mandamus to compel the performance of the duties of a carrier. Section 23 of the Interstate Commerce Act, infra.

Such an injunction may be issued as well upon a proper showing on a preliminary as on a final hearing. It was said by Taft, J.,1 that the office of a preliminary injunction is to perserve the status que until upon final hearing the court may grant full relief, and generally this can be accomplished by an injunction prohibitory in form. It may sometimes happen, however, that the status quo is not a condition of rest, but of action, and the condition of rest is exactly what will inflict an irreparable injury upon the complainant. In such cases therefore it is only a mandatory injunction, compelling the traffic to flow as it is wont to flow, which will protect the complainant from injury.

It was said by the supreme court that it is one of the most useful functions of a court of equity that its methods of procedure are capable of being made such as to accomodate themselves to the development of the interests of the public in the progress of trade and traffic by new methods of intercourse and transportation, and it may be added, in securing the uninterrupted movement of commerce."

1 Toledo, A. A., etc., R. Co. Case, supra.

2 Joy v. St. Louis, 138 U. S. 1, 1.

c. p. 50, 34 L. Ed. 859 (1891).

In So. Cal. Co. v. Rutherford, supra, the court granted an injunction to a railroad company against its employes, compelling

them to perform all their regular and accustomed duties as long as they remain in the employment of the complainant company. This was in a case where the employes, while continuing in the service, had boycotted the Pullman Car Co.

CHAPTER VII.

FEDERAL CONTROL OF STATE RAILROAD REGULATION.

§ 106. State regulation of railroads through state commissions. 107. Assessment of expense of state regulation upon railroads. 108. State regulation not dependent upon state incorporation. 109. State cannot regulate any part of interstate rates.

110. Competitive effect of intrastate rates upon interstate rates. 111. The fourteenth amendment.

112. Federal review of state regulation of railroads.

113. The federal jurisdiction must be invoked on substantial grounds. 114. Jurisdiction of the federal courts not limited by state legislation. 115. Injunctions against state officials not violative of the eleventh

amendment.

116. The regulating orders of state commissions legislative, not judicial.

117. Procedure in federal review of state legislation.

118. Temporary injunctions in federal control of state legislation. 119. Temporary injunction under act of 1910.

120. Reasonableness and confiscation in regulation of rates.

121. State rates determined without reference to interstate traffic.

122. The supreme court on state regulation.

123. Schedules of rates and special rates.

124. The valuation of railroad property in state regulation.

125. The apportionment of railroad property in state regulation.

126. Confiscation in state regulation; how proved.

127. Rate of profit necessary to avoid charge of confiscation.

128. Protection of the carrier against discriminating state regulation. 129. The state power of regulation not limited to rates. 130. The state anti-trust laws and the fourteenth amendment. 131. Classification in state railroad legislation.

§ 106 (91). State regulation of railroads through state commissions. The complexity of our dual form of government is nowhere more forcibly illustrated than in the administration of the railway systems of the country under the state commissions as to their state traffic, and under the Interstate Commerce Commission as to their interstate traffic. The power of the states to regulate the rates of railroads and other quasi public business had been definitely established in the Granger cases, as already seen, prior to the adoption of the Interstate Commerce Act. This power of the states could be exercised either directly by the legislature fixing the rates, or could be delegated to a commission act

ing for the state. Commissions had been established in many of the states prior to 1887, some with advisory powers and others with powers to fix maximum rates.1

A railroad forming a continuous line in two or more states, and owned and managed by a corporation, whose corporate powers are derived from the legislatures of each state in which the road is situated,2 is as to the domestic traffic of each state a corporation of that state, subject to the laws of the state not in conflict with the constitution of the United States, and an authorization of a commission by a state to fix a schedule of rates for a railroad is not an unconstitutional delegation of legislative power. Justice Brewer said in the case first cited that the line of demarcation between legislative and administrative functions was not easily discernable and that the reasonableness of a rate was constantly charging with changing circumstances, and therefore was peculiarly a subject for an administrative board to determine.

§ 107. Assessment of expense of state regulation upon railroads. The entire expenses of a state railroad commission, including the expenses and salaries of the railroad commissioners, may be lawfully assessed upon railroads operating within a state according to their gross income proportionate to the number of miles of their roads in the state. This tax was claimed to

1 See review of state commission statuten n Maximum Rate Case, 167 U. . 1. c. 495 (1897), 42 L. Ed. 251.

2 Railroa Commission Cases, 116 U. S. 707 (1886), 29 L. Ed. 636.

Chicam & N. W. R. Co. v. Dey, 35 Fed. 66 (1888); also Railroad Commission Cases, supra; Regan v. Farmers Loan & Trust Co., supra. In the Maximum Rate Case, 167 U. S. supra, the court, in considering the question whether in the original Interstate Commerce Act, before the amendment of 1906, power was delegated to the Interstate Commerce CommisBion to fix rates, concluded that

congress did not attempt to exercise the power, but assumed the existence of the power, saying, "There were three obvious and dissimilar courses open for consideration. Congress might itself prescribe the rates; or it might commit to some subordinate tribunal this duty, or it might leave with the companies the right to fix rates, subject to regulations and restrictions as well as to that rule, which is as old as the exist ence of common carriers, to-wit: that rates must be reasonable."

4 See Charlotte C. & A. R. R. Co. v. Gibbs, 142 U. S. 386, 35 L. Ed. page 1051 (1892).

be an unlawful discrimination imposing a new burden and therefore a denial of equal protection of the laws, as it was beyond that levied upon other corporations, and was in addition to the general property tax levied upon the property of the railroads in like manner as upon similar property of individuals in proportion to value. The court said that the services of the commission were for the benefit of the railroad corporations as well as of the public. It was therefore reasonable that the expenses should be so apportioned, and in this there was no violation of the state constitution providing for uniformity in taxation or of the guarantees of the federal constitution for due process of law and the equal protection of the law.

§ 108 (92). State regulation not dependent upon state incorporation. This power of regulation under state commissions, as that of the Interstate Commerce Commission under the Interstate Commerce Act, is dependent upon the character of the traffic, whether intrastate or interstate, and not upon the state or federal incorporation of the carrier. The same railroad is subject as to these two classes of traffic to the state and federal authority respectively. Thus the power of the Interstate Commerce Commission extends to railroads organized under state and federal authority as well as to corporations organized under the laws of Canada and operating in the United States. In the Northern Securities case a corporation organized under state authority, for the purpose of holding the stock of competing interstate railroads, was adjudged an unlawful combination under the Anti-Trust Act of Congress.1

On the other hand, a railroad incorporated by act of congress is subject to the control of the state in all matters of taxation rates on domestic traffic and to all reasonable police regulations in the absence of anything in the act indicating an intention on the part of congress to remove the corporation from such state control. The silence of congress in this respect, said the supreme court in the Texas rate case, is satisfactory assurance that so far as the corporation should transact business wholly within the state congress intended that it should be subjected to the ordinary control exercised by the state over such business.2 1 Supra, § 85.

2 Reagan v. Mercantile Trust

Company, supra; Smythe v. Ames, 169 U. S. 466, 42 L. Ed. 819 (1898).

The subjection of the corporation to the law of the state therefore is not based on the acceptance by the railroad company of state regulation, but results from the failure of congress to express any intention in the act of incorporation that it should be exempt from state control.

This state power of regulation of domestic traffic must be distinguished from the concurrent power exercised by the state in the absence of legislation by congress in that class of cases (see supra, Chapter II) where the authority of the state is limited not by the existence, but by the exercise of the power of congress. In the class of cases now under consideration the power of the state is independent of congressional action.

1

§ 109 (93). State cannot regulate any part of interstate rates. It was held in the leading case of the Wabash Railway Company that a state commission had no regulating power over a through interstate rate, that is, over even that part of it which was within the state. The limitations of the state authority were further illustrated in the two Kentucky cases decided in 1901. In the first of these, the court affirmed the Kentucky court in sustaining a conviction of the railroad company for violation of the long and short haul clause of the Kentucky statute in a rate on an intrastate shipment. The court below had excluded evidence that the rates were reasonable per se, and held that it was immaterial that the less charge for the longer haul was induced by competition, on the ground that the state had authorized the state commission to give relief on application. In the other case at the same term, the supreme court held the Kentucky statute

As the court based its opinion upon the construction of the congressional act of incorporation, the question of the power of congress to limit and control, the police power of the state over the property of federally incorporated interstate carriers, located within the state, was not discussed. The Reagan opinion cited the Pacific Railroad tax case, Railroad Co. v. Pemiston, 18 Wallace, 5 (1873), 21 L. Ed. 787, wherein it was held that the taxing power of the

state as one of its attributes of sovereignty extended to the prop‐ erty (though not to the federal franchises) of the Union Pac. Railroad incorporated under act of congress.

1 Supra, § 37.

2 L. & N. R. Co. v. Kentucky, 183 U. S. (1902), 46 L. Ed. 298, reversing 103 Fed. Rep. 216.

8 L. & N. R. Co. v. Eubank, 184 U. S. 27 (1902), 46 L. Ed. 416, (Justices Brewer and Gray dis senting).