Gatton v. Chicago, Rock Island & Pacific Railway Co.

28 L.R.A. 556, 95 Iowa 112

• Court: Supreme Court of Iowa
• Decided: May 28, 1895
• Status: Published

Opinion

Kinne, J.

I. The petition in this action is in two hundred and thirty-nine counts, all of which, save in dates of shipments, cars and kinds of stock shipped, and place from which shipped, are alike. The allegations are that the defendant is a railway corporation organized under the laws of the states of Iowa and Illinois? and engaged in the business of a common carrier, owning and operating its lines of railroad in and through said states, and that it has for more than ten years last past so owned and operated said road. It is then averred that, on live stock shipped from various points in Iowa over the defendant’s line of road to Chicago, the defendant charged plaintiff’s assignors the regular tariff rate per car, and that during the same time other ■parties were also engaged in shipping live stock over the defendant’s road from the same places to Chicago, 111., to each of whom the defendant allowed and paid a •rebate or drawback of seventeen dollars on each and every car of live stock so shipped, thereby requiring plaintiff’s assignors to pay seventeen dollars per car more than the rate per car exacted of these other shippers; that said-shipments so made by plaintiff’s assignors were upon like conditions and similar circumstances as the shipments made by said other parties, and the -services rendered by the defendant were the same in all ■of said cases; that the sums charged plaintiff’s assignors were unreasonable and .extortionate, and seventeen dollars per car in excess of a fair and reasonable rate; that the rate charged was, under the circumstances, an unfair and unjust discrimination. Other necessary allegations are made. The plaintiff prayed ■for a judgment of ten thousand dollars. The defendant ■denies most of the material allegations of the petition, pleads the statute of limitations, in an amendment, and, as a separate' defense, defendant pleads that all of said shipments were interstate shipments, and pertained exclusively to commerce between the states; that when said shipments were made the congress of the United States had not enacted any statute regulating or pertaining to shipments of that character; that the power to regulate commerce among the several states is vested exclusively in congress, and at the time said shipments .were made there was no statute, or any rule of common law, governing or applicable to said shipments, or forbidding any discrimination or preference in rates. To this amendment plaintiff demurred, in substance because, in the absence of an act of congress, the common law was in force, and governed as to such shipments, and prevented unjust discrimination, or the charging of unreasonable rates; that the common law inhibitions were not regulations of commerce; that the state law prohibiting unjust discrimination by a-common carrier is not obnoxious to the constitution of the United States; that such discrimination is contrary to public policy. The demurrer was .overruled. The plaintiff excepted, and electing to stand upon his demurrer, and refusing to plead further, the court dismissed his petition, and rendered judgment against him for costs, to which he also excepted.

1 II. In this case we have had the benefit of exhaustive and able arguments, at the bar and in print, by eminent counsel. In addition to the printed argument filed by the appellant’s counsel, we have been furnished with like arguments by C.. C. Nourse and Messrs. Rickel & Crocker, who have cases pending involving the same question. We fully appreciate the importance of the question presented, and have devoted much time to its investigation, as well as to an examination of the large number of cases referred to by counsel. The question raised by the demurrer is whether overcharges by a common carrier on interstate shipments, made prior to the taking effect of the interstate commerce act, can be recovered by the shipper. On the one hand, it is insisted that prior to the enactment of that act the common law afforded a remedy in such cases; that the common-law rule forbidding common carriers from making unjust discrimination between shippers for like services rendered under the same circumstances was not violative of the provisions •of the constitution of the United States which invested congress with the power to regulate commerce between the states. Appellee contends that as the right to regulate commerce between the several states, was, by the constitution, vested exclusively in congress, and, as congress had enacted no law with reference thereto, there was afforded no relief in such cases; that there Was no common law applicable to the United States, as a nation.

2 It is conceded that prior to the passage of the interstate commerce act there was no statute of the United States which affected the right of a carrier of interstate shipments to make discriminations in freight charges, or to give rebates to one shipper, and to with- ■ •hold them from another shipper. We think it must' also be held that, before congress legislated on this sub- • ject of interstate commerce, no state statute could affect charges or discriminations made by a carrier in. respect to such shipments. Of this, however, we shall have more to say hereafter. Assuming, then, that the-right of-recovery, if any exists in this case, must be-found outside of the statutes of the state, we inquire,. where is it provided for? In determining as to whether there is, or rather was, any common law. applicable generally to the United States, as a nation, we may be aided by a consideration of some facts connected with the early history of our country.

It is clear that prior to the Eevolutionary War the common law was in force in all of the colonies. Bach colony, subject to certain restrictions and limitations,, determined its own system of local or municipal law. Each adopted so much of the common law of England as it deemed suited to the wants and necessities of its ■ people. “The colonists who .established the English colonies in this country undoubtedly brought with them the common and statute laws of England, as they stood at the time of their emigration, so far as they were applicable to the situation and local circumstances •. of the colony.” U. S. v. Reid, 12 How. 363. “Our ancestors brought with them its general principles, and claimed it as their birthright, but they brought with them and'adopted only that portion which was ajjplicable to their situation.” Van Ness v. Pacard, 2 Pet. 137-144. As is said In re Barry, 42 Fed. Rep. 114, in speaking of the common law, “it came to them, and was appropriated by them, and became an integral portion of the laws of the particular states, before the United States government had an existence.” The congress of 1774 unanimously resolved that the colonies “are entitled to the common law of England.” Journal of Congress, Declaration of Bights, of the Colonies; Act 14, 1774, pp. 27-31. Story says that the uniform doctrine ever since the settlement of the colonies, and the uniform principle which has been conformed to. in practice, has been that the common law is our birthright and inheritance, “and that our ancestors brought hither with them, upon their emigration, all of it which was ■applicable to their situation.” 1 Story, Const., section 157; 1 Kent, Comm. 471, and notes. In Town of Parolet v. Clark, 9 Cranch, 332, it is said, “We take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges.” In U. S. v. Worrall, 2 Dall. 384, Fed. Rep. Cas. No. 16,766. “There is no doubt that the common law is the basis of the laws of those .states which were originally colonies of England, or carved out of such colonies. It was imported by the colonists, and established, .so far as it was applicable to their institutions and circumstances.” Norris v. Harris, 15 Cal. 227-252. In Cooley, Const. Lim. pp. 34-37, it is said: “From the first the colonists in America claimed the benefit •and protection of the common law. In some particulars, however, the common law, as then existing in England, was not suited to their conditions and circumstances in the new country, and these particulars they omitted as it was put in practice by them. They also-claimed the benefit of suc'h statutes as. from time to time had been enacted in modification of this body of rules. * * * The evidence of the common law consisted in part of the declaratory statutes we have mentioned, in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the laws to actual controversies. While colonization continued — that is to- say, until the war of the Revolution actually commenced — these decisions were authority in the colonies, and the changes made in the common law up to the same period were operative in America also, if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which has been adopted in America flowed on by itself, no longer subject to changes from across the ocean, but liable still to be gradually modified through changes in the modes of thought and of business among the people, as well as-through statutory enactments.”

3 The common law, then, existed in this country prior to the Declaration of Independence, but it was not a national common law. It was the local law of •each colony. They had not yet formed a new nation. Now, when, if at all, did this common law which had become the heritage of the colonists cease to. be applicable to the colonies severally, or when did it take units national character? Surely, not by the Act of Independence, which made the colonies “free and independent states.” The mere fact of the emerging of the colonies from their' colonial condition into that of independent states did not ingraft the common law, which had been severally adopted by the colonies, into a general 'system of national law. It is said that when they became independent they were- governed by the common law of England, so far as they had tacitly adopted it as suited to their condition, by the statutes of England amendatory of the common law, and by the colonial statutes. Judge Cooley says that the common law of England, and the statutes amendatory of ‘it, “constituted the American common law, and by this, in great part, are rights adjudged and wrongs redressed in the American states to this day.” Cooley, Const. Lim. p. 37. Here the learned author clearly recognizes that the common law he speaks of as being adopted in this country is the common law as adopted by the separate colonies, and not a common law of general national application. As is said In re Barry, 42 Fed. Rep. 127: “Although the people brought with them, on their emigration to this country, the essential principles of the common law, and embodied them in their institutions, yet this was not done by them in a national capacity (at that time no such character or capacity was contemplated), but as distinct communities, independent of each other.” The situation in this respect was not changed by the articles of confederation. As is well said by Prof. Fiske in his work on the Critical Period in American History (page 97): “The articles simply defined the relation of the states to the confederation, as they had already shaped themselves. Indeed, the articles, though not fully ratified till 1781, had been known to congress and to the people, ever since 1776, as their expected constitution, and political action had been shaped in general in accordance with the theory on which they had been drawn up.” As yet we discover no reason for saying that there was any national common law prior to the adoption of the constitution of the United States. The apparent necessity of taking from the states, and granting to the general government, the power to regulate commerce, was an early, if not the first, reason for calling a constitutional convention. Indeed, this power was vested in congress, only after a struggle in the convention, and by virtue of a concession made on the part of the New England states, whereby consent was given to an extension of the foreign slave trade for twenty years. Fiske, 263, 264. The Southern states feared that “the New Englanders would get all the carrying trade into their own hands, and then charge ruinous freights for carrying rice, indigo, and tobacco to the North and to Europe.” Fiske, 263. It would seem that all such fears must have been groundless, if the principles of the common law as to carriers — that they should charge only reasonable rates for their services' — were to be adopted and established as a national system of jurisprudence, as appellant claims was in fact done. It is a historical fact that the ratification of the constitution had only been accomplished when the very question now before us — as to whether there is a common law of the United States — was the subject of serious consideration in the legislative assemblies, and of judicial inquiry in the courts. On January 11, 1800, the general assembly of the State of Virginia adopted an instruction to their representatives in the United States senate. That document reads: “The general assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences, — that the common law of England is in force under the government of the United States. It is not, at this time, proposed to expose at large the monstrous pretensions resulting from the adoption' of the principle. It ought never, however, to be forgotten, and can never be too often repeated, that it opens a new tribunal for the trial of crimes, never contemplated! by the federal compact; It opens a new code of sanguinary criminal law, both obsolete and unknown, and either wholly rejected, or essentially modified in almost all its parts, by state institutions. It arrests or supersedes state jurisdictions, and innovates upon state laws. It subjects the citizen to punishment according to the judiciary will, when he is left in ignorance of what this law enjoins as a duty, or prohibits as a crime. It assumes a range of jurisdiction for the federal courts which defines limitation or definition.” They then instruct their senators “to oppose the passing of any law founded on or recognizing the principle lately advanced, that the common law of England is in force under the government of the United States; excepting from such opposition such particular parts of the common law as may have a sanction from the constitution, so far as they are necessarily comprehended in the technical phrases which express the provisions delegated to the government, and excepting also such other parts thereof as may be adopted by congress as necessary and proper for carrying into execution the powers expressly delegated.” Duponceau Jur. page 225. The Virginia instructions were no doubt caused by the consideration of this question in 1798 in the case of U. S. v. Worrall, 2 Dali. 384, Fed. Rep. Gas, No. 16,766. That was an indictment for an attempt to bribe a commissioner of the revenue of the United States. In that case the court says the question is “whether the courts of the United States can punish a man for any act before it is declared by a law of the United States to be criminal.” It is there said: “It is attempted, however, to supply the silence of the constitution and statutes of the Union by resorting to the common law for a definition and punishment of the offense which has been committed. But in my opinion the United States, as a federal government, have no common law, and consequently no indictment can be maintained in these courts for offenses merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England, and yet it is impossible to trace when or how the system was adopted or introduced. * * * He who should travel through the different states will soon discover that the whole of the common law has been nowhere introduced, — some states have rejected' what others have adopted,— and that there is, in short, a great and essential diversity in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one state, is not the common law of another. But the common law of England is the law of each state, so far as each state has adopted it. * * But the question recurs, when and how have the courts of -the United States acquired common-law jurisdiction in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents. Now, the United States did not bring it with them from England, the constitution does not create it, and no act of congress, has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England, or modified as it exists in some of the states; and of the various modifications,which are we to select?” In U. S. v. Hudson, 7 Cranch, 32, Justice Johnson, in discussing the question of the common-law jurisdiction of the federal courts, says: “Although this question is brought up now, for the first time, to be decided by this court, we consider it as having been long since settled in public opinion. In no other case for many years has the jurisdiction been asserted, and the general acquiescence of legal men shows the prevalence of opinion in favor of the negative.” U. S. v. Coolidge, 1 Wheat. 415. Peter S. Duponceau, provost of the law academy of Philadelphia, was an early and eminent advocate of the theory that the common law was adopted - as a federal system. In his work on Jurisdiction, he says: “I am well aware that this doctrine of the nationality of the common law will meet with many opponents. There is a spirit of hostility abroad against this system, which cannot escape the eye of the most superficial observer. It began in Virginia in the year 1799 or 1800, in consequence of an opposition to the alien and sedition acts. A committee of the legislative body made a report against those laws, which was accepted by the house, in which it was broadly laid down that the common law is not the law of the-'United States. Not long afterwards the flame caught in Pennsylvania, and it was for some time believed that the legislature would abolish the common law altogether. Violent pamphlets were published to instigate them to-that measure. The whole, however, ended in a law for determining all suits by arbitration in the first instance,. at the will of either party, and another prohibiting the reading and quoting in courts of justice of British authorities of a date posterior to the Revolution. * * * It was not long before this inimical disposition towards the common law made its way into the-state of Ohio. In the year-1819 a learned and elaborate work was published in that state, in which it was endeavored to prove, not only that the common law was not the law of the United States, but that it had no authority in any of the states that had been formed out of the old Northwestern Territory. * * * In other states, attacks upon the common law, more or less direct, have appeared from time to time.” Duponceau Jur. pages 102,103. In this same work, and in support of his contention that the constitution adopted the common law of England as a national system of law,, the author says: “But why need I go into such a wide argument to prove what I consider a self-evident principle? We live in the midst of the common law; we inhale it at every breath, imbibe it at every pore; we meet it when we walk, and when we stay at home; it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning at the same time another language. We cannot think •of right or wrong, but through the medium of ideas that we have derived from the common lawN This may all be true, as applied to the existence of the common law as the local law of the states; but, in and of itself, if; does not tend to establish the ■claim that we have a common law of the United States, national in its character and application. The doctrine that by the adoption of the constitution the people 'had accepted and established the heretofore existing common law as a rule of national action, and of general application, was not only in the early history of our nation, originally combated, but was denied by the ■courts in the cases in which it was then discussed, as we have attempted to show. We have treated at some length of the historical phase of this question, as, to our minds, the subsequent discussion of the question will thereby be the better understood.

4 5 6 III. From the foregoing discussion it is clear that any rule of the common law affecting interstate shipments, to be effectual as to such shipments, must have had the legislative sanction of the congress of the United States, or, in the absence thereof, the rules of' the common law must have become a part of the system ■of laws of the national government, the same as they become a part of the legal system of many of the states of the Union. The constitution of the United States provides “that judicial power shall extend to all cases in law and equity, arising under this constitution; the laws of the United States, and treaties made, or which shall be made, under their •.authority: * * * to all cases of admiralty and maritime jurisdiction.” Article 3, section 2. It is contended. that the above provision is a clear recognition of' the existence of the several systems of law, equity, and. admiralty, and that by this constitutional provision the systems are not created, but their existence is simply recognized, and the extent of federal jurisdiction in regard thereto fixed. Now, it is to be observed' that, as to admiralty and maritime jurisdiction, the language used is without restriction or limitation. It is, “the federal power shall extend * * * to- all" cases of admiralty and maritime- jurisdiction.” It is not provided that the judicial power shall extend to all cases of law and equity jurisdiction, without limitation. But the provision is- that it “shall extend* to- all cases in law or equity, arising under this constitution,, the laws of the United States,” etc. So it will be seen-that, as to admiralty, jurisdiction extends “to all cases of admiralty and maritime jurisdiction,” while, as to-law and equity, the judicial power is extended to all cases which arise under the constitution, the laws of' the United States, and treaties. In the latter case there is a fixed limitation as to the -extent of judicial power. The particular cases to which such power i-s-extended are expressly pointed out. If the provision was that the judicial power should extend to all cases-of law and equity jurisdiction, or its equivalent, its meaning would obviously be different. So, then, the jurisdiction thus conferred by the constitution as to-cases in “law and equity” is limited by what follows-as to- cases arising under the constitution, etc. In-other words, it seems to us that to give the words “in law and equity,” a,s used in the constitution, the meaning contended for, is to ignore the meaning and effect of the qualifying words which follow them. Reading-the entire sentence, it is reasonably clear that the-words “in law and equity” are not used to describe a system or systems of jurisprudence then or theretofore-in existence. The jurisdiction is as. to cases in law or ■equity “arising under” the constitution, laws, and treaties. We are then to look to the constitution, the laws of the United States, and to its treaties, to determine what rights are given. The rights conferred by this provision do not arise by reason of a constitutional recognition of the common-law system, but are conferred, as to cases at law or in equity, by the constitution itself, the laws of the United States, or by its treaties. If not embraced within these, they cannot be said to be given. Now, a supposed right is sought to be •enforced at law or in equity, but such right, if it exists •at all, must arise — that is, exist or be given — by the ■ constitution or laws of the United States, or its treaties. The constitution and laws of the United States fix, establish, and give certain rights. In the attempt to assert or defend such rights, “cases” arise. In some of them the remedy applicable would be furnished by an application of the rules of the common law; in others, 'by principles of equity. So there are cases “at law or in equity,” so far as the proper method of procedure or •remedy is concerned; but as to the rights given, upon which such cases are based, they are to' be found by a resort to the constitution, laws of the United States, ■ and its treaties. Jurisdiction, then, is not conferred by any express or implied recognition or adoption of the common law; but when it attaches under the constitution, laws, or treaties of the United States, the remedies afforded for the enforcement of the rights thus granted are to be in accordance with the course of the common law. In brief, the position we take is that the provision of the constitution of •the United States under consideration is to be interpreted, as providing that rights are conferred by the constitution, laws of the United States, and its treaties, while the remedies for the securing of these rights are 'to be at common law, or according to the principles of equity, as the case may be. It is said in Robinson v. Campbell, 3 Wheat. 222: “By the laws of the United States, the circuit courts have cognizance of all suits of a civil nature, at common law and in equity, in cases which fall within the limits prescribed by these laws. * * * The court therefore think that, to effectuate the purpose of the legislature, the remedies in the courts of the United States are to be at common law, or in equity, — not according to the practice of state .courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles.” In Irvine v. Marshall, 20 How. 564, it is said: “With regard to the fourth objection, — want of jurisdiction' in the courts of the United States, in the absence of express statutory provisions, to recognize and enforce a resulting trust, * * * —it is a sufficient response to say that the jurisdiction of the courts of the United 'States is properly commensurate with •every right and duty created, declared, or necessarily implied, by and under the constitution and laws of the United States. Those courts are created courts of common law and equity, and under whichsoever of these classes of jurisprudence such rights or duties may fall, ■or be appropriately ranged, they are to be taken cognizance of and adjudicated according to the settled and known principles of that division to which they belong. By the language of the constitution, it is ■expressly declared that the judicial power of the United States shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority. By the statute which organized the judiciary of the,United States, it is provided that the circuit courts shall have jurisdiction of suits of a civil nature at common law or in equity. In the interpretations of these clauses of the constitution and the statute, this court has repeatedly ruled that by ‘cases at common law’ are to be understood suits in which legal rights are to be ascertained and determined, in contradistinction to those where equitable rights alone are recognized, and equitable remedies administered. * * Gan these courts, consistently with their duty, refuse to exert those powers and that jurisdiction for the protection of rights arising nnder the constitution and laws, in the acceptation in which both have been interpreted and sanctioned?” These cases, we think, support our conclusion that rights are to be given by the constitution, the laws of the United States, or its treaties, but remedies for such rights are to be pursued in accordance with the course of the common law. If we are right in this view, it follows that the constitution does not confer upon the courts of the United States full common law jurisdiction, in a national sense, as claimed by appellant.

IY. Section 8 of article 1 of the federal constitution provides that “the congress shall have power * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In this section it is further provided that congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” It may be that, even though the common law was a part of our national system of laws, and that under it a right was given to recover in a case like that at bar, still such right would be taken away by the provision of the constitution above quoted, in view of the fact that the power therein conferred has been held to be exclusive in congress. It has often been held that the power thus conferred was exclusive; that it had the effect to prohibit legislation thereon, so far as it pertained to interstate commerce, and to a regulation thereof. “Whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations. Power over one is given by the constitution of the United States to congress, in the same words in which it is given over the other, and. in both cases it is necessarily exclusive.” Railroad Co. v. Husen, 95 U. S. 465-469. “Whatever subjects of this power are, in their nature, national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as requires exclusive legislation by congress.” Cooley v. Board, 12 How. 299. “Whenever the terms in which a power is granted to- congress, or the nature of the power, require that it should be exercised exclusively by congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act upon it.” Sturgis v. Crownshield, 4 Wheat. 122; Brown v. Maryland, 12 Wheat. 419. In Smith v. Alabama, 124 U. S. 465-473, 8 Sup. Ct. Rep. 564, it is said: “As the regulation of commerce may consist in abstaining from prescribing positive rules for-its conduct, it cannot always be said that the power to-regulate is dormant because not affirmatively exercised. And when it is manifest that congress intends-to leave that commerce, which is subject to its jurisdiction, free and unfettered by any positive regulations, such intention would be contravened by state laws, operating as regulations of commerce as much as. though these had been expressly forbidden. In such cases the existence of the power to regulate commerce in congress has been construed to be not only paramount, but exclusive, so as to withdraw the subject, as. the basis of legislation, altogether from states.” Hall v. De Cuir, 95 U. S. 485-507. So it was held in Welton v. Missouri, 91 U. S. 275, and Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091, that the inaction of congress with reference to legislation touching interstate commerce is equivalent to a declaration that such commerce shall be free and untrammeled. Wabash, St. L. & P. R. Co. v. People of Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4; County of Mobile v. Kimball, 102 U. S. 697; Robbins v. Taxing Dist., 120 U. S. 493, 7 Sup. Ct. Rep. 592; Leisy v. Hardin, 135 U. S. 109, 10 Sup. Ct. Rep. 681; The Federal Power over Commerce, by William Draper Lewis (pages 122, 123); Carton v. Railroad Co., 59 Iowa, 151 (13 N. W. Rep. 67). Prom the foregoing discussion it will be observed that, as to the regulation of interstate commerce, the power of congress is exclusive, and it is none the less so' though congress may not have legislated with respect thereto. In either event the states have no power to regulate such commerce.

Y. No right of recovery, then, in this case, is or can be given by virtue of the statutes of the states, it being a matter exclusively within the jurisdiction of congress. No statute of the United States creates a right in such a case. If, then, there exists any right of recovery, it must be by virtue of the existence of the common law as a recognized part of our national system of jurisprudence. We have said that the constitution of the United States did not, of itself, recognize the •existence of the common law as a system of jurisprudence of national application. Even if it should be conceded that efficacy could be given to. such a system, and make it of national application, in the absence of constitutional or statutory recognition, by means of judicial decisions of the United States supreme court, — a point not necessary for us to decide,— do the decisions of that court go to that extent? That.court has never determined the precise question involved in this action, but it has passed upon questions of interstate commerce,- and its attempted regulation by the states. In U. S. v. Worrall, 2 Dall. 384, Fed. Cas. No. 16,766, a ■cajse where one was tried under an indictment for attempting to bribe a commissioner of the revenue of the United States, — it was held that the defendant could not be punished, inasmuch as there was no federal law declaring the act done to be a crime. It is therein said: “It is attempted, however, to- supply the silence of the constitution and statutes of the Union by resorting to the common law for a definition and punishment of the offense which has been committed. But in my opinion the United States, as a federal government, have no common law. * * If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England, and yet it is impossible to trace when or how the system was adopted or introduced. * * * But the question recurs, when and how have the courts of the United States acquired a common-law jurisdiction in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents. Now, the United States did not bring it with them from England, the constitution does not create it, and no act of congress has assumed it. * * * Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common-law authority relating to crimes and punishments has not been conferred upon the governmefit of the United States, which is a government of limited jurisdiction; but judges cannot remedy political imperfections, nor supply any legislative omissions.” The same question was decided in the same way by the United States supreme court. U. S. v. Hudson, 7 Cranch, 32. In U. S. v. Railroad Bridge Co., 6 McLean, 517, Fed Cas. No. 16,114, referring to this common-law question, it is said: “The instrumentality of the judiciary can be invoked only by the government to give effect to its laws, civil or criminal, but the judicial power cannot precede that of legislation. The rule of action on all questions of policy, within the federal power must be prescribed by congress-. There is no federal common law, which pervades the Union, and constitutes a rule of judicial: action. But in all the states the common law is in force, in a greater or less degree. Its existence and extent are shown by the statutes of the states, respectively, and the usages of the courts. But there is no common law in regard to regulations of navigation. These must be adapted to the peculiar circumstances, of a country, and the facilities which exist for traffic. In this respect the legislation of congress is the only remedy known to the constitution.” Again it is said,. “There is no unwritten or common law of the Union.”' Lorman, v. Clarke, 2 McLean, 568-572, Fed. Cas. No. 8,516. It is held in Wheaton v. Peters, 8 Pet. 591, 657, 658: “It is clear, there can be no common law of the-United States. The federal government is composed of twenty-four sovereign and independent states, each, of which may have its local usages, customs, and common law. There is no principle which pervades the-Union, and has the: authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our federal system, only by legislative adoption. When, therefore, a common-law right is asserted, we must look to the state in which the controversy originated.” in Bucher v. Railroad Co., 125 U. S. 583, 8 Sup. Ct. Rep. 974, it is said, “There is no common law of the United States, yet the main body of the rights of the people of this aountry rest upon, and are governed by, principles derived from, the common law of England, and established as the'ws of the different states.” In Smith v. Alabama, U. S. 465-475, 8 Sup. Ct. Rep. 564, — a case relating‘censing of locomotive engineers by a-state, — in. * the common law as it prevails in the sevs said: “It does not emanate from the-.authority of the national government, nor flow from the exercise of any legislative powers conferred upon eongress hy the constitution of the United States, nor ean it be implied as existing by force of any other legislative authority than that of the several states in which it is enforced. * * * But for the provisions on the subject found in the local law of each state, there would be no legal obligation on the part of the carrier, whether ex contractu or ex delicto, to those who employ him; or, 'if the local law is held not to apply when the carrier is engaged in foreign or interstate commerce, then, in the absence of laws passed by congress, or presumed to be adopted by it, there can be no rule of decision based upon rights and duties supposed to grow out of the relation of such carrier to the public, or to individuals. In other words, if the laws of the particular state do not govern that relation, and prescribe the rights and duties which it implies, then there is, and can be, no law that does, until congress expressly supplies it, or is held by implication to have supplied it, in cases within its jurisdiction over foreign and interstate commerce. The failure of congress to legislate can be construed only as an intention not to disturb what already exists, and is the mode by which it adopts, for cases within the scope of its power, the rule of the state law, which, until displaced, covers the subject. * * * There is no common law of the United States, 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 as its local law, and subject to such alterations as may be provided by its own ■statutes.” Again, in Transportation Co. v. City of Parkersburg, 107 U. S. 691, 700, 2 Sup. Ct. Rep. 732, it is said: “Be this, however, as it may, it is an undoubted rule of universal application that wharfage for the use of all public wharves must be reasonable; but then the -question arises, by what law is this rule established and. by what law can it be enforced? By what law is it to be decided whether charges are or are not extortionate? There can be but one answer to these questions. Clearly, it must be by the local municipal law, at least until some superior or permanent law has been prescribed. At Parkersburg, it is the law of West Virginia. The rule referred to is a rule of the common law, undoubtedly, but it has force in West Virginia because the common law is the law of that state, and not because it is the law of the United States. The courts of the United States do not enforce the common law, in municipal matters in the states, because it is the federal law, but because it is the law of the state.” In Kendall v. U. S. 12 Pet. 524-621, the court says: “The common law has not been adopted by the United States as a system in the states generally, as has been done with respect to this district.” (Columbia.) Again, in the case of The Scotland, 105 U. S. 24-32, it is said, “As for the civil and common laws, they are only municipal laws, where they have the force of laws at all.” In re Barry, — a case decided in the United States circuit court of the Southern district of New York, which is approved by the supreme court of the United States in the case of In re Burrus, 136 U. S. 586, 10 Sup. Ct. Rep. 850, and which is found reported in 136 U. S. 597, and also in 42 Fed. Rep. 113,—it was held that the United States circuit court could not exercise the common-law function of parens patriae, and therefore had no jurisdiction over the matter, there being no statute conferring jurisdiction. In the course of that opinion, it is said (136 U. S. 605, 42 Fed. Rep. 113): “Though the point has been labored with ability by a late jurist of eminence in this department of legal learning, to deduce from the circumstances attendant upon the establishment of this government that the common law became embodied in it, as an efficient principle of its authority and action (Dup. Jur. 85-90), yet the doctrine has never been declared or sanctioned by our courts. So far as the decisions have gone, they tend to repudiate the principle in toto. U. S. v. Hudson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415.” On page 617, 136 U. S., and page 113, 42 Fed. Rep. it is said: “Nor has the common law been adopted by the United States as a system applicable to the states generally, and to be administered as such in the national courts. Kendall v. U. S., 12 Pet. 624. This has been done specifically, by act of congress, in relation to the District of Columbia. Id. 621. But in respect to the states the common law is regarded in force only as adopted or modified by the constitution, statutes, or usages of the states, respectively. It came to them, and was appropriated by them, and became an integral portion of the laws of the particular states, before the United States government had an existence.” The case of Wabash, etc., Ry. Co. v. People of Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4, was where a statute of Illinois provided that if any railroad company shall, within that state, charge or receive for transporting passengers or freight of the same, class the same or a greater sum for any distance-than it does for a longer distance', it shall be liable to a penalty for unjust discrimination. The railway company made such a discrimination in regard to goods transported over the same road or roads from Peoria, in Illinois, and from Gilman, in Illinois, to New York, charging more for the same class of goods carried from Gilman than from Peoria; the former being eighty-six miles nearer to New York than the latter, this difference being in the length of the line within the state of Illinois. The court held that the statute must be construed to include a transportation of goods, under one contract and one voyage, from the interior of the state of Illinois to New York; that such statute was void, as an interference with interstate commerce. That case quotes approvingly from County of Mobile v. Kimball, 102 U. S. 691-702, where it is said, “For the regulation of commerce, as thus defined, there can be only one system of rules, applicable alike to'the whole country, and the authority which can act for the whole country can alone adopt such a system.” Continuing in the Wabash Case, the court says, “And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the congress of the United States under the commerce clause of the constitution.” In the recent case of Swift v. Railroad Co., 58 Fed. Rep. 858, and 64 Fed. Rep. 59, it was held by the circuit court of the United States for the Northern district of Illinois that there was no federal common law.

Whenever this question of the existence of a federal common law, as contradistinguished from the common law adopted by the several states, has arisen in the state courts, it has been decided that no su'ch law exists. In People v. Folsom, 5 Cal. 379, it is said: “Now, there is no common law of the United States, as contradistinguished from the individual states, and the •courts of the United States, instead of administering the common law, or any particular system, conform to the laws of the States where they are situated; so that the acquisition of California did not extend over it the common law.” In Norris v. Harris, 15 Cal. 227-252, the same doctrine is reaffirmed. And so in Garner v. Wright, 52 Ark. 385, 388, 12 S. W. Rep. 785, it is held that no presumption obtains as to the existence of the common law in states like Louisiana and Texas, whose jurisprudence is not based upon the common-law system. Judge Cooley, in his able work on Constitutional Limitations, says the United States courts have no “common-law jurisdiction.” Cooley, Const. Lim. page 526. In an article in the Forum of April, 1894, entitled, “Has the interstate commerce law been beneficial?” written by Ad'lace F. Walker, formerly a member of the interstate commerce commission, and an eminent lawyer, we find the following: “Yet, under our combined state and federal system of government, there was no way in which they could be judicially applied to commerce crossing state boundaries until the passage of the interstate commerce law.”

8 We now proceed to a consideration of authorities claimed by appellant to support the contrary view. It is said that in Cox v. U. S., 6 Pet. 172-203, it is held that the “liability of the parties must be governed by the rules of the common law.” And, to the same effect, we are cited to Duncan’s Heirs v. U. S., 7 Pet. 435. Neither of these cases, to our minds, affords the •slightest reason for holding that we have a national common law. The first case was an action upon a bond executed to the United States by a navy agent and his sureties, in the state of Louisiana, conditioned that the agent would faithfully account for public moneys which came into his hands. Suit was brought by the government, in the state of Louisiana, for a breach of the bond, in the United States district court. Under the Louisiana law the United States would have been entitled to take judgment against each surety only, for his proportion of the bond, and the trial court applied that rule. The supreme court of the United States held that liability was to be determined by the place of performance of the contract, and applied the common-law rule, because, by act of congress, the common law was in force in the District of Columbia, — the place -of performance of the contract. The other case was decided on the same principle. Swift v. Tyson, 16 Pet. 1, was a case touching negotiable paper, and the court said: “But, admitting the doctrine to be fully settled in New York, it remains to be considered whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed, or ancient local usage, but they deduce the doctrine from the general principles of the commercial law.” Now, there was nothing in this case indicating that the court decided this case on the theory that there was a national common law. On the contrary, the New York court had based its decision on the general principles of commercial law. What commercial law? Why, manifestly, as interpreted by the courts of that state, as applicable in that jurisdiction. The federal court held it was not bound by such interpretation of the state court. To the same effect are, the cases of Oates v. Bank, 100 U. S. 239, and Brooklyn City & N. R. Co. v. National Bank of N. Y., 102 U S. 14. Fenn v. Holme, 21 How. 481, relates to the forum — law or equity — of the trial, and not to the ascertainment of rights as given at common law. Railroad Co. v. Lockwood, 17 Wall. 357, involved no question of interstate commerce. Lockwood, who was injured, was being transported upon a free pass from Buffalo to Albany, both places being within the same state. It was held that the question of the power of the carrier to exempt itself by contract from liability placed upon it at common law was to be decided by the federal court upon the grounds of public policy. And it was expressly said in a later case that the law applied in Lockwood’s Case was the law of the state of New York. Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. Rep. 564. In Kohl v. U. S. 91 U. S. 367, the main question was whether the proceeding to condemn property by the general government was a suit at common law. The opinion is to> the effect that power was conferred by acts of congress to condemn, but no machinery or method by which condemnation should be made had been enacted. The question was whether, in the absence of express legislation, the government had power, by proceeding at common law, to perfect condemnation. By a reading of the opinion, it will be observed that the existence of the power or right to condemn was given or existed outside of the common law, and the discussion turned upon the question as to whether the exercise of the right should or should not be according to the course of the common law, — a question as to the means of exercising the right, and not as to determining the existence of it. It was a question, in other words, pertaining to the remedy, not the right. The case of Atchison, T. & S. F. R. Co. v. Denver & O. R. Co., 110 U. S. 667, 4 Sup. Ct. Rep. 185, does not necessarily involve the question of interstate commerce. The court says that the constitution, of Colorado, prohibiting discrimination “within the state,” imposes no greater obligation upon the company than the common law would have done. At most, the holding in this case seems to be to the effect that, so far as transportation wholly within the state was concerned, in the absence of legislative regulation, the railway company would owe such duties to the public as-the common law, or some custom having the force of law, had established for its government. We discover-no grounds for claiming that the common law referred to in the opinion was any other than that of the state of Colorado. In Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. Rep. 914, it is said: “But, passing beyond the matter of authorities, the question is essentially one of general law. It does not depend upon any statute; it does not spring from any local usage or custom; there is in it no rule of property; but it rests upon those considerations of right and justice which have been gathered into the great body of rules and principles known as the ‘common law.’ There is no question as to the power of the state to legislate, and change the rules of the common law, in this respect, as in others, but in the-absence of such legislation the question is> one determin able only by the general principles of that law.” Now if this common law referred to in the foregoing opinior is susceptible of being abrogated by the legislature oi the state, as is held, then, clearly, the writer did' not refer to a national common law at all. If the language used refers to a national common law, it is a holding that a state legislature might abrogate and render ineffective such laws, and if such a doctrine were followed to its logical result, and applied to the case at bar, it ■would amount to saying that although there was a national common law, as a system of jurisprudence, of the general government, by means of which a right was given plaintiff for redress in this case, still the state, ■at its election, could step in and deprive the suitor of • such right, though we apprehend that, if such right was so given by virtue of a national system of jurisprudence adopting the common law for the general government, the state could no more interfere with it, if it pertained to a matter over which the general government had exclusive jurisdiction, as interstate commerce, than it could successfully set aside the express will of congress, as evidenced by the existing interstate commerce act. It is quite clear that the words “common law,” used in the opinion, refer to the common law as enacted, adopted, or recognized by the individual states. In Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. Rep. 564, it is said: “There is, however, one clear exception to the statement that there is no national common law. The ■ interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction, which, therefore, is gradually formed by the judgments of this court, is' the application of the constitution, and the daws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied! in the subject, and constitutes a common law resting on. national authority.” In the same case it is said: “A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular state. * * * This is illustrated by the case of Railroad Co. v. Lochwood, 17 Wall. 357, where the common law prevailing in the state of New York in reference to-the liability of common carriers for negligence received a different interpretation from that placed upon it by the judicial tribunals of the state; but the law, as-applied, was none the less the law of that state.” Now, the common law above spoken of, which rests upon national authority, is not that which existed at the time of the adoption of the constitution; nor can it be, in the light of the language used by the court, a common law which is vitalized into life by the statutes or decisions of the several states. There is, however, nothing in the language used justifying the contention that such a common law as the learned justice speaks of could interfere with the constitutional power of congress to regulate interstate commerce. Reference is also made to the case of Railway Co. v. Osborne, 10 U. S. App. 430, 3 C. C. A. 347, 52 Fed. Rep. 912. In speaking of the condition of affairs prior to the enactment of the interstate act, the court said: “It was the first effort of the general government to regulate the great transportation business of the country. That business, though of a quasi public nature, and therefore subject to governmental regulation, had, as a matter of fact, been carried on by private capital, through corporations. The fact that it Was of a quasi public nature always prevented the owners of capital invested in it from charging, like owners of other property, any price they saw fit for its use. A reasonable compensation was all that they could exact, and he who felt aggrieved by. any charge could invoke the aid of the courts to protect himself against it.” Whatever construction may be placed upon this language is a matter of no moment, as the case itself did not involve any question of interstate transportation prior to the taking effect of the interstate commerce act. It is, therefore, not authority for plaintiff’s contention. We do not see that the case of Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. Rep. 75, sustains appellant’s contention. That was a case wherein it was held that the equity jurisdiction of the federal courts is uniform throughout the country, and that such jurisdiction is not to be determined by any state rule or law statute, civil or common law. Moore v. U. S., 91 U. S. 270, simply decides that as to the court of claims, in the absence of other provisions by congress, the rules of evidence as found in the common law should govern the action of the court. No interstate question was involved. No question of whether there was a national commop law which conferred a right was in the case. To the same effect is U. S. v. Clark, 96 U. S. 37. It must he conceded that there have been many cases in which the United’ States supreme court has •determined contracts to be against.' public policy. Oscanyan v. Arms Co., 103 U. S. 261; Marshall v. Railroad Co., 16 How. 314; Tool Co. v. Norris, 2 Wall. 45; Trist v. Child, 21 Wall. 441; Hannauer v. Doane, 12 Wall. 342; Thomas v. City of Richmond, Id. 349; Woodstock Iron Co. v. Richmond & R. Extension Co., 129 U. S. 643, 9 Sup. Ct. Rep. 402.

9 We cannot take up and consider every case cited, but it may be profitable to speak of some other cases relied upon by appellants. Counsel rely upon the following language found in Bucher v. Railroad Co., 125 U. S. 580, 8 Sup. Ct. Rep. 974: “There is no common law of the United States, and yet the main body of the rights of the people of this country rest upon, and are governed by, principles derived from the common law of England, and established as the laws of the different states.” Here is a clear recognition of the fact that the only common law in this country is that established or recognized by the several states. Further on in the same case it is said: “When, therefore, in an ordinary trial in an action at law- -we speak of the common law, we refer to the law of tilt state as it has been adopted by statute, or recognized by the courts, as the foundation of legal rights.” We are referred to the case of Cook v. Railway Co., 40 Iowa, 557 (46 N. W. Rep. 1080). That was a case in its facts, like the one at bar, except the question made by the demurrer in this case was not raised in that case. We cannot, therefore, treat that case as determining the question of the existence of a national common law. The case was based upon a common-law liability, it is true, but its applicability to an interstate shipment as a rule of national law was not involved. A multitude of cases from state courts might be cited touching the common-law rule applicable to common carriers. As, however, they do not involve a consideration of the question of such liability as applied to interstate shipments, they shed no light upon the question under consideration, and we do not discuss them. Counsel claims that the case of Fuller v. Railway Co., 31 Iowa, 208, 209, is decisive of the .question presented. That case was affirmed by the United States supreme court in 17 Wall. 560. That case involved the question as to the validity of a statute of this state which required railroad companies to fix rates, and post copies thereof at stations and depots. In the course of its opinion the federal court said: “In all other respects, there is no interference. No other constraint is imposed. Except in these particulars-, the company may exercise all its faculties as it shall deem proper. No discrimination is made between local and interstate freights, and no attempt is made to com trol the rates that may be charged. If the requirements of the statute had in question werej as contended by the counsel for the plaintiff in error, regulations of commerce, the question would arise whether, regarded; in the light of the authorities referred to, and of reason and principle, they are not regulations of such a character as to be valid until superseded by the permanent action of congress.” If the above stood as the judgment of that court, without modification, there might be reason for claiming that a state statute regulating rates might be effective in the absence of national legislation as to interstate shipments. But that question seems to be finally set at rest, against appellant’s contention, in the case of Wabash Ry. Co. v. People of Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4, and other cases referred to. Now, the case of Hart v. Railway Co., 69 Iowa, 490 (29 N. W. Rep. 597), was one where it was-contended that the provision of statute providing, that no rule or regulation contained in any contract of receipt of a common carrier should exempt such carrier from any liability which would otherwise exist, was invalid, as a regulation of commerce. It was held that the law was not open to that objection. That decision was based upon the so-called “Granger Cases,” and others therein cited. These cases are reviewed in the opinion ia the Wabash Railway Case, 118 U. S. 557, 7 Sup. Ct. Rep. 4, and it was-there held that “it is not, and never has been, the deliberate opinion of a majority of this court that a statute of a state which attempts to regulate the fares and charges by railroad companies within its limits,, for a transportation which constitutes a part of commerce among the states, is a valid law.” It is not to be denied that there are expressions to be found in. some of the opinions of the supreme court of the United' States which apparently justify appellant’s contention. Thus, it has been said in some cases that the question of “what constitutes a question of carriage is not a question of local law, upon which the decisions of a state court must control. It is a matter of general law, upon which this court will exercise its own judgment.”' Myrick v. Railway Co., 107 U. S. 109, 1 Sup. Ct. Rep. 425; Robbins v. City of Chicago, 2 Black. 418; Brooklyn City & N. R. Co. v. National Bank of N. Y., 102 U. S. 14; Hough v. Railroad Co., 100 U. S. 213. W e incline to the opinion that in nearly all of the cases relied upon, the common law which is ref erred to in the decisions of the United States courts is that common law adopted by the several states, and that the federal courts in determining questions of a general character, of national importance, will not feel bound to follow the construction of the common law which may have been adopted by the courts of the several states, but will give it their own construction. In such cases, however, they are not administering a national common law, but only that adopted or recognized by the several states. In this view, it may well be said that “the courts of the United States administer the common law in many cases.” Cooley, Const. Lim. page 30. So they do, but it is the common law as existing in the several states. And, in the same view, it is true that “legislative and constitutional provisions are common in the United States, prohibiting discriminations, but are usually regarded as simply declaratory of the common law.”' Southern Express Co. v. St. Louis, I. M. & S. R. Co.,. 8 Am. & Eng. R. Cas. 603, note, 10 Fed. Rep. 869. It is insisted by appellant that the interstate commerce act itself is a recognition by congress of the fact that prior-to.its enactment there existed common-law rights and; liabilities pertaining to interstate commerce, and that by the provisions of said act these rights are saved to. suitors. The section relied upon is section 22 of the act, and it reads as follows: “Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition thereto.” By its express terms, this provision relates to remedies. It is not even intimated that there exist rights conferred by a national common law. Again, the provision is made applicable to statutes as well as remedies at common law. No distinction is made between them, as to their force and effect when either may be applied to interstate commerce. Now, this provision of that statute, that it shall not abridge or alter remedies existing by statute, must refer to such statutes as do not attempt to regulate interstate commerce in violation of the constitutional.provision; and, in like manner, the provision that it shall not alter or abridge remedies existing by common law applies only to such ^common-law rules as do not interfere with such commerce; or the provision may refer to state statutes, or common law adopted by the several states, regulating commerce only within the state.

10 Counsel contend that the common law of the several states is “one entire body or system of law, and its rules and principles are the same,” no matter in what state they may be administered. If it be true that the rules and principles of the common law are the same in all of the states, — a proposition which we think is hardly true, — still it is certain that the same common law is differently construed in different state jurisdictions. Thus, in one state it may be held that the common law did not permit discriminations, and, in another, that it did. Hence it is that we find the federal courts, in certain cases, some of which we have cited, holding, in determining what the common law, as enacted, adopted, or recognized by «he state, is, they will not be bound by the interpretation given thereto by the state courts. Again, it is undeniable that in any state in which the common law may •be in force the legislature may alter it, or set it aside. So, if appellant’s contention is correct, and the common law applicable to each state should control, as to ■regulating charges for interstate commerce, we might ■have one common-law rule affecting such shipments in Iowa, and a different rule in Illinois, or the same rule differently interpreted. The result would be that an act of the carrier of an interstate shipment through Iowa and Illinois might be legal in one state, and illegal in the other. It is manifest that such a state of affairs cannot exist. So, too, in this connection, it may be said that inasmuch as the constitutional right conferred upon congress to regulate interstate commerce is exclusive, — and, as we have shown, it is held that, in the absence of legislation by congress upon the subject it was manifest that congress intended to leave such commerce free and unfettered by any positive regulations. Such intention would be contravened as much by any common-law rules operating as regulations of. such commerce as by an express statute of the state having a like effect. In other words, the power to regulate interstate commerce has, by the federal constitution, been withdrawn, as a subject of legislation, from the several -states, and the constitutional provision seems to us to be equally effective as against such regulations based upon any common-law rule in force in a state. This view, we think, is clearly supported by the •cases heretofore cited.

11 Reliance is placed upon article 7 of amendments to the federal constitution, which provides that: “In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved: and no fact tried by a jury shall be otherwise re-examined in any court -of the United States than according to the rules of the common law.” That article relates only to the federal courts. It establishes the right, so far as the method, of trial is concerned, and, in defining such right, speaks-of suits at common law as distinguished from those in equity. That, it seems to- us, is its only effect.

12 It is said, if, prior to the passage of the interstate commerce act, the rules of .the common law did not govern as to interstate shipments, there was in fact no-law affording redress in such a case as this, and that it is not to be supposed that such is the case. It is to be remarked that until recent years the' idea prevailed that rights súch as are claimed in' the case at bar might be given by the statutes of the-several states until such time as congress should chose-to act. That that idea was incorrect is fully shown im the ease of Wabash, etc., Ry. Co. v. People of Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4,—heretofore referred to. Within a few months after this decision was made, congress passed the interstate commerce act. It may be-conceded that the view we adopt would work a hardship as to cases which arose before the passage of the-interstate commerce act; but, be that as it may, the-want of a proper law giving a right of recovery in cases' like this cannot affect the-proper construction of the ■ provisions of the federal constitution.

We have read with care-the opinion "in the case of Swift v. Railroad Co., 58 Fed. Rep. 858, and in 64 Fed. Rep. 59, decided by the United States circuit court for.the Northern district of Illinois, wherein the precise-question involved in this case is decided, and it is held-that there is no national common law; also the opinion, in the case of Murray v. Railway Co., 62 Fed. Rep. 24, decided by the circuit court of the United States in the North-ern district of Iowa, wherein a contrary conclusion is reached. The federal supreme court, which must finally settle this conflict in opinion, has, as yet,,, not passed upon the question involved in this case. . It bas, however, as we think we have shown, repeatedly declared that there was no common law of the United States. We think the language used in the opinions of that court is absolutely inconsistent with the theory ■contended for, — that the United States, as a nation, has recognized the existence of a national common law applicable to a case like that at bar.

13 There are other reason's which impress us with the ■correctness of the result reached by the lower court, but we must forego a discussion of them. Our conelusion is that there is no national common law; that the state cannot regulate interstate commerce, in the absence of congressional action, either by ■express statutory enactment, or through the medium of the common law which may be recognized as in force in such state; that the right claimed in this case would ■amount to a regulation of commerce between the states, as defined by the federal supreme court, and hence is in contravention of the federal constitution. The demurrer was properly overruled. — Affirmed.