of whom should be experienced in the law and one of experience in the railway business, and not more than two assistant commissioners, and this commission was granted very comprehensive powers, including the power of making through routes and apportioning through rates thereon. As will be hereafter seen, some of the provisions of the Interstate Commerce Act are based upon the English statutes, and the English decisions construing those statutes have been frequently cited in the federal courts. English precedents however in the matter of public regulation of railways are of limited value in this country in view of the vast difference in the conditions of railroad service. In the one there is compact population in a limited area; in the other a great continent, with immense tracts of sparsely settled and newly opened territory, covered with a great network of railroads and with numerous competing communities. § 43. The common law in interstate commerce.— There is no federal common law in the sense of a national customary law distinct from the common law of England, as adopted by the several states, each for itself, applied to its local law and subject to such alterations as may be provided by its own statutes. There are therefore no crimes of the United States, and no pains and penalties are enforced by its courts, except as enacted in the statutes of the United States. Under section 721 of the Judiciary Act the laws of the reveral states are enforced in the courts of the United States.3 In this section, by the "laws of the states" is meant the statute laws of the states as construed by the local tribunals, and not the rules of law declared by the decisions of the states in matters of general jurisprudence. The federal courts are not bound to follow the rulings of the state courts on questions of general commercial law or of equity jurisprudence, 2 Wheaton v. Donaldson, 8 Pet. 1. c. 658, 8 L. Ed. 1079 (1834); Smith v. Alabama, 124 U. S. 465 (1888), 31 L. Ed. 508. 1 Infra, Interstate Commerce Act, stitution, treaties, or statutes of the secs. 2 and 3. United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." (Act Sept. 24, 1789, c. 20, § 34, 1 Stat. 92.) 4 Railroad Co. v. Baugh, 149 U. S. 368 (1893), 37 L. Ed. 772. 3 Sec. 721. Laws of the states; rules of decision. The laws of the several states, except where the con but they declare their own views of the law, irrespective of the courts of the state,' and the same ruling has been made as to the legal principles controlling the liability of railroad companies to employees. There was no federal statutory regulation of interstate commerce prior to the enactment of the interstate commerce law in 1887. It was ruled in some of the circuit courts, that in the absence of a distinct federal, common law or statute, there was no law prior to 1887 controlling the regulations of carriers and shippers in interstate commerce and warranting a recovery on account of discriminating charges therein, and that this was a matter of exclusive federal jurisdiction, which was not exercised prior to the enactment of the Interstate Commerce Act.2 It was therefore held that the state courts had no jurisdiction. in such cases, and as the courts of the United States in removed cases had no wider jurisdiction than the courts from which they were removed, the federal courts had no jurisdiction therein. This question of the common law in interstate commerce was presented to the Supreme Court in 1901 in a case from Nebraska, where the Supreme Court of that state had sustained a recovery against an interstate telegraph company, for alleged discrimination in charges. The company claimed that as there was no federal regulation of interstate telegraph rates, there could be no recovery, as there was no controlling statute or common law for such recovery. The Supreme Court, however, sustained the recovery, holding that there was a common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions were subject to the rules of common law except So far as they were modified by congressional enactment. The jurisdiction of the state court to enforce these principles Swift v. Tyson, 16 Pet. 1 and 18 (1842), 10 L. Ed. 865, 871; Oats v. Bank, 100 U. S. 239 (1879), 25 L. Ed. 580; Railroad Co. v. National Bank, 102 U. S. 14 (1880), 26 L. Ed. 61. Swift v. Railroad Co., 58 Fed. Rep. 858; Sheldon v. Railroad Co., 105 Fed. Rep. 785. See contra, Murry v. Railroad Co., 62 Fed. Rep. 24, 35 C. C. J., in Kinnaey v. Terminal Associa 3 Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92 (1901), 45 L. Ed. 765. of the common law in interstate commercial transactions was therefore sustained. The court in its opinion in these cases refers approvingly to an opinion of Judge Shiras in the Iowa circuit,' where the subject had been exhaustively discussed in a suit for damages against a railroad carrier on account of alleged discrimination. in interstate shipments prior to the enactment of the Interstate Commerce Act. This case had been filed in the state court and removed to the United States circuit court, and it was held that the state court had jurisdiction of the subjectmatter, and therefore the United States court had jurisdiction over the removed case, as congress had not declared any exclusive jurisdiction in such cases for the federal courts. Under the law as declared in these cases, the principles of the common law were enforced as to matters of national control as well as to matters of state control, and in this sense there is a common law of the United States controlling the relations of interstate carriers and the public, and the enactments of Congress in the regulation of those relations are to be construed in the light of the principles of the common law. This applies to interstate commerce on land. Interstate commerce carried on by water, whether on the seas or on the inland navigable waters of the United States, is subject to the rules of the maritime law where applicable. 44. Federal and state courts in the federal regulation of interstate commerce.- Under the constitution of the United States the judicial power of the United States is extended to cases arising under the constitution and laws of the United States, and this jurisdiction may be made exclusive in the federal courts by Congress either by express enactment or by necessary implication therein. It was at one time questioned whether the state courts could exercise concurrent jurisdition with the federal courts in cases arising under the constitution, laws and treaties of the United States; but it was said by the Supreme Court in the case cited that the laws of the United States were laws in the several states, and just as much binding therein on the citizens and courts thereof as were the laws of the states. Rights, whether legal or equit 1 Murray v. Railroad Co., supra. 2 Claflin v. Houseman, 93 U. S. 130 (1876), 23 L. Ed. 833. able, acquired under the laws of the United States may be prosecuted in the courts of the United States, or in the state. courts competent to decide questions of like character and class, subject however to the qualification that when a right arises under a law of the United States, Congress may give to the courts of the United States exclusive jurisdiction.' Under the act of 1887, the Circuit Courts of the United States were given original cognizance, concurrent with the courts of the several states, of all suits of a civil nature in common law or equity, not only in cases of diverse citizenship, but also in cases arising under the constitution and laws of the United States, or treaties made, or which shall be made, under their authority. This is subject to the reservation of the exclusive jurisdiction of the United States courts under section 711 R. S., U. S., in criminal, patent, admiralty cases, and suits for penalties and forfeitures under the laws of the United States. Not only such suits brought to enforce the provisions of specific acts of congress, but also all suits based upon and asserting federal rights in interstate commerce, are suits arising under the constitution and laws of the United States, and the circuit courts of the United States have jurisdiction. thereof irrespective of diverse citizenship. The Supreme Court held in an application for habeas corpus by a party committed for contempt for violating an injunction granted to an interstate railroad to prevent interference with its interstate traffic, that the circuit court had jurisdiction irrespective of citizenship, and that a case arose under the constitution and laws of the United States, whenever the plaintiff sets up a right to which he is entitled under such laws, and the correct decision. of the case depends upon the construction of such laws." In suits brought for the enforcement of rights in interstate commerce and not for the specific enforcement of the provisions of the Interstate Commerce Act or the Anti-Trust Act, the courts have concurrent jurisdiction with the federal courts, and such suits may be brought in the United States circuit courts irrespective of citizenship. The fact that interSee Mr. Hamilton in 82d Federal state ist. 31 Compiled Statutes, p. 577. 4 In re Lennon, 166 U. S. 548, 1. c. See Act of March 3, 1887. and 553, 41 L. Ed. 1110. August 13, 1888, 1 Compiled Stats.. .508. 5 See section 8 of Interstate Commerce Act, infra, § 244 et seq. state commerce is beyond state legislative control does not ipso facto prevent the courts of the state from exercising jurisdiction over cases growing out of that commerce, but the state jurisdiction is excluded, if congress has made exclusive the jurisdiction of the federal courts. Both in the Interstate Commerce Act and the Anti-Trust Act of 1890 there is an express vesting of jurisdiction in the United States courts, of suits brought to enforce the provisions of the act. As to such suits brought to enforce the provisions of the Interstate Commerce Act, it has been held, both in the federal and in the state courts, that the jurisdiction is exclusive in the United States courts. The same ruling would doubtless be made as to suits brought to enforce the Anti-Trust Act of 1890.6 45. Genesis of the Interstate Commerce Act.-The recognition of the governmental power in controlling interstate commerce immediately preceded the judicial declaration that interstate railway transportation was beyond state control. The question of interference with interstate commerce had been raised in the Granger cases, and the court had held that the act regulating fares was valid in the absence of regulation by congress, and that until congress undertook to legislate for those who were without the state, the state could provide for those within, even though those without might be indirectly affected. The supreme court of Illinois' cited these cases in sustaining. a state statute as to so much of interstate transportation as was within the limits of the state of Illinois. But the Supreme Court in the same case (supra, § 35), said that in the Granger cases the importance of the question of the governmental power of regulation and of the company's contract right of exemption therefrom overshadowed all others, so that the question of 4 Murray v. Chicago & N. W. R. Co., 63 Fed. Rep. 25, 1. c. 43. 5 See sections 8 and 9 of Interstate Commerce Act, infra; Van Patten v. Railroad Co.. 74 Fed. Rep. 981; Swift v. Railroad Co., 58 Fed Rep. 858; Edmunds v. Ill. Central R. R. Co., 80 Fed. Rep. 79; Sheldon v. Wabash R. Co., 105 Fed. Rep. 185; Ordway v. Central Nat'l. Bank, 47 Md. 245; Copp v. Railway Co., 43 La. Ann. 511, 12 L. R. A. 725; Charles v. Mo. Pac. R. 6 See sections 4 and 7 of the act of 1890, infra. 7 Pike v. Chicago, etc. R. Co., 94 U. S. 1. c. 177 (1876), 24 L. Ed. 98. 8 Wabash, St. L. & P. R. Co. v. Illinois, 104 Ill. 476. |