[116]*116OPINION.
BOND, J.
(After stating the facts as above).—
Powers and Pubnc9service commission, I. It is insisted in support' of the orders of the Public Service Commission: First, that the only judicial review to which they are open is jurisdiction of the board or its “power to make the order,” and that nothing beyond this is presented by the writ of certiorari or review under the terms of the statute (Laws 1913, p. 641, sec. 111); second, that the transportation in question was wholly one of intrastate dealing.
Taking these contentions in order: we are not impressed with the soundness of the first. The Public •Service Commission was created eo nomine by the Legislature of 1913. [Laws 1913, p. 556, secs. 1 to 40 inclusive.] The design of the act was to create an administrative agency of the lawmaking power. The board of commissioners thus established were not intended to be vested with the essential functions and powers of a court of law and equity, for under the express provisions of the Constitution of Missouri, the Legislature could establish courts only in the classes of cases, and in the manner and to the extent provided by that instrument, and the board does not fall under the head of any of the courts described in the Constitution. [Constitution of Missouri, art. 6, secs. 1, 28, 31; State ex rel. v. Nast, 209 Mo. 708; State ex rel. v. Fort, 210 Mo. 512; State ex rel. Haughey v. Ryan, 182 Mo. l. c. 355; State ex rel. v. Woodson, 161 Mo. l. c. 453.]
Since the Legislature has no power to create a court not falling within the classes specified in the Constitution, nor in any other manner than therein empowered so' to do, it follows that the Public Service Commission is only a representative agency established by the Legislature, whose powers and duties are specifically set forth, none of which include the prerogatives of a court; for neither the Legislature nor any [117]*117of its delegated agencies conld exercise these under our Constitution, and if the act had heen passed for that purpose, it would be void. The findings and orders, which the Public Service Commission is empowered to make, though bearing some resemblance to some of the judicial actions of a court of law and equity, are yet merely incidents of the work of investigation and determination of facts and questions devolved upon that body by the Legislature, and do not imply on its part the possession of any of the essential attributes or machinery of constitutional courts in this State. The Public Service Commission has no power to expound authoritatively any principle of law or equity and has no machinery for enforcing its orders. In reviewing a finding of facts made by the Public Service Commission, we do not accord to them that probative effect which would normally belong to the findings and judgment of a court of law in the course of regular judicial proceedings. In providing for a review, by the present writ, of the findings and orders of the Public Service Commission, the Legislature carefully bore in mind this distinction, and hence by section 111 of the constituting act, it provided for a transfer of the final orders and findings of its administrative agency (Public Service Commission) by writ of review, to the circuit court, for the purpose of testing “the reasonableness or lawfulness” of its actions, and directed the Public Service Commission to certify and transmit all the “evidence and exhibits” introduced before it, to the circuit court, and required that court, in rendering its judgment, to consider without the aid of a jury, only the specific evidence and proceedings upon which the action of the Public Service Commission was based.
The paragraph indicating the scope and method of review thus lodged in the circuit court concludes in the following terms:
“The circuit courts of the State shall always be deemed open for the trial of suits brought to review [118]*118the orders and decisions of the commission, as provided in this act, and the same shall be tried and determined as suits in equity. ’ ’
This latter quotation from the statute is absolutely decisive of the first contention made in support of the action of the Public Service Commission, for it states in express terms that the hearing in the circuit court ‘ ‘ shall be tried and determined as suits in equity. ’ ’ It is perfectly obvious that the power of court review thus provided for in the Aict of the Legislature, makes the hearing in the circuit court, as well as the determination of the correctness of its action on an appeal to' this court, turn solely on the question of the preponderance of the competent evidence" adduced on the original hearing before the P'ublic Service Commission, unaffected, as far as the reviewing courts are concerned, by any conclusions of fact or law arrived at by the Public Service Commission when the matter was undergoing investigation before it.
It is unnecessary to cite precedents as to the nature of trials of suits in equity; for it is an-inwrought principle of equity jurisprudence, antedating and surviving our Constitution, that the chancellor must conform his findings of fact to the preponderance of the competent evidence; and the same rule governs appeals in such actions which are triable de nova in the appellate courts on the evidence contained in the record. Since the statute in so many words makes this rule govern the trial of the proceedings before the Public Service Commission, when brought under review by the courts, it follows that the evidence contained in the present record is fully reviewable by us, and the correctness of the findings of the Public Service Commission and its affirmance by the circuit court, must be tested by the preponderance of proof afforded by the evidence contained in the record. The contention on the part of respondent that the right of review of this court is confined to the question of jurisdiction of the Public [119]*119Service Commission is in the teeth of the terms of the statute and therefore disapproved hy us.
The eases cited from the Federal judiciary are neither in point nor persuasive, for an examination of the acts to which they applied shows that such, acts contained no such provisions for broad court review, as are contained in the act creating the Public Service Commission.
tabHshed" by Evidence. II. Considering, as we must, the probative force of the testimony given before the Public Service Commission, as it should be judged if given in a suit in equity, we find the preponderance of the evidence sustains the following facts. Indeed, they are practically undisputed. That B. Johnson & Son were wholesale dealers in railroad ties, residing and doing business at Richmond, Indiana; that for five or six years prior to July 15,1913, said firm employed an agent in Southeast Missouri to purchase for them railroad ties and to ship them in fulfillment of contracts of sale made with certain railroads, particularly the New York Central and the Rock Island; that the custom was to collect the ties purchased by a tie buyer employed by Johnson & Son, at stations on defendant’s railroad (The Frisco) from whence they would be shipped direct to their place of destination whether within or without this State; that this method of conducting their business was adhered to by complainants prior to the fifteenth of July, 1913; that after that date the tie buyer employed by complainants arranged for permission to them to use a vacant lot of ground lying between the Frisco railroad tracks and the Mississippi River, at Commerce, Missouri, whereon ties bought by him for complainants could be unloaded and inspected and then forwarded by barge or railroad to the purchasers from complainants; that all the ties which had been transported to this Commerce yard, or landing, have been carried by barges to [120]*120Cairo, Illinois, and other points outside the State of Missouri, except a single car which had been sent to St. Louis after the filing of the complaint before the Public Service Commission, and twenty-five hundred ties which remained on the yard or landing at the time the testimony was given. .
The ties so transported for complainants to Commerce were carried under a bill of lading, noting complainants as the consignees, and the freight rate for this carriage was fixed by defendants in accordance with the schedule of rates prescribed by the Federal Interstate Commerce Commission, which was in excess of the rates fixed by statute in this State for intrastate shipments. This was the sole ground of complaint made by B. Johnson & Son before the Public Service Commission.
The evidence of the tie buyer, Tiller, on the point of his knowledge of the destination of the ties which he purchased for complainants, and the purchasers to whom they would be shipped is, to-wit:
“Q. Now, when they sent you out to buy these ties, did they tell you what railroads they were going to? A. Well, this time, since I have been working for B. Johnson, I understood we had contracts with the Rock Island and New York Central lines, and these ties were to be applied on those two contracts.
“Q1. To whom have these ties that have been shipped from Commerce by barge; to whom have they been sent? A. Some of them have been shipped to Wheeling and Lake Erie, some branch of the New York Central System.
“Q. Delivered to them at Cairo? A. All except about four carloads we sold in Cairo after we got there.
“Q. That is because they were rejected by the Wheeling and Lake Erie? A. Yes, sir; No. 2 ties we call them.
“Q. But they were shipped to Cairo for the Wheeling and Lake Erie? A], Yes,
[121]*121“Voice: Make that Lake Erie and Western!
“Q. All right? A. I don’t know.
“Q. That represents all the ties that have been shipped out of Commerce except one car? A. Yes, sir. ... A. What I mean is this: The ties that were shipped to Cairo were sold to the New York Central System; just what particular branch of that system they went to I don’t know about that.”
Complainants claim that the aforesaid' change in the method of shipment after the 15th of July, 1913, was made on their behalf at the instance of their tie buyer, who thought the locality selected would be a convenient depot for assembling ties purchased for them in Southeast Missouri, and thereafter inspecting and assorting them according to the provisions of their respective contracts with the purchasing railroads and then continuing the transportation of the ties from that point .to their ultimate destination, so that each purchaser would receive the kind of ties described in his contract of purchase, and that the location of this yard was convenient in that ties of all description and applicable to any contracts might be taken to that point in carload . lots; whereas if they were to be assorted at the initial point of delivery to the carrier, a delay might ensue before enough ties of the kind called for in a particular contract could be accumulated to make a carload.
Complainants had no. office of any kind, nor any selling representative at Commerce, Missouri, nor was there any evidence whatever that any of its contracts of sale to the purchasing railroad were made at that point. On the contrary, the evidence is clear that the contracts of sale to which the ties shipped to Commerce were applied when they were transported to Cairo and other points, had all been made and entered into prior to the purchase of the ties, and a full description had been given to the tie buyer of the kind of timber and dimensions and size of the ties to be purchased by him to meet these contracts. No work of manufacture or [122]*122preparation of the ties was performed when they were landed at Commerce; they were simply assorted, inspected and sent on to meet the contract calling for them.
III. The only question which can arise under these facts is as to the nature of the shipment of the twenty-five hundred ties yet undelivered, and the one carload which was forwarded to St. Louis after the filing of the complaint. All of the remainder of the ties were shipped outside the State to the particular purchaser, who had contracted for them before they were acquired by plaintiff, and before they were delivered to the complainant railroad for transportation to Commerce, Missouri. "With these exceptions complainants have complied with their contracts to ship to the purchasers outside the State and sent such shipments to them, subject to the inspection of the purchaser’s agents at Cairo, Illinois. The amount of ties thus exported by complainant constitutes the bulk of the large accumulation of ties carried to Commerce. Leaving out of view the single carload sent to St. Louis after bringing the complaint (for the reason that the rights of the parties depended upon the status of their dealings which existed when the complaint was filed and not upon subsequent conditions), and we have this state of affairs; the entire body of ties taken to Commerce, except twenty-five hundred not yet forwarded, have been sent by barges to Cairo, Thebes or East St. Louis, in fulfillment by complainants of contracts of sale of such ties made with railroads outside of the State before any of the ties were delivered to defendant railroad for carriage to Commerce.
In the face of these facts, the Public Service Commission ordered the defendants to treat all future shipments of ties by complainants to Commerce, made under similar circumstances, as part of the dealings of complainants wholly within this State, and therefore to be [123]*123charged for at local statutory rates. If this conclusion is correct, then a non-resident wholesale dealer in railroad ties, who has contracted to sell and transport to a purchaser outside this State ties to be obtained in this State to fill such contracts, may start them on their journey in this State and make a break at a point on the boundary for preliminary assortment and' inspection, and thereafter continue the journey of the ties across the border and deliver them to the agent of the purchaser for final inspection in another State, without paying for that portion of the railroad transportation procured in this State the rate fixed by the Interstate Commerce Act for shipments coming under its regulations.- It must be confessed if this can be done it would open a wide avenue for evasion of the Federal law, both by the shipper and by the carrier. In other words, if a tie sellér having a contract with a non-resident to take all ties of a certain kind and dimension, should go into the interior of this State and purchase ties suitable for filling such contracts, and instead of shipping them direct from the nearest railroad station, should add to them an insignificant amount of other ties, and as thus intermixed, should ship the whole bulk to the border of the State, and then segregate the negligible addition, and promptly forward the others outside the State and should only be charged a lower local rate on the whole bulk of ties while in transportation in this State, a two-fold wrong would be done. The shipper would thus obtain the carriage of the bulk of his commodity, falling strictly within the definition "of interstate dealing, for a portion of its journey at a less charge than fixed by the Federal Law, and the carrier accepting such lower rate would act unfairly to other shippers engaged in interstate shipments without a break in the transportation, by accepting in the supposed case a lower rate of charge than demanded of others.
[124]*124The question, therefore, to he decided is whether or not the facts, as we have heretofore found them to be, entitled the defendat carrier to charge for the ties transported to Commerce, Missouri, the interstate rate for that portion of such ties which were afterwards forwarded by the shipper in fulfillment of his previous contracts with the foreign buyers % This question must be determined by the law as expounded by the Supreme Court of the United States, to which we will now recur.
A leading case is So. Pac. Term. Co. v. Interstate Commerce Comm., 219 U. S. 498. The controversy was whether the Federal board had jurisdiction to regulate ’ the charges of a terminal company at Galveston, Texas, which had leased a wharf to one shipper upon terms that enabled him to get' an advantage over other shippers who were required to pay certain charges for wharfing privileges. The Interstate Commerce Commission ordered the wharf owner to cease giving such preference. The use to which the wharf wás put was to receive cotton-seed cake purchased by the lessees, which was ground into meal on the wharf and then put in sacks and exported to fill certain present and future contracts. The bill to enjoin the order of the commission was dismissed, and an appeal taken to the Supreme Court of the United States, where it was held: First, that the Terminal system owning the wharf was a link in transportation and thus became subject to the jurisdiction of the Interstate Commerce Commission; second, that the fact that the favored shipper caused these products to be billed to Ms own order from interior points in the State of Texas, to. the city of Galveston in the same State, and after receiving them there, unloaded them and changed their form from cotton-seed cake by grinding it into cotton-seed meal, and then sacked the meal and shipped the sacks to fill foreign orders did not make the transportation to Galveston from the initial point in Texas, intrastate commerce; but that such shipments became interstate commerce when they [125]*125were delivered in the form of cotton-seed cake to the initial carrier in the interior of the State.
Again, in Ohio Railroad Comm. v. Worthington, 225 U. S. l. c. 107, the suit was to enjoin the State commission of Ohio from fixing rates for the shipment of coal from interior points in that State to its lake ports under hillings to the shippers ’ orders. The court in its findings of facts, recited, to-wit:
“ ‘There is testimony to the effect that'when the coal leaves the mines it is not known in what vessel it will he loaded nor to what particular ultimate destination it will go, and that sometimes such coal is sold and vessels arranged for after the coal is at Huron, but it is subject to demurrage charge if it remains on the ears beyond a specified time.
“ ‘All coal thus loaded in vessels is, and must practically be, carried to points in other States — or to Canada. The lake ports in Ohio receive coal by rail from interior points, but not by boat from other Ohio ports. It might be that a quantity of coal, so small as to be negligible, is unloaded on one of the Ohio islands in Lake Erie, but no substantial importance is claimed for this circumstance nor could be given to it. ’
“This finding of fact was practically approved and adopted in the Circuit Court of Appeals, and we have no occasion to dissent from its correctness.
“The question thus presented is: Was the Railroad Commission of Ohio authorized to put in force the rate in question as to lake cargo coal? It is not necessary to review the cases in this court which have settled! beyond peradventure that the National Oovernpient has exclusive authority to regulate interstate commerce under the Constitution of the United States; nor to do more than reaffirm the equally well settled proposition that over interstate commerce transportation rates the State has no jurisdiction and that an attempt to regulate such rates by the State or under its author[126]*126ity is void. [Louisville & Nashville Railroad Company v. Eubank, 184 U. S. 27.]
“And an order by a state commission under assumed authority of the State, which directly, burdens or regulates interstate commerce, will be enjoined. [(McNeill v. Southern Railway Company, 202 U. S. 543.]
‘ ‘ The question is, then, one of fact. Does the transportation which the rate prescribed by the Railroad Commission of Ohio covers, constitute interstate commerce? .
“It is contended that this transportation of the coal under the rate fixed by the Railroad Commission is not within the power and authority of the Interstate Commerce Commission under section 1 of the Act to Regulate Commerce, which makes the provisions of the act inapplicable to the transportation of property wholly within one state, and not shipped to- or from a foreign country from or to a state or territory; and, furthermore, that a transportation of the character here in question is only within the jurisdiction of the Interstate Commerce Commission when it is a transportation partly by railroad and partly by water when both are used under a common control, -management or arrangement for a continuous carriage or shipment; and therefore that, the subject-matter in question is left within the state jurisdiction. On the other hand, it is contended that this transportation is within the jurisdiction of the commission under the Act to Regulate Commerce. It is enough to now hold, as we do, that the establishing of the rate in question is an attempt to regulate interstate commerce and is therefore beyond the power of the state or a commission assuming to act under its authority.
“We therefore reach the conclusion that under the facts shown in this case the Railroad Commission, in fixing the rate of seventy cents for the transportation above described, attempted to directly regulate- and control interstate commerce, and, for that reason, the [127]*127enforcement of its order should he enjoined.” (Italics ours.)
Next comes the case of Texas & N. O. Railroad v. Sabine Tram Co., 227 U. S. l. c. 119, where the only-question was whether the shipment of lumber from Ruliff to Sabine (both points of Texas) to shipper’s order, but subsequently exported, was interstate commerce, and hence not subject to a state rate. The modified finding of facts contained the following:
“ ‘Powell & Company purchaséd lumber from other mills in Texas, with which to supply its said sales in part; it did not know when any particular car or stick of it left Ruliff, into which ship or to what particular destination it would ultimately go, or on which sale it %oordd he applied; this not being' found out until its agent, Flannagan, inspected the invoice mailed to and received by him after shipment. Upon inspection of the invoice he determined from the character of the lumber described whether it was suited for one cargo or the other.’ ” (Italics ours).
The court said upon these facts, to-wit (1. c. 126):
“The determining circumstance is that the shipment of the lumber to Sabine was but a step in its transportation to its real and ultimate destination in foreign countries. In other words, the essential character of the commerce, not its mere accidents, should determine. It was to supply the demand of foreign countries that the lumber was purchased, manufactured and shipped, and to give it a various character by the steps in its transportation would be extremely artificial. Once admit the principle and means will be afforded of evading the national control of foreign commerce from points in the interior of a state. There must be transshipment at the seaboard, and if that may be made the point of ultimate destination by the device of separate bills of lading, the commerce will be given local character, though it be essentially foreign.”
[128]*128A judgment for the difference between the State rates and that fixed by the Interstate Commerce Commission was reversed, the court saying (l. c. 130):
“Nor, as we have seen, did the absence of a definite foreign destination alter the character of the shipments. Judgment reversed and case remanded for further proceedings not inconsistent with this opinion. ’ ’
In the ease of Louisiana R. R. Comm. v. Tex. & Pac. Ry. Co., 229 U. S. l. c. 341, the foregoing cases are quoted and approved, and it is said:
“In those eases there was necessarily a local movement of freight, and1 it necessarily terminated at the seaboard. But it was decided that its character and continuity as a movement in foreign commerce did not terminate, nor was it affected by being transported on local bills of lading. The principle enunciated in the cases was that it is the essential character of the commerce, not the accident of local or through bills of lading, which determines F'ederal or State control over it. And it takes character as interstate or foreign commerce when it is actually started in the course of transportation to another state or to a foreign country. The facts of the case at bar bring it within the ruling.” (Italics ours).
Also, in the case of Chi., M. & St. P. Ry. v. Iowa, 233 U. S. l. c. 343, the question arose upon a shipment into Davenport, Iowa, of coal purchased in Illinois. The consignee was a coal dealer, and Davenport, Iowa, was his selling and distributing point. None of this coal was sold prior to its arrival. On that point the finding of the commission and the State Supreme Court was adopted by the Supreme Court of the United States, and was to-wit:
“ ‘The coal was under the control of the consignee and he could sell it in transit or at Davenport or reconsign it to a point on respondent’s railway, or any other railway, at his own discretion.’ ”
The court (Supreme Court of Iowa) said:
[129]*129“That the facts showed that the coal was originally consigned to the coal company in Davenport, that it was there held until sales were made, and that the consignee had taken delivery, paying the freight to the initial carrier and assuming full control. [152 Iowa, 317, 319.]” (Italics ours).
Upon these facts all future sales and deliveries in Iowa were held to he intrastate dealing by the local commission and the State courts. As to which the Supreme Court of the United States said, to-wit:
“The record discloses no ground for assailing this 'finding. . It is undoubtedly true, that the question whether commerce is interstate or intrastate must be determined by the essential character of the commerce and not by mere billing or forms of contract. ’ ’
This ruling was a full recognition and affirmance of all the foregoing cases cited in support of the above statement of the rule, but the facts in the latter case demanded a converse application of the rule, for as shown above, the facts, were that the consignee in Davenport, Iowa, had never sold nor contracted to sell any of the coal which he imported to that point from the coal fields of Illinois, but simply caused it to be brought to himself in Davenport for future sale. He paid the freight in full and took possession of the coal after it arrived in Davenport. This necessarily ended its interstaté transit. He thereafter, as owner of the property, made sales of it to certain other localities in Iowa, and in fulfilling these latter sales, the transaction in the strictest sense of the term, was an intrastate one. Had these shipments been made to Davenport for the purpose of fulfilling previous sales of the coal by the consignee to buyers at other points in Iowa, the transaction in. question would have been an interstate commerce one from the beginning point in Illinois rintil the coal reached its ultimate destination in Iowa, and the break in the journey at Davenport would not, in any respect, [130]*130have affected its character as interstate commerce. This is demonstrated by the above ruling which affirmed and cited all the previous rulings of the Supreme Court of the United States to that effect.
As to the complete immunity of interstate commerce from even the indirect effect of competitive state rates, an advanced ruling is expressed by the opinion of the Supreme Court of the United States (Mr. Justice Hughes) in Houston, E. & W. Tex. Ry. v. United States and Tex. & Pac. Ry. v. U. S., 234 U. S. 342, l. c. 353. It is there held that the paramount power of Congress to control’ interstate commerce extends through its agency (the Interstate Commerce Commission) to the control of intrastate transactions of interstate carriers, where that is necessary to protect interstate commerce. Said the court:
■ “We find no reason to doubt that Congress is entitled to keep1 the highways of interstate communication open to interstate traffic upon fair and equal terms. That an unjust discrimination in the rates of a common carrier, by which one person or locality is unduly favored as against another under substantially similar conditions of traffic, constitutes an evil, is undeniable; and where this evil consists in the action of an interstate carrier in unreasonably discriminating against interstate traffic over its line, the authority of Congress to prevent it is equally clear. It is immaterial, so far as the protecting power of Congress is concerned, that the discrimination arises from intrastate rates as compared with interstate rates. The use of the instrument of interstate commerce in a discriminatory manner so as to inflict injury upon that commerce, or some part thereof, furnishes abundant ground for Federal intervention. Nor can the attempted exercise of state authority alter the matter, where Congress has acted, for a state may not authorize the carrier to do that which Congress is entitled to forbid and has forbidden.”
[131]*131The point for decision in that case arose out of the fact that there was a sharp competition between, the city of Shreveport, Louisiana, and certain cities in the interior of Texas, for the business of certain towns lying between the two competing points. The Interstate Commerce Commission has fixed the rates from Shréveport, Louisiana, to the competitive points. The Texas law had fixed an intrastate rate which permitted the carriage of similar products from other cities in Texas the same distance as Shreveport front the competitive points, at a lower rate than that fixed by the Federal board. Thereupon the latter (Interstate Commerce Commission) required the railroads using the lower state rate to equalize their charges, and to desist from discrimination resulting from using* the local state rate. The Supreme Court affirmed the validity of that order in the following* language:
“It is also clear that, in removing the injurious discriminations against interstate traffic arising* from the relation of intrastate to interstate rates, Congress is not bound to reduce the latter below what it may deem to be a proper standard, fair to the carrier and to the public. Otherwise, it could prevent the injury to interstate commerce only by the sacrifice of its judgment as to interstate rates. Congress is entitled to maintain its own standard as to these rates, and to forbid any discriminatory action by interstate carriers which will obstruct the freedom of movement of interstate traffic over their lines in accordance with the terms it establishes.
“Having this power, Congress could provide for its execution through the aid of a subordinate body; and we conclude that the order of the commission now in question cannot be held invalid upon the ground that it exceeded the authority which Congress could lawfully confer.”
It was accordingly, ruled that the order of the commission requiring in substance the discriminating rail[132]*132road to charge a higher rate for intrastate carriage than fixed by the local statute, thereby ceasing its discrimination against Shreveport, Louisiana, should be obeyed. To the same effect: Railroad v. United States, 205 Fed. 380 and 391; Intermountain Rate Cases, 234 U. S. 476. The decision of the Supreme Court in the Shreveport case, and its previous ruling in the Minnesota Rate Cases, 230 U. S. l. e. 433, have been made the themé of a learned discussion of the evolution of the law under the commerce clafise of the Constitution. The writer analyzes all the decisions from Gibbons v. Ogden, 9 Wheat. l. c. 222, to the cases cited. [Harvard Law Review, Nov. 1914, page 34 et seq.] This article is accurate and instructive in its historical review, though critical in commenting on the decisions in Minnesota Rate Cases and the Shreveport case, supra. These decisions, however, are the final word on the subject of the power of Congress under the commerce clause of the Constitution and are but the corollaries of the rulings in the Minnesota Rate Cases, to-wit:
First. ‘ ‘ The grant in the Constitution of its own force,' that is, without action by Congress, established the essential immunity of interstate commercial intercourse from the direct control of the states tvith respect to those subjects embraced within the grant which are of such a nature as to demand that, if regulated at all] their regulation should be prescribed by a single authority. It has repeatedly been declared by this court, that as to those subjects which require a general system or uniformity of regulation, the power of Congress is exclusive. ’ ’
Second. “In other matters, admitting of diversity of treatment according to the special requirements of local conditions, the states may act within their respective jurisdictions until Congress sees fit to act; and, when Congress does act, the exercise of its authority overrides all conflicting state legislation. ”'
[133]*133Third. ‘ ‘ The principle which determines this classification, underlies the doctrine that the states cannot under any guise impose direct burdens upon interstate commerce. For this is but to hold that the states are not permitted directly to regulate or restrain that which from its nature should be under the control of the one authority. and be free from restriction save as it is governed in the manner that the national legislature constitutionally ordains. ’ ’ [Minn. Rate Cases, 230 U. S. l. c. 400.]
Fourth. Subject to the above limitations, “the completely internal commerce of a state then may be considered as reserved for the state itself.” [Gibbons v. Ogden, 9 Wheat. l. c. 195.]
■ The foregoing rulings may be condensed, to-wit:
1. As to those subjects of interstate commerce which require a general system or uniformity of regulation, the power of Congress is exclusive whether exercised or not. This exclusive power results from the mere grant in the Constitution.
2. As to those subjects which do not fall in this class but owing to local conditions may be regulated by two authorities, the states may act until Congress does, but when Congress acts it obliterates all state legislation on the subject. In these cases the power of Congress becomes exclusive only when exerted.
3. The reason for this distinction is that interstate commerce proper, requiring for its protection singleness of regulation, if regulated at all, must be regulated by that authority (Congress) to which the Constitution has granted the power.
4. As to subjects purely local and whose regulation does not directly or indirectly affect interstate traffic, full power to deal with them is reserved to the several states.
Applying the foregoing decisions to the facts in this case, the sole question presented is: what was the “essential character” of the shipments of ties over de[134]*134fendant’s railroad? In order to determine this question it is important and necessary to ascertain:
1. "What was the motive or intention of the shipper?
2. And what was the object and purpose to which the shipment was devoted? These two tests necessarily determine the nature of the shipment as being.interstate or intrastate, and they were had in mind in each of the foregoing cases wherein the court passed upon that question.
In the Galveston case the intention of the shipper and the object of the shipment (export) were held sufficient to show that the carriage of cotton-seed cake from other localities in Texas to the wharf at Galveston, although transported under a bill of lading to the shipper’s order, and although delayed at Galveston until it could be milled and ground into meal and sacked and forwarded to shipper’s order, was from its initial point of delivery to the carrier a movement in interstate commerce. In one respect the shipments of the ties presents a stronger case, for in that matter the undisputed testimony shows that the great bulk of those consigned to the shipper’s order from other localities in Missouri to the barge landing place at Commerce, were intended, after assortment, to be forwarded out of the State to fill previous contracts made for their purchase, and that fact did not exist in the Galveston case, for it was shown in that case that the buyer of cotton seed cake did not know to whom the manufactured product thereof (meal) would be sent after he had caused it to be brought to and delivered to himself at Galveston. It is evident as to the shipments from Commerce, Missouri, to points outside this State, the ruling in the Galveston case is clearly controlling. Equally decisive is the Worthington case, 225 U. S. 101, supra. That case related, as appears from the above statement of facts, to coal shipments from the interior of Ohio to its lake ports, whence the coal, or the bulk of it (for it appeared [135]*135in the facts in that ease that a small quantity of the coal was unloaded finally on one of the Ohio islands in Lake Erie), was intended to he transshipped in lake boats to some distance outside the State of Ohio, but neither the boat nor the ultimate destination were known when the coal was delivered to the initial carrier in the interior of Ohio. However, it was held that the movement in interstate commerce began at the point of delivery to the first railroad carrier, and that the State of Ohio could fix no rates governing the charges from that point to the lake port. In the case at bar it was known when the ties were purchased and before they were delivered to the initial carrier, that the bulk of them, after assortment at Commerce, Missouri, to fill existing orders, would be thence transported by barge or interstate carrier outside the State. The case at bar is, therefore, stronger on the point of previous knowledge of ultimate destination — coupled with intention on the part of the shipper — than was the case of the coal shipped in Ohio. It will also be .noted that the fact that a negligible quantity of the coal was disposed of finally on one of the Ohio islands, did not alter the interstate character of the great bulk of the commodity. In the ease at bar the evidence shows that, except twenty-five hundred ties remaining at Commerce, and which, as far as the evidence in this case goes, may yet be shipped abroad, and, except one carload which complainants caused to be sent to St. Louis after filing their complaint, the entire purchase of ties made by plaintiffs in Southeast Missouri, has been transported to other states and delivered to the parties who purchased it before the shipment began. In dealing with the doctrine of these two cases and the Sabine case (227 U. S. 111), which were all that were brought to the attention of the Public Service Commission when this matter was heard by it (the later cases hereinbefore analyzed were not before that body), it used the following language:
[136]*136“A close study o’f the doctrine announced in these cases leaves the complainants hut a narrow margin upon which to stand in order to distinguish this case on solid grounds and thus escape an adverse ruling.”
We gather from a further statement in the opinion of the Public Service Commission that it thought the present case could be differentiated from those called to its attention, because the ties were not “homogeneous,” for on that subject their opinion uses this language :
“But in each of these three cases the cargo was homogeneous, so there was no difference in quality or kind. The same product shipped and unloaded at the intermediate point could be, and was, without anything further being done, simply re-loaded in the conveyance of the new carrier to be continued on its journey.”
The only distinction between the ties was in the quality or kind of wood from which they were cut. They were all homogeneous in the sense that they were manufactured of wood of the same sizes and dimensions, and for the same uses. The inspection and assortment at Commerce was only for the purpose of adapting' the ties to the respective requirements contained in the contracts as to wood out of which they should be made. No work or manufacture of any hind was performed on any of these ties at Commerce, Missouri. Nothing but a bare assortment after preliminary inspection.
The above quotation is in error in another respect, to-wit: “nothing being done to the product.” In the Worthington case, the shipper had not sold the cottonseed cake, but intended to sell meal, a future product thereof, and he did no work on the original shipment, for he ground it into meal. We do not think that the distinction thus attempted by the Phblic Service Commission can be supported on any “solid ground.” There is also a further statement in the opinion of the Public Service Commission, to-wit:
[137]*137“And it can make no difference in law, under the conditions of this case, that the shipper kneiv and intended at the very beginning that these ties would eventually go out of the State. Knowledge and intention become factors only in connection with the actual final movement, and not in connection with a local movement, which is merely preliminary or anticipatory of a shipment beyond the limits of the State. ’ ’ (Italics ours).
This view is not in accord- with the controlling decisions of the Supreme Court of the United States, for, as has been shown, a determinating factor in the mind of the court in the cases in which it has passed upon the nature of the shipment, arose upon the evidence disclosing that it was the intention of the shipper at the original point of delivery that the commodity in question should be a part of interstate commerce, and where such intention has been coupled with an existing contract for the sale of the goods to an outside buyer, it has been held to be conclusive of the fact that the shipment of the commodity from the beginning point was an interstate one and, therefore, not subject to the rates fixed by the local legislature or a local state board. Both of those conditions existed according to the undisputed evidence as to all the ties shipped to Commerce, with the exception heretofore noted.
It necessarily follows that the carrier in this instance was entitled to interstate rates on that portion of the ties which were carried by it to Commerce, and afterwards sent out of the State in fulfillment of the shipper’s contract, for these were interstate shipments in the strictest sense of the term. And to the extent that the order of the Ptiblic Service Board prohibited the defendant carrier, without distinction, from charging interstate rates on any of the ties shipped to Commerce, it was clearly erroneous. The proper order which the board should have made in the matter of the complaint will be discussed in a later paragraph of this opinion.
[138]*138Private Connecting Carrier. IV. But the opinion of the board sets forth another ground for the sustention of its general order, and this ground seems to be chiefly relied- on by its learned counsel in his supplemental brief. This second ground is that by the terms of . ° the Interstate Act, the jurisdiction or that board does not embrace interstate transportation when all its connecting carriers are not “under a common control, management or arrangement for a continuous carriage of the shipment.” What was obviously meant by the act in the use of that language was that the Interstate Commerce Commission could not fix rates covering the whole distance the goods are carried, unless the connecting carriers were all of the class specified in the act and there was. some arrangement between them for a continuous carriage or shipment. Whether, under that clause of the act the Interstate Commission could not validly prescribe the- rates for the portion of transportation performed by the public carriers subject to its control, need not be decided. It is sufficient to say that whatever may be the interpretation of that part of the act, it cannot affect the nature of the shipment itself as being one of interstate commerce, provided it is made under conditions essential to give it that character. For if a shipment be shown to have the essential attributes of a movement in interstate commerce, then that fact will, of itself, render the rates covering intrastate commerce inapplicable and void as to it. The question is not one of jurisdiction of the Interstate Commerce Commission, or its power to fix rates for private carriers, but is one as to the nature of the shipment itself. When once that is established as being interstate, then the power of any state to prescribe rates for its transportation is precluded by the provision of the Constitution granting to Congress'exclusive control over interstate commerce and all its instrumentalities. And this exact point as to the immunity of interstate commerce in any of its stages and [139]*139through any of its agencies from state control, is sustained in the clearest and most positive terms by the quotations hereinbefore made from the Supreme Court of the United States in the Shreveport rate cases, and other later cases cited in this opinion, which were not published when the Public Service Commission made its ruling in this matter. It is evident the order of the Public Service Commission of this State cannot be sustained on this theory, that the bargeman at Commerce who took the product across the river was not a public interstate carrier.
Order: Discrimination Between Interstate and Intrastate Shipments. V. For the foregoing reasons, the omnibus order applying intrastate rates to all transportation of ties by the defendant carrier for the complainant between interior points in Missouri and the wharf landing secured by complainants at Commerce, Missouri, is erroneous, and if permitted to stand in its entirety, would necessarily work, under the facts in this record, an evasion of the rates fixed by the Interstate Commerce Commission, and a discrimination in favor of complainants against other shippers of similar products beyond the borders of the State.
Full and complete justice can be done to the parties to this controversy and the command of the Constitution obeyed, by.a proper modification of the order made by the Public Service Commission, so that it shall read that the defendant carrier shall charge the complainants the intrastate rate fixed by the Legislature of Missouri as to any ties carried from interior points to Commerce, Missouri, which the complainants shall separate there from those sent out of the State in fulfillment of their contracts, and shall subsequently deliver to a bona-fide purchaser in this State at some locality in this State. Such a disposition of the matter will afford the complainants the full benefits of their place of landing for [140]*140their ties on the river hank at Commerce, Missouri, if established for a lawful purpose, and will make it the duty of the carrier to observe the law and treat all shippers alike. Besides it will furnish a conclusive test of complainants’ good faith in conducting their shipments of railroad ties, for it 'frill secure to them the state rates from the beginning point to final destination of all ties sent to Commerce in fulfillment of contracts to sell and deliver in this State, and require them to ..pay the interstate rate only on ties carried there in fulfillment of contracts to deliver outside of this State. If their new plan was adopted in good faith they will thus obtain the full benefit of it; if the event should show otherwise, then it ought not to prosper.
The judgment of the circuit court is reversed and the cause remanded with directions to that court to enter a judgment setting aside and quashing the order of the Public Service Commission, and to remand the complaint herein to that body for further disposition.
Faris and Revelle, JJ., concur; Blair, J., concurs in separate opinion; Walker, J., concurs in paragraph one and dissents as to result; Woodson, C. J., dissents in separate opinion in which Graves and Walker, JJ., concur.