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The Green Bag
the moment the railroad crosses the state line into another state the sovereignty with respect to governmental regulation instantly shitts to the government of the United States, which has the full power of regulation of all nations, whether interstate or intra-state. "In other words, in the one case the carrier is a functionary of the state government . . . in the other case the carrier is a functionary of the government of the United States and, as such, subject potentially to exclusive regulation by the government of the United States. "Up to this time, except in the case of the original Employers' Liability Act, Congress has enacted no legislation regulating inter state carriers with respect to their intra-state business. The Interstate Commerce Act in its terms excluded from its operation the business of interstate carriers done wholly within a state, and, likewise, all other legis lation of Congress relating to this subject, except in the instance above referred to, expressly related only to the interstate busi ness of interstate carriers. Under these con ditions the Supreme Court has held that the states, respectively, have the power to regu late interstate carriers as to their intra-state business, not at all because Congress has not power to regulate them in that regard, but solely because Congress has not undertaken to do so. While the federal power lies dor mant, the states have the power, but this power is instantly suspended the moment Congress acts. "I apprehend that there may be interstate common carriers who are not in the sense I have pointed out public agents, carriers in whose interest government may not constitu tionally exercise any of its prime functions, such as the power of eminent domain, or the taxing power. The law of common carriers had its origin at a time when railroads were unknown and undreamt of. Such carriers, although in some measure subject to govern mental regulation, may not be public agents in the sense in which the railroad company is a public agent. They may not be a part of the government, as are railroad companies. "The act of Congress of June 11, 1906, commonly called the Employers' Liability Act, was not confined in its operation to railroad companies, but, broadly, to all com mon carriers engaged in interstate commerce. Thus, the act embraced all persons and cor
porations engaged in interstate commerce, howsoever the business may be carried on. Its provisions seemed to apply not only to employees engaged in the interstate business of the carrier, but also to employees engaged strictly in the intra-state business of the carrier: that is to say, to all employees of the carrier, indiscriminately." In the Employers' Liability Cases (1908), 207 U. S. 463, the Supreme Court held this law unconstitutional by a five to four de cision. "This case can hardly be said to be an authority against the proposition that Con gress has power to regulate interstate rail road companies, in every respect in which they may be regulated by government, both with regard to their interstate and intra state business. It is true that Mr. Justice Moody made the following statement in the dissenting opinion delivered by him :— "'At the threshold I may say that I agree that the Congress has not the power directly to regulate the purely internal commerce of the states, and that I understand that to be the opinion of every member of the Court.' "This must be regarded as a broad state ment of a general rule applicable to com merce carried on by private agencies. It cannot be regarded as denying to the govern ment of the United States the exclusive power to regulate its own governmental functionaries." Constitutional Law (Right to Jury). "The Constitutional Right to a Trial by a Jury of the Vicinage," by Henry G. Connor. Univer sity of Pennsylvania Law Review and Ameri can Law Register (vol. lxvii, p. 197). Largely a historical article showing the jealousy and care with which the original states insisted on safeguarding the right to a jury as understood in the English common law. Contracts. See Constitutional Law. Contracts. See Corporations. Corporations (Charters as Contracts). "An Historical Development of the Contract Theory in the Dartmouth College Case," by R. N. Denham, Jr. Michigan Law Review (vol. vii, p. 201). Arguing from the history of corporations that the Dartmouth College decision that the granting and acceptance of a charter constituted a contract is correct, the author further thinks it wise and just and that most
