§ 72.

Natural Gas belonging to the owner of the land, when once reduced to possession, may become the subject of both intrastate and interstate commerce and regulation.1

§ 73.

127

Original Packages.-Where goods are shipped in original packages from one state to another they are interstate commerce until they are delivered to the consignee, at which time the power of the state attaches to such package and to the goods therein immediately upon the delivery to such consignee.128

§ 74. Pipe-lines laid for the purpose of carrying natural gas, oil, etc., in interstate business are within the protection of the commerce clause of the federal constitution.129

§ 75. -Sale by Sample.-The sale of goods or merchandise by sample or catalogue, where the goods thus sold are situated or to be manufactured out of the state and to be shipped within the state and there

in violation of the prohibitory law of such other state. See § 71, this chapter, and especially footnote 131.

127 West v. Kansas City Natural Gas Co., 221 U. S. 229, 31 Sup. Ct. 564, 55 L. ed. 716, affirming Kansas Natural Gas Co. v. Haskell, 172 Fed. 545.

See, also, note, 12 L. R. A. 652.

128 State v. Eighteen Casks of Beer, 24 Okl. 786, 104 Pac. 1093. As to when original packages shipped from another state lose their character as interstate commerce, see §§ 79 and 80, this chapter, and authorities in footnote 141.

Consignee of original package of intoxicating liquors shipped from another state into the state of Oklahoma is entitled to receive the original package at the depot and transport the same to his home. High v. State, 2 Okl. Cr. 161, 101 Pac. 115; Moreland v. State, 2 Okl. Cr. 237, 101 Pac. 138; Hudson v. State, 2 Okl. Cr. 76, 101 Pac. 275; McCord v. State, 2 Okl. Cr. 214, 101 Pac. 280.

As to the nature of an original package as governed by the interstate commerce law, see Ex parte Agnew (Neb.), 131 N. W. 817; Ex parte King (Neb.), 131 N. W. 820.

129 See Haskell v. Cowhen, 187 Fed. 401.

But the

delivered, constitutes interstate commerce.180 owner of intoxicating liquors in one state cannot send an agent or solicitor of orders for the purchase of such liquor in violation of the laws of such state.181

§ 76. Hawkers and Peddlers and "Itinerant Venders."-Hawkers and peddlers and "itinerant venders" are not within the protection of the interstate commerce clause of the federal constitution; 132 and a person maintaining a general store in the city of another state and traveling from place to place taking orders for his goods and subsequently packing the goods in packages without mark or direction and shipping them into the state for the purpose of delivery, and then delivering such as are accepted and such as are rejected storing in a storehouse provided within the state for that purpose, is not carrying on

130 Wilcox v. People, 46 Colo. 382, 104 Pac. 408. See City of Kinsley v. Dyerly, 79 Kan. 1, 98 Pac. 228; State v. Glasby, 50 Wash. 598, 97 Pac. 734; State v. Davis, 50 Wash. 704, 97 Pac. 737.

Picture frames sold by sample to be manufactured in another state and sent by express either to the purchaser or to the agent, and the moneys collected and sent to the manufacturer, is interstate business. Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. ed. 719.

Selling knives by sample without having a stock along, or any place within the state from which to furnish customers or fill orders, and every knife for which order was taken filled by a firm from without the state, constitutes interstate commerce. People v. Bunker, 128 Mich. 160, 87 N. W. 90.

131 Creigter v. Shepler, 77 Kan. 834, 101 Pac. 619; State v. Sherman, 81 Kan. 874, 107 Pac. 33.

132 People v. Stewart (Mich., Nov. 3, 1911), 132 N. W. 1070; Jewel Tea Co. v. Lee's Summit, 189 Fed. 280; People v. Sawyer, 106 Mich. 428, 64 N. W. 33; City of Muskegon v. Zeeryp, 134 Mich. 181, 96 N. W. 502; City of Alme v. Clow, 146 Mich. 443, 109 N. W. 853; People v. Smith, 147 Mich. 391, 110 N. W. 1102; City of Muskegon v. Hanes, 149 Mich. 460, 112 N. W. 1077; Despres v. Zierleyn, 163 Mich. 399, 128 N. W. 769.

As to acts regulating, being an interference with interstate commerce, article I, section 8 of the Federal Constitution, see Smith v. Farr, 46 Colo. 364, 104 Pac. 401; State v. Boyer, 34 Utah, 257, 97 Pac. 129.

interstate commerce, and is not within the protection of the commerce clause of the federal constitution.188

§ 77. Telegraph Companies accepting provisions of act of Congress July 24, 1866, become agencies of the federal government for the transaction of political business and are instrumentalities of interstate and foreign commerce.134

§ 78. Waters of the United States are within the power of Congress to regulate commerce thereon; 135 but we have already seen that the state has power to prohibit the waste of subterranean waters, natural gas or oil within the state, in the exercise of its police power.138

133 People v. Stewart (Mich., Nov. 3, 1911), 132 N. W. 1070, distinguishing People v. Bunker, 128 Mich. 160, 87 N. W. 90.

184 State v. Northwestern Tel. Co. (Mont.), 117 Pac. 93.

As to taxation by the state of telegraph lines engaged in interstate and foreign commerce, see State v. Western Union Tel. Co. (Mont.), 117 Pac. 93, citing Telegraph Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067; Rotterman v. Western Union Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. ed. 229; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1383, 32 L. ed. 311; Osborne v. Florida, 164 U. S. 654, 17 Sup. Ct. 214, 41 L. ed. 586.

As to power of state to control or impose burdens upon interstate telegraph and telephone companies, see note, 24 L. R. A. 161.

Assessment of franchise of telegraph company, consisting of a valuation of the right or privilege of carrying on business within a designated county, with no separate valuation on the right to do interstate private business, is void. State v. Western Union Tel. Co. (Mont.), 117 Pac. 93.

"Within said county," in a valuation of a telegraph company's franchise, has reference to business originating within and terminating in offices situate within such county and does not relate to business wholly between offices within the county. State v. Western Union Tel. Co. (Mont.), 117 Pac. 93. See Charleston v. Postal Tel. Co., 3 Am. Elect. Cas. 56, 9 Ry. & Corp. L. J. 129; Western Union Tel. Co. v. Meyer, 38 Fed. 53, 3 L. R. A. 449; Pensacola Tel. Co. v. Western Union Tel. Co.. 96 U. S. 1, 24 L. ed. 78; Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067.

135 Williams v. Molter, 187 Fed. 700.

136 See supra, footnote 111, this chapter.

§ 79. Loss of Character of Interstate Commerce.Goods shipped from a point without the state to a designated point within the state and there delivered are interstate commerce, but such shipment originating as interstate commerce may lose its character as such and become subject to state control.137 When a commodity transported has reached the termination of its journey and has been delivered to the consignee, it ceases to be the subject of interstate commerce, and the subsequent shipment from the point of delivery to another point within the same state is an interstate and not an intrastate shipment, and subject exclusively to state control.138

137 Ex parte Agnew (Neb.), 131 N. W. 817; Ex parte King (Neb.), 131 N. W. 820.

138 See Oregon R. & Nav. Co. v. Campbell, 180 Fed. 253. See, also, The Daniel Ball v. United States, 77 U. S. (10 Wall.) 557, 565, 19 L. ed. 999; Sands v. Manistee River Imp. Co., 123 U. S. 288, 295, 8 Sup. Ct. 113, 31 L. ed. 149; Gulf C. & S. F. R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 361, 51 L. ed. 514; General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 475, 52 L. ed. 754.

As to when an interstate shipment ceases to be interstate commerce, see General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 275, 52 L. ed. 754.

A rate was established for transportation of tobacco from Nashville, Tennessee, to Louisville, Kentucky, at twelve cents per hundred pounds, presumably so fixed on account of water competition between the same points. The same railroad established from Franklin, Kentucky, to Louisville, Kentucky, a rate of twenty-five cents per hundred pounds, Franklin, Kentucky, being a point on the road from Nashville, Tennessee, to Louisville, Kentucky, but the Kentucky constitution had prohibited common carriers to charge more for a shorter that for a longer haul over the same line under substantially similar circumstances and conditions. In an action brought to recover the excess between twelve cents and twenty-five cents per hundred pounds on a shipment of tobacco from Franklin to Louisville, Kentucky, the supreme court of the United States held that in so far as the constitution of the state of Kentucky sought to regulate, to some extent, the interstate commerce of carriers, which power of regulation the constitution of the United States gave to the federal Congress, it was invalid. Louisville & N. R. Co. v. Eubank, 184 U. S. 27, 22 Sup. Ct. 277, 46 L. ed. 416. That is to say, the state has no power, either through its legislature or through a Commission, to fix rates for or to regulate to any extent commerce between the states.

9

A shipment from a point within the state to another point within the same state is purely state commerce, and not subject to regulation by the act controlling intrastate and foreign commerce; but such a shipment loses its character as state commerce and becomes intrastate commerce when in the course of the shipment the goods pass over a portion of the road situate without the boundaries of the state.139 A different view has been expressed, but it is thought not to be the better doctrine.1

140

§ 80. Original Packages.-Merchandise transported in original packages from without the state to the termination of their journey within the state, on delivery there to the consignee, ceases to be the subject of interstate commerce, and any subsequent shipment thereof from the point of delivery to another point within the state is an interstate shipment, and is governed by the local freight rates prescribed in the manner provided for by the Railroad Commission Act.141

189 Frayham v. Charleston & N. C. R. Co. (S. C.), 71 S. E. 813; Sternberger v. Cape Fear & Y. V. R. Co., 29 S. C. 510, 7 S. E. 836, 2 L. R. A. 105; State v. Haleyman, 55 S. C. 207, 31 S. E. 362, 33 S. E. 366, 45 L. R. A. 567; Frasier v. Charleston & W. C. R. Co., 81 S. C. 162, 62 S. E. 14; Hunter v. Charleston & W. C. R. Co., 81 S. C. 169, 62 S. E. 13; Hanley v. Kansas C. St. R. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. ed. 333.

140 See supra, authorities in footnote 118, and the text going therewith, in this chapter.

141 Oregon R. & Nav. Co. v. Campbell, 180 Fed. 253.

The principle of the two cases was held not to be the same, notwithstanding the fact that "the transportation of freight or of subjects of commerce, for the purpose of exchanging or selling, is beyond all question a constituent of commerce itself." While an importer may insist that he has a right to sell goods that he has brought into the state from another state, while in the original packages, it does not follow that a carrier has the right to treat those goods as interstate goods so long as they remain in that condition or unsold by the importer. The carrier depends upon the contract of carriage, and interstate traffic as to him depends upon whether he is called upon to transport from one state