intimating that if the courts of Maine had objected to their taking jurisdiction they might have hesitated, but that in the absence of such objection they would grant the relief prayed for. Cf. Messenger v. Pennsylvania R. Co., 36 N. J. L. 407; Chicago & A. R. Co. v. People ex rel., etc., 67 Ill. 11. In People v. Wabash, etc., R. Co., 7 Am. & Eng. R. R. Cas. 628; s. c., 12 Am. & Eng. R. R. Cas. 10, the question was squarely met. In that case an act of the State of Illinois imposed a penalty upon railroad companies in general wherever there was an unjust discrimination in the rates of freight and fare charged. It was held that the act was generally applicable to contracts for the transportation of goods to and from points without the State, but its validity was nevertheless sustained upon the ground that in its application to such contracts it had reference merely to inequalities in the charges made for the distance traversed within the State. "Nothing is shown to the effect that such inequality in charge is all for carriage entirely beyond

the limits of this State; a prima facie is made out of unjust discrimination under our statute occurring within the State."

The current of authority is, however, to a contrary effect. In Hall v. De Cuir, 95 U. S. 485, an act of the State of Louisiana was in question which prohibited discrimination by common carriers of passengers among persons of different race or color. It was admitted that the act would by its terms apply to carriers engaged in transporting passengers from State to State, and on that account it was pronounced void as an interference with inter-State commerce. The idea that the operation of the act can be construed to be limited to that part of the carriage within the State only is scouted. "While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the State, or taken up to be carried without, cannot but affect in a greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. . It was to meet just such a case that the commercial clause in the constitution was adopted." In Carton & Co. v. Illinois Central R. R. Co., 6 Am. & Eng. R. R. Cas. 305, the same reasoning is applied in the case of a statute fixing maximum rates of freight. Such statute must, it was held, be construed to apply to contracts for inter-State commerce and was in so far invalid. The same view was adopted in the principal case and will in all probability be taken by the Supreme Court of the United States. See Louisville & N. R. Co. v. Railroad Commission of Tennessee, supra.

HEISERMAN et al.

v.

BURLINGTON, C. R. AND N. Ry. Co.

(Advance Case, Iowa. April 10, 1884.)

The statute providing that the agent of a railway company shall be guilty of a misdemeanor for exacting and collecting excessive charges, does not take away the common-law right to recover money paid in excess of reasonable compensation. Protest prior to payment need not be

shown.

The two-year statute of limitations applies to the action for the misdemeanor, and not to this action for the recovery of the excess, the period for which is five years.

The contract of a shipment of wheat from West Union, Iowa, to Milwaukee, Wisconsin, providing that the responsibility of the company receiving the grain should cease with the delivery thereof at Postville, Iowa, to a connecting line, is a contract to be wholly performed within this State, and not open to the objection that it relates to commerce between States, and therefore not within the scope of our statutes.

Where the measure of compensation is fixed by statute, no greater sum can be lawfully demanded or received, and all evidence that charges higher than those fixed by statute are reasonable, is immaterial and inadmissible.

APPEAL from Fayette Circuit Court.

Action at law to recover certain sums paid by plaintiff to defendant for the transportation of grain upon defendant's railroad in

excess of reasonable and just charges therefor. The cause was tried by the court without a jury, and judgment was rendered for defendant. Plaintiffs appeal. The facts of the case are fully stated in the opinion.

Stoneman, Rickel & Eastman for appellants.

J. & S. K. Tracy for appellee.

BECK, J.-1. The petition alleges that between the twenty-eighth day of August, 1877, and the fourth day of February, 1878, the plaintiffs delivered to defendant, for transportation upon its railroad from West Union to Postville, Cedar Rapids, and Burlington, all points within this state, certain large quantities of grain to be delivered to connecting lines of railroads for transportation to Milwaukee, in the State of Wisconsin; that no other railroad than defendant's reached West Union, and plaintiffs were therefore compelled to procure transportation upon it; and that defendant charged and exacted large sums in excess of reasonable and just charges for the transportation of the grain, which plaintiffs were compelled to pay. The number of shipments, the quantity of grain in each, the charges paid, and the sums paid in each instance in excess of reasonable charges, and other particulars, are shown by an exhibit to the petition, which need not be more particularly noticed. As defences to the action, defendant alleges-First, that the grain in question was transported by defendant as shipments from West Union to Milwaukee in "through" cars and upon "through" bills of lading, and that the contract for transportation pertained to commerce between the States, and that the statute of this State then in force, prescribing the charges which could be lawfully made for the transportation of property upon railroads, was therefore inapplicable and inoperative as to the transactions in question, being, as to them, in conflict with the constitution of the United States; second, that plaintiffs "knowingly, voluntarily, and willingly" paid the charges now claimed by them to be excessive and unreasonable; and, third, that the action is barred by the statute of limitations.

The defendant alleges in its answer that the charges of which plaintiffs complain were reasonable, and that the contracts for the transportation of the grain were to be performed by the delivery at Milwaukee, in the State of Wisconsin. The allegations of the pleadings in the case need not be further referred to or recited.

2. The evidence, without contradiction, establishes that it was the purpose of plaintiffs to ship the grain in question to Milwaukee or other points out of this State, and that it was delivered in the cars of defendant, or in cars in use upon its road, at West Union. The contract for transportation between the parties, in each instance, was expressed by an instrument in writing, in the following form and language:

"BURLINGTON, CEDAR RAPIDS & NORTHERN RY. Co. "No. West Union Station, Nov. 15, 1877. "Received from Heiserman & Herriman, in apparent good order, by the Burlington, Cedar Rapids & Northern Ry. Co., the following described packages, marked and numbered as per margin, subject to the conditions and regulations of the published tariff of said railway, to be transported over the line of this railway to Postville, and delivered, after payment of freight, in like good order, to C., M. & St. Paul, a company or carrier (if the same are so forwarded beyond the line of this railway), to be carried to the place of destination; it being expressly agreed that the responsibility of this railway shall cease at this railway's depot, at which the same are to be delivered to such carrier; but this railway guarantees that the rate of freight for the transportation of said packages from the place of shipment to shall not exceed charges advanced by this railway:

Marks and Consignee-Chandler, Brown & Co.
Destination-Milwaukee, Wis.

per

and

This contract, in the plainest language, provides for transportation to Postville and no further. While it provides for the delivery of the grain to another railroad company, yet defendant's obligation under the contract was fully performed when this was done, and by the express language of the instrument defendant's responsibility ceased when it delivered the grain to another carrier. The facts established by the evidence, that defendant's compensation was fixed by contract with its connecting line at Postville, and for the whole route taken together the charges were reasonable, and were less than was provided for by the statute of the State then in force, cannot affect or modify the controlling point in the case, namely, that the contract was wholly performed in this State by the delivery of the grain at Postville, and that it provided for transportation between points within the State, and did not extend to carrying the grain without the State. Discussion can add nothing to the conclusiveness of our position, based upon the obvious meaning of the contract.