219 U.S. Argument for Plaintiff in Error. line, and can be prohibited from limiting an existing liability beyond its line; that amendment becomes a part of the contract, and as the goods are voluntarily accepted for interstate shipment, they are therefore subject to interstate regulations of Congress; that contracts of exemption are rendered ineffectual by this statute, and that Congress has the same power to regulate commerce as it has to regulate the relation of master and servant; that it is an incident of the right to make through and joint rates. Smeltzer Case, 158 S. W. Rep. 649; L. & N. R. R. Co. v. Scott, 118 S. W. Rep. 992; Pittsburg Ry. Co. v. Mitchell, 91 N. E. Rep. 735; Galveston v. Piper, 115 S. W. Rep. 108; St. Louis v. Grayson, 115 S. W. Rep. 933; Greenwald v. Weir, 115 N. Y. Supp. 311. Plaintiff in error, however, claims that the act deprives both the initial carrier and the shipper of the right to make a just and reasonable contract which it could do at common law. 1 Hutchinson on Carriers, 3d ed., 153, 233, 405; Cau v. Texas & Pacific Ry. Co., 194 U. S. 424; Michigan Central v. Myrick, 107 U. S. 102. This is contrary to the Fifth Amendment, Allgeyer v. Louisiana, 165 U. S. 589; Lochner v. New York, 198 U. S. 45; Adair v. United States, 208 U. S. 161, 174, as is also the provision that the initial carrier "shall issue a bill of lading" and "shall be liable to the holder of the bill of lading for any damage caused by any connecting carrier. Attorney General v. Old Colony R. R. Co., 22 L. R. A. 112; Norfolk R. R. Co. v. Stuart Co., 63 S. E. Rep. 415; McCann v. Eddy (Mo.), 27 S. W. Rep. 541; Cooley's Const. Lim., 7th ed., 150; Lindsey Co. v. Mullen, 176 U. S. 155, 143; Rodgers v. Camp, 44 Connecticut, 297; Colon v. Lisk, 47 N. E. Rep. (N. Y.) 333; Ohio &c. R. R. Co. v. Lacey, 78 Illinois, 55; Knoxville R. R. Co. v. McMillan, 65 L. R. A. 296; Woodward v. Vermont Central R. R. Co., 62 N. E. Rep. 1051; 180 Massachusetts, 599; 217 U. S. 196, 205; Dirkin v. Kingston Coal Co., 171 Pa. St. 199, 203; S. C., 50 Am. St. Rep. Argument for Plaintiff in Error. 219 U. S. 805; Williams v. Thaylor Co., 40 L. R. A. 812 (W. Va.); Missouri R. R. Co. v. Nebraska, 164 U. S. 403; Same v. Same, 217 U. S. 196. Giving the initial carrier its day in court does not save the statute, as no provision for hearing will support a statute that takes the property of A to pay the debt of B. Chicago &c. R. R. Co. v. Chicago, 166 U. S. 234; Long Island Water Co. v. Brooklyn, 166 U. S. 695; Taylor v. Porter, 4 Hill (N. Y.), 140. The act does not even give the connecting carrier its day in court. It is bound by the judgment without notice, and if it had notice, the connecting carrier is not estopped from showing that it was free from negligence. Robins v. Chicago, 2 Black, 418; City of Boston v. Worthington, 10 Gray, 496; Lincoln v. First Nat. Bank, 60 L. R. A. 924. The act would make a connecting carrier in Canada liable on shipment from New York to Detroit, though manifestly the Canadian company is not subject to the provisions of the Hepburn bill. Even if the judgment against the initial carrier does bind the connecting carrier, that could not satisfy the requirement of the Constitution, for a subsequent and contingent right to an action at law against corporations or individuals of undefined responsibility is not the compensation which the Constitution requires. Bloodgood v. Mohawk, 31 Am. Dec. 368; Haverhill v. Commissioners, 103 Massachusetts, 120; Stockyard Co. v. L. & N. R. R. Co., 192 U. S. 568; Cherokee Nation v. Sou. Pac. R. R. Co., 135 U.S.661. The statute is not a valid exercise of the power to regulate commerce. Citizens have the right to engage in interstate commerce. Crutcher v. Kentucky, 141 U. S. 57. They are not obliged to yield to an unconstitutional statute as condition precedent to so doing. Nor can Congress treat the right as a privilege not to be availed of except 219 U.S. Argument for Plaintiff in Error. upon such conditions it may prescribe, if the conditions are otherwise beyond the power of Congress. Employers' Liability Case, 207 U. S. 502; Adair Case, 208 U. S. 180. The grant to the National Government under the commerce clause is subject to the limitations of the Fifth Amendment. Monongahela Bridge Co. v. United States, 148 U. S. 345. The power to regulate commerce includes the power to facilitate and expedite transportation of goods, but does not authorize the prohibition of the reasonable and just contracts under which commerce has been developed, and which do not, and are not intended to, impede commerce. Railroad Co. v. Richmond, 19 Wall. 589, 590; Central Ry. Co. v. Murphy, 196 U. S. 204, 205; Lottery Case, 188 U. S. 362. The statute contains provisions which are not valid regulations of interstate commerce. The initial carrier cannot be made liable on the theory that Congress has power to make through and joint rates. For the making of through and joint rates is essentially contractual. Star Co. v. Atchison R. R. Co., 14 I. C. C. 354; Kentucky Bridge Co. v. L. & N. R. R. Co., 37 Fed. Rep. 630; and the courts have never decided to what extent the carrier can be required to make through and joint rates. Sou. Pac. R. R. Co. v. I. C. C., 200 U. S. 553; Atchison Ry. Co. v. Denver &c. Ry. Co., 110 U. S. 680; Cole v. Central, 86 Georgia, 255; Burlington Ry. Co. v. Dcy, 82 Iowa, 312; S. C., 31 Am. St. Rep. 490, 499; Jacobson v. Wisconsin, 70 Am. St. Rep. 364; 179 U. S. 292; Central Stockyards v. L. & N. R. R. Co., 192 U. S. 571; Chicago &c. Ry. Co. v. Osborne, 52 Fed. Rep. 915; Int. Com. Com. v. Stickney, 215 U. S. 98, 106; Penn Ref. Co. v. Western &c. R. R. Co., 208 U. S. 208, 222. Limited liability acts of Congress, whether passed in pursuance of the admiralty jurisdiction or the commerce clause, or both, were primarily intended to prevent the making of unreasonable stipulations in bills of lading Argument for Plaintiff in Error. 219 U.S. (The Delaware, 161 U. S. 472), and at most only related to the liability of owners for their own negligence, and did not make them or the vessel liable for injuries occasioned by the negligence of another vessel by which the goods might be forwarded. The initial carrier is not liable on the ground stated in the Smeltzer Case, 158 Fed. Rep. 661, that the act became a part of the contract, for if the act is void, it imposes no duties, and is as though it had never been passed. Norton v. Shelby County, 118 U. S. 426; Cleveland v. Clemmons, 59 L. R. A. 775; People ex rel. Rodgers v. Koler, 166 N. Y. 1; S. C., 52 L. R. A. 814.. Nor has the company voluntarily made itself liable. Lake Shore Ry. Co. v. Smith, 173 U. S. 697. The contract under which the goods were received is an entirety. Part of it cannot be laid hold of to acquire interstate jurisdiction, and the balance ignored, whereby interstate relation is stipulated to cease in law, when it ceases in fact by delivery to the next carrier. McCarn v. International Co., 19 S. W. Rep. 549; Hartley v. St. Louis Co., 89 N. W. Rep. 88; Railroad Co. v. Richmond, 19 Wall. 589; Michigan Central R. R. Co. v. Myrick, 107 U. S. 110. The statute imposes mandatory requirements instead of permissive provisions at common law, and the Missouri statute in part copied by the Carmack amendment was sustained because the provisions were not mandatory. Missouri Ry. Co. v. McCann, 174 U. S. 580. The provision as to attorney's fees under § 8, also takes property without due process of law. Gulf &c. R. R. Co. v. Ellis, 165 U. S. 150, 160. Mr. John Maynard Harlan and Mr. Lewis W. McCandless, by leave of the court, filed a brief attacking the constitutionality of certain portions of § 20 of the act to regulate commerce. 219 U. S. Argument for Defendant in Error. Mr. R. J. Southall, with whom Mr. Charles Akerman and Mr. Alexander Akerman were on the brief, for defendant in error, submitted: The mischief sought to be remedied by the statute was the trouble, delay, and expense to the shipper in collecting claims for loss or damage by the carriers. Cent. of Ga. Ry. Co. v. Murphey, 196 U. S. 194. The constitution gives Congress full power to regulate interstate commerce. Gibbons v. Ogden, 9 Wheat. 196; Howard v. Ill. Cent. R. R. Co., 207 U. S. 463; Smeltzer v. St. Louis & S. F. R. R. Co., 158 Fed. Rep. 649; Lottery Case, 188 U. S. 321. Section 20 of the Hepburn bill (Carmack amendment) was only intended to compel the carriers to return to the common-law rule which made the initial carriers liable, in the absence of contract limiting the carrier to liability for loss occurring on its own line, and to prohibit such contracts as being contrary to the declared public policy of the United States. A., T. & S. F. R. R. Co. v. D. & N. O. R. R. Co., 110 U. S. 688; Southern Pacific Co. v. Crenshaw, 5 Ga. App. 675; S. C., 63 S. E. Rep. 865; Smeltzer v. St. Louis & S. F. R. R. Co., 158 Fed. Rep. 649. The liberty of contract guaranteed by the Constitution is subject to such reasonable restraints as may be imposed by Congress for the public good and general welfare. Adair v. United States, 208 U. S. 161; Uniied States v. Traffic Association, 171 U. S. 571; United States v. Trans-Missouri Assn., 166 U. S. 290; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Northern Sccurities Co. v. United States, 193 U. S. 197; Swift & Co. v. United States, 196 U. S. 375. Railroad companies are subject to legislative control for the protection of the public. N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 556; Nashville, C. & St. L. R. R. Co. v. Alabama, 128 U. S. 96; Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174; Minneapolis & St. L. R. R. Co. v. BeckVOL. CCXIX-13 · |