and among the several states." The question is one of great importance, and, in some of its aspects, not free from difficulty. It has been much discussed in the courts of the country, and especially in the supreme court of the United States.

The following propositions may now be laid down as settled, at least so far as the federal courts are concerned:

(1) The transportation of merchandise from place to place by railroad is commerce. (2) The transportation of merchandise from a place in one state to a place in another is "commerce among the states." (3) To fix or limit the charges for such transportation is to regulate commerce. (4) A statute fixing or limiting such charges for transportation from places in one state to places in other states, is a regulation of commerce among the states. (5) The power to regulate such commerce is vested by the constitution in congress. (6) This power of congress is exclusive, at least in all cases where the subjects over which the power is exercised are in their nature national, or admit of one uniform system or plan of regulation. (7) The state cannot adopt any regulation which does or may operate injuriously upon the commerce of other states.

These general propositions are abundantly sustained by the following, among other, authorities: Crandall v. Nevada, 6 Wall. 35; Passenger Cases, 7 How. 283; Gibbon v. Ogden, 9 Wheat. 1; Case of State Freight Tax, 15 Wall. 232; Welton v. Missouri, 91 U. S. 279; Hall v. De Cuir, 95 U. S. 497; Railroad Co. v. Husen, Id. 469; Pensacola Tel. Co. v. Western, etc., Tel. Co. 96 U. S. 9; Carton v. Ill. Cent. R. Co. (Sup. Ct. Iowa) 13 N. W. Rep. 67.

It is insisted by plaintiff's counsel, in his very able and exhaustive argument in this case, that, conceding the soundness of these propositions, the statute in question may be upheld upon the ground that in enacting it the state exercised a power which is vested concurrently in the states and the general government. That certain powers may be exercised by the states in the way of regulating interstate commerce, where no act of congress is interfered with, may, for the purposes of this case, well be admitted.

Assuming such to be law, the questions remain:

(1) Whether the act in question, if applied to through shipments, or freight upon lines extending into or through several states, must not be held to relate to a subject which is in its nature national, or which admits of one uniform system or plan of regulation. (2) Whether, if the power of the state to pass such an act be conceded, it does not necessarily include the power to discriminate against the commerce of other states.

If either of these questions is answered affirmatively, then the statute, in so far as it relates to through shipments over interstate lines, is in violation of the federal constitution. I am of the opinion. that both questions must be so answered.

It seems very obvious that the regulation of transportation of merchandise over a line extending, it may be, from the Atlantic to the Pacific ocean, is a subject which is in its nature national. It is so because it necessarily concerns the people of the whole country, and is beyond the legislative power of any single state. It is also appar

ent that such transportation not only admits of, but requires, a uniform system or plan of regulation. I do not understand the plaintiff's counsel as denying these propositions; but he insists that this state may regulate charges upon so much of the route as lies within its own territory. In other words, the contention of counsel is that each state over whose territory a line of interstate railroad passes, may fix or limit the charges to be made for the carriage of a cargo upon that part of the route which lies within its own jurisdiction.

The consideration of this proposition involves a determination of the second question last above stated, viz., whether the statute in question, construed as authorizing the regulation of charges within this state, may not affect charges made for carriage in other states. To state the question in another form, it is this: Can each of the states through which a cargo must pass in going, for example, from Des Moines to New York city, fix the proportionate charge which shall be made by the carrier for the distance within its own territory? Such a line would pass through portions of the states of Iowa, Illinois, Indiana, Ohio, Pennsylvania, and New York. How can Iowa fix the amount to be paid for the carriage from Des Moines to the state line without indirectly affecting the rates to be charged in the other states? It must be borne in mind that the power to regulate includes not only the power to reduce, but the power to increase charges. If one of the states upon such a line can fix the charges for carriage within its own territory, what is to prevent it from authorizing its own carriers to demand and receive an undue and unreasonable proportion of the gross amount? If the proposition contended for be admitted, what is there to prevent the three states through which the cargo must first pass on its way to New York, from exacting more than one-half of the charge for the entire route? or, to state the same question in another way, why may not the five states through which the cargo would pass before reaching the boundary of New York, exact in the aggregate the whole of a reasonable charge for the entire route, leaving nothing for the carrier within the state of New York? And since no state law can have any extraterritorial force, is it not clear that the attempt to enforce the statutes of each of the several states, in so far as the carriage within such state is concerned, would lead to conflicts and disputes which no state authority would be competent to adjust and determine.

These considerations, I think, lead inevitably to the conclusion, not only that such commerce is the subject only of national, control and regulation, but that any attempt to devolve upon a single state the power to regulate it in part would necessarily give to such state the right to discriminate against other states of the Union.

It is well known that one of the chief reasons which caused the constitutional convention to insert the commercial clause in the constitution of the United States, was the belief that if the power to regulate commerce among the states was not taken exclusively into the

hands of the national government, rivalries and jealousies would arise among the states similar to those which had existed under the old confederation, which would lead practically to the destruction of interstate 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 interstate commerce, is in violation of the constitution of the United States. In this view I am supported by the recent decision of the supreme ccurt 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.

See The Head-money Cases, ante, 135, and note, 142; Memphis & L. R. R. Co. v. Nolan, 14 FED. REP. 532, and note, 534.

GOULD v. CHICAGO, M. & ST. P. R. Co.

(Circuit Court, D. Minnesota. June Terni, 1883.)

EJECTION OF PASSENGER FROM TRAIN.

A person on a train refusing to produce a ticket or pay his fare, subsequently changing his mind, and tendering full fare, would be entitled to continue his journey on the train. But if the refusal be accompanied by violent and abusive conduct, whereby the conductor is compelled to stop the train for the pur pose of putting him off, he may forfeit such right to remain on the train, and the conductor, using proper discretion, may eject such person, notwithstanding tender of full fare is then made.

At Law.

The plaintiff, Gould, was ejected from the cars of defendant's railway at Union Park, a regular passenger station between Minneapolis and St. Paul. He claimed that he purchased a ticket and boarded the train at the passenger depot in Minneapolis, and, on request, surrendered his ticket to the conductor, who subsequently demanded his fare, and on refusal of payment put him off.

The testimony was contradictory upon all the material facts. The plaintiff testified that when the conductor stopped the train at Union Park station and commenced to put him off, he offered the price of a ticket. The evidence on the part of the defendant was to the effect that the plaintiff boarded the train after it left Minneapolis, and when requested by the conductor to give up his ticket, declared that he had already done so, and upon a denial thereof by the conductor, and a further request for his ticket or his fare, refused to deliver up either, became abusive and violent, and that thereupon the conductor put him off the train.

C. K. Davis and J. N. Granger, for plaintiff.
Bigelow, Flandrau & Squires, for defendant.

NELSON, J., after a statement of the matters at issue, and calling the attention of the jury to the law defining the rights of the public and the duties of railroad companies, inter alia, charged the jury that unless a person unlawfully on the train had, by his improper conduct, compelled the conductor to stop it for the purpose of putting him off, and persisted in his refusal to pay fare from the place where he boarded the train, and became violent and abusive, until the conductor had to resort to extreme measures,-as, for instance, by force pull him from his seat, he might change his mind, and if full fare was tendered the conductor was bound to receive it; and if he put him off after such tender the railway company is liable.

The jury found a verdict for the defendant.

See Hall v. Memphis & C. R. Co. 15 FED. REP. 57, and note, 69.

BROCKETT V. NEW JERSEY STEAM-BOAT Co.

(Circuit Court, N. D. New York. 1883.)

1. NEGLIGENCE-INJURY TO PASSENGER-QUESTION FOR JURY.

Where there is, upon the main issue, a disputed question of fact, it cannot be properly withdrawn from the consideration of the jury, and it would be error for the court in such case to direct a verdict.

2. SAME-EVIDENCE-CHARACTER OF WITNESS.

Questions affecting the character of a witness are not incompetent, and may be properly allowed on cross-examination.

In an action arising out of an altercation on ship-board, testimony as to what was said by any officer of the vessel during the altercation held admissible as part of the res gesta.

4. SAME-EVIDENCE-REFUSAL TO STRIKE OUT, WHEN NOT ERROR.

It is a well-settled rule that a refusal by the court to strike out evidence which was not objected to when offered is not error.

This action was tried at the last January circuit, and resulted in a verdict of $5,500 for the plaintiff. The plaintiff was a deck passen. 'Affirmed. See 7 Sup. Ct. Rep. 1039.

ger on one of the defendant's boats from Albany to New York. He was asleep on the freight, abaft the shaft, at a point where the rules did not permit him to be. He was pulled from this position by the company's watchman, and in falling received very serious injuries. The question submitted to the jury was whether more force than was necessary was used in removing him. The plaintiff and the watchman, Thiel, were the principal witnesses. Their versions of the main transaction were in direct conflict,-the one establishing negligence on the part of the defendant, the other on the part of the plaintiff. The defendant now moves for a new trial. It is contended that there was error in admitting, on cross-examination, evidence of the watchman's quarrelsome disposition; in refusing to strike out, on motion, testimony which was given without objection; and in refusing to direct a verdict for the defendant.

W. P. Prentice, for the motion.

E. E. Sheldon, opposed.

COXE, J. For reasons stated at the argument the court would not have been justified in directing a verdict for the defendant. There was, upon the main issue, a disputed question of fact, which could not properly have been withdrawn from the consideration of the jury. The questions objected to, affecting the character of the witness. Thiel, were, I think, proper on cross-examination. Real v. People, 42 N. Y. 270. Criticism is made that the declarations of the assistant mate were incompetent. That part of the testimony, however, to which the attention of the court is particularly directed as being prejudicial to the defendant, was admitted before any objection or exception was taken. But in any view of the case I am of the opinion that what was said by an officer of the vessel, during the altercation, was admissible as part of the res gesta. Curtis v. Railroad, 49 Barb. 148.

Two of the exceptions argued relate to the refusal of the court to strike out certain evidence which was not objected to when offered. Without discussing the question whether the evidence should have been received, had a timely objection been interposed, it is sufficient to say that the rule is well settled that a refusal to strike out, in such circumstances, is not error. Gawtry v. Doane, 51 N. Y. 90; Levin v. Russell, 42 N. Y. 256; Platner v. Platner, 78 N. Y. 90. I have examined the other exceptions referred to in defendant's brief, but think none of them well taken.

The motion for a new trial is denied.