In the absence of congressional regulation the common law of the States controls with reference to the so-called common-law rights, duties, and responsibilities of interstate carriers. These rights and duties which relate to reasonableness of service, impartiality of treatment of shippers, liabilities either contractual or in tort for injuries to passengers or freights, etc., have, in many instances, it is apparent, more than a local significance and effect, and it is, therefore, somewhat difficult to justify, upon principle, the constitutional authority of the States in these respects. Practical necessity and convenience seem, however, to have de-manded that this validity should be ascribed to the common law of the States, for otherwise, in the absence of congressional regulation, there would be no law whatever for the courts to apply.37

36 Quoted with approval in Western Union Tel. Co. v. New Hope, from opinion of the court in Philadelphia v. W. U. Tel. Co., 32 C. C. A. 246.

37 That there is no federal common law which, in absence of congressional statute, can be made use of is fairly certain. Cf. United States v. Worrall, 2 Dall. 384; 1 L. ed. 426; Wheaton v. Peters, 8 Pet. 591; 8 L. ed. 1055. But see Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92; 21 Sup. Ct. Rep. 561; 45 L. ed. 765.

In Murray v. Chicago & N. W. Ry. Co.38 the argument ab incon-venienti is adopted as controlling.

The doctrine that in the absence of congressional action, these common-law principles should apply even with reference to interstate commerce carriers was declared in a number of cases, and without serious dissent;39 but in Western Union Tel. Co. v. Call Pub. Co.40 the point was pressed that the giving to state law an operation over interstate commerce with reference to matters not purely local was unconstitutional. The court reaffirmed the doctrine, but as will appear from the following quotations from its opinion, upon no stronger grounds than convenience and necessity. The court say:

"The contention of the telegraph company is substantially that the services which it rendered to the publishing company were a matter of interstate commerce; that Congress has sole jurisdiction over such matters, and can alone prescribe rules and regulations therefor; that it had not, at the time the services were rendered, prescribed any regulations concerning them; that there is no national common law, and that whatever may be the statute or common law of Nebraska is wholly immaterial ; and that, therefore, there being no controlling statute or common law, the court erred in holding the telegraph company liable for any discrimination in its charges between the plaintiff and the Journal Company. . . . The logical result of this contention is that persons dealing with common carriers engaged in interstate commerce and in respect to such commerce are absolutely at the mercy of the carriers. It is true, counsel do not insist that the telegraph company or any other company engaged in interstate commerce may charge or contract for unreasonable rates, but they do not say that they may not; and if there be neither statute nor common law controlling the action of interstate carriers, there is nothing to limit their obligation in respect to the matter of reasonableness. We should be very loth to hold that in the absence of congressional action there are no restrictions on the power of interstate carriers to charge for their services; and, if there be no law to restrain, the necessary result is that there is no limit to the charges they may make and enforce. . . . Common carriers, whether engaged in interstate commerce or in that wholly within the State, are performing a public service. They are endowed by the State with some of its sovereign .powers, such as the right of eminent domain, and so endowed by reason of the public service they render. As a consequence of this, all individuals have equal rights both in respect to service and charges. ... To affirm that a condition of things exists under which common carriers anywhere in the country, engaged in any form of transportation, are relieved from the burdens of these obligations, is a proposition which, to say the least, is startling. . . . Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment.41

38 62 Fed. Rep. 24.

39 Interstate Commerce Com. v. B. & O. R. R. Co., 145 U. S. 263; 12 Sup. Ct. Rep. 844 : 36 L. ed. 699; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; 23 L. ed. 872; Murray v. C. & N. W. R. R. Co., 62 Fed. Rep. 24.

40 181 U. S. 92; 21 Sup. Ct. Rep. 561; 45 L. ed. 765.