[225 N. Y.] Opinion, per CARDOZO, J. [Jan., tariff (154 U. S. at p. 222). These cases are taken as typical of many others. The principle back of them has been often stated. "As to those subjects which require a general system or uniformity of regulation the power of Congress is exclusive" (Minn. Rate Cases, supra, at p. 399). As to "other matters, admitting of diversity of treatment according to the special requirements of local conditions," there is a reserved power in the states, subject, in its exercise, to the overriding power of the nation. "Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation," is not a denial, but a concession of the power of the vicinage (County of Mobile v. Kimball, 102 U. S. 691, 699; Transp. Co. v. Parkersburg, 107 U. S. 691, 703). Familiar illustrations are regulations of the fees of pilots (Cooley v. Board of Wardens, 12 How. [U. S.] 299, 319), charges for the use of wharves (Transp. Co. v. Parkersburg, supra; Minn. Rate Cases, supra, at p. 405), and tolls for the use of natural waterways, which have been artificially improved (Sands v. Manistee River Imp. Co., 123 U. S. 288). Dicta may, indeed, be quoted where the court, in sustaining police regulations, has observed, as if by way of contrast, that they did not involve the regulation of rates (Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133; W. U. Tel. Co. v. Coml. Milling Co., supra, p. 418). But in every case the rates in view were rates of transportation. That is a field where regulation, if there is to be any, must be uniform. A central authority must reconcile the clashing action of localities. What is within the police power of one state is equally in such circumstances within the police power of its neighbor. One cannot freely exercise its will without affecting at the same time the like freedom of another. In the phrase of Hobbes, there is need of a common power to keep them in awe." 1919.] Opinion, per CARDOZO, J. [225 N. Y.] We deal here with a different situation. There is here no regulation of transportation (Mfrs.' Light & Heat Co. v. Ott, 215 Fed. Rep. 940, 944). There is no regulation of a duty owing equally to two states. There is regulation of a duty owing to one of them alone. The seller of most things has the right to sell at whatever price he will. This petitioner has lost that right by the acceptance of a public franchise in consideration of a public service (Gibbs v. Baltimore Gas Co., supra; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Shepard v. Milwaukee Gas Co., 6 Wis. 639). The service is due to the state from which the privilege proceeds. Until Congress shall intervene, it is, therefore, the police power of New York that controls the sale of gas to consumers in New York. There is no division of the power between New York and Pennsylvania. There is no more a division of power than when we regulate our fees for wharfage or our tolls for artificial waterways. In these matters, protection of our own inhabitants is a duty that is ours and no one else's. The power may be displaced; but until displaced, it is undivided. Here, then, is the decisive distinction between the regulation of the price of gas and that of rates of transportation. There is no room for conflict of authority, for clashing regulations. The statute has a sphere of operation that is not national, but local (Cooley v. Bd. of Port Wardens, supra). It is idle to speak of the need of uniformity of action by states of equal competence when there is only one state whose action is involved. But even within the state, diversity rather than uniformity is exacted by the conditions of the business. Rates adequate in one city are inadequate in another. The local needs are best known to local agencies of government. No central authority, acting for the nation as a whole, will readily discern them. The case comes, then, to this: We have a sale of a [225 N. Y.] Statement of case. [Jan., single commodity. We have a pre-existing duty to sell it at fair rates. We have a transaction where conflicting regulations by the states are impossible, for the public duties regulated are fulfilled in one state only. We have a statute which declares a duty that would exist without it, and establishes a new agency of government to insure obedience. The silence of Congress cannot be interpreted as a declaration that public service corporations, serving the needs of the locality, may charge anything they please (County of Mobile v. Kimball, supra; Transportation Co. v. Parkersburg, supra; Covingtom Bridge Case, supra, p. 222). The local regulation stands until Congress occupies the field. The order should be affirmed with costs. HISCOCK, Ch. J., CHASE, HOGAN, POUND, MCLAUGHLIN and ANDREWs, JJ., concur. Order affirmed. ALFRED F. GEORGI, Respondent, v. THE TEXAS COMPANY, Appellant. Election of remedies - principal and agent sale of goods attempt to recover to an agent of an undisclosed principal value of goods from agent after seller has knowledge of all the facts of the agency. The question of election implies full knowledge of the facts necessary to enable a party to make an intelligent and deliberate choice. When a person sells goods to another who is in fact an agent of an undisclosed principal, he may upon discovery of the principal resort to him or to the agent, at his election, but if, after having come to a knowledge of all the facts, he elects to hold the agent, he cannot afterwards resort to the principal. When such creditor after all the facts have become known to him obtains a judgment against the agent, it is an election to resort to the agent to whom the credit was originally given and is a bar to an action against the principal. Georgi v. Texas Co., 173 App. Div. 809, reversed. (Argued January 14, 1919; decided January 28, 1919.) 1919.] Points of counsel. [225 N. Y.] APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. I. R. Oeland, H. E. J. MacDermott and James L. Nesbitt for appellant. Plaintiff's assignor, knowing the name and identity of the principal, took judgment against the agent. The plaintiff cannot now have judgment. (Drennan v. Boice, 19 Misc. Rep. 641; Tuthill v. Wilson, 90 N. Y. 423; Kingsly v. Davis, 104 Mass. 178; Ideal Concrete Co. v. Bank, 159 App. Div. 344; Weil v. Raymond, 142 Mass. 206; Matlage v. Poole, 15 Hun, 556; Barrell v. Newby, 127 Fed. Rep. 656; Brennin v. Thompson, 33 Ont. L. R. 465; Ranger v. Thallman, 65 App. Div. 9.) Nathan D. Stern for respondent. The direction of a verdict in plaintiff's favor by the trial court was not error. It appears without contradiction, first, that plaintiff's assignor did not have full knowledge of all the facts when it entered into judgment against the agent and proved its claim in bankruptcy; second, that defendant misstated the situation to plaintiff's assignor when called upon to state the facts. Under such circumstances the entry of the judgment and proof of the claim in bankruptcy was not an election which released defendant. (Meeker v. Claghorn, 44 N. Y. 349; Coleman v. First Nat. Bank, 53 N. Y. 388; Cobb v. Knapp, 71 N. Y. 348; Sweeney v. Douglas Copper Co., 149 App. Div. 568; Remmel v. Townsend, 83 Hun, 353; Brown v. Reiman, 48 App. Div. 295; Knickerbocker Biscuit Co. v. Devoe, 81 Misc. Rep. 1; Merrill v. Pacific Transfer Co., 131 [225 N. Y.] Opinion, per CRANE, J. [Jan., Cal. 582; Iron S. M. Co. v. Reynolds, 124 U. S. 374; Cleveland Woolen Mills v. Siebert, 81 Ala. 140; Atlas S. S. Co. v. Columbia Land Co., 102 Fed. Rep. 358.) CRANE, J. This appeal touches upon the rule of election as between principal and agent for the recovery of goods sold. There is no misunderstanding about the law which is well settled by many authorities, but the difficulty has been its application to the facts of this case. Where goods have been sold to an agent whose agency and principal were not known and the claim has been prosecuted to a judgment, a recovery may nevertheless be had against the actual principal when the facts are disclosed. If, however, the creditor proceeds against the agent after full knowledge of the agency and recovers a judgment, an action may not thereafter be maintained against the principal. The election to recover from the agent is then a bar to other proceedings. The question of election implies full knowledge of the facts necessary to enable a party to make an intelligent and deliberate choice. (Lindquist v. Dickson, 98 Minn. 369.) Knowledge of the right to recover from the principal is essential before suit against the agent may be regarded as an election to look to the latter, alone, for payment. Without knowing who the principal is or the fact of agency, an intelligent election is impossible. (Steele Smith Grocery Company v. Potthast, 109 Iowa, 413.) When a person contracts with another who is in fact an agent of an undisclosed principal, he may upon discovery of the principal resort to him or to the agent with whom he dealt, at his election, but if after having come to a knowledge of all the facts he elects to hold the agent, he cannot afterwards resort to the principal. When a creditor after all the facts have become known to him obtains a judgment against the agent, this is an election to resort to the agent to whom the credit |