Argument for Plaintiffs in Error. 223 U.S. marked to a destination in another State, and was likewise under the legal obligation to deliver the goods to the succeeding carrier, no inference can be drawn from the mere receipt of the goods that the railroad company intended to contract to carry the goods to destination, because of the existence upon the statute book of the Carmack amendment. Its act was not voluntary, but compulsory, and therefore there can be found no element of intention of adopting the statute as a condition of entering into the employment. The railroad company when this bill of lading was issued claimed the statute was unconstitutional, and a statute claimed to be unconstitutional will not be regarded as inserted in the contract by implication. Cleveland v. Clements Bros. Cons. Co., 65 N. E. Rep. 885; S. C., 59 L. R. A. 775; Palmer v. Tingley, 45 N. E. Rep. 313. The mere failure of the last connecting carrier to deliver the goods at destination was not evidence of a loss of the goods caused by the initial carrier or a connecting carrier. To recover upon a statutory liability, the plaintiff must allege and prove each of the facts essential to establish such statutory liability. 31 Cyc.; Richs v. Reed, 19 California, 551; Blake v. Russell, 77 Maine, 492; Hale v. Miss. P. R. Co., 36 Nebraska, 266; Hall v. Palmer, 54 Michigan, 217. In the Riverside Mills Case, it was conceded that the loss of the goods was due to the negligence of the connecting carrier. The statute as construed and enforced by the Texas courts is unconstitutional because it deprives the defendant of its property without due process of law. It has been held liable not by reason of any fault of its own or the connecting carrier, but as an insurer of the safe delivery of the goods at a destination beyond its line to which it had not contracted for transportation. 223 U.S. Argument for Plaintiffs in Error. The act is unconstitutional because it requires the initial carrier to answer for a wrong done by a connecting carrier for whose act it is in no way responsible, since it is quite impossible that the statute could constitutionally make the connecting carrier the agent of the initial carrier against the will of the latter, and then on the theory of such agency hold it liable for wrongful act of the connecting carrier. Congress cannot, without violating the Fifth Amendment, nor can any state legislature, without violating the Fourteenth Amendment, take the property of one person and give it to another, nor can either legislative body effect this by establishing forms of law with or without notice. Wilkinson v. Leland, 2 Pet. 627, 658; Taylor v. Porter, 4 Hill, 140; Westervelt v. Gregg, 2 N. Y. 202, 212; Holden v. Hardy, 169 U. S. 369, 390; Louis. & Nash. R. R. Co. v. Stock Yards Co., 212 U. S. 132; Smythe v. Ames, 169 U. S. 466; Howard v. Ill. Cent. R. R. Co., 207 U. S. 463. Nor can this legislation be sustained under the commerce clause. The Constitution was intended to establish a harmonious system by which no power was lodged in any department of the Government which could be exercised to the subversion of civil liberty. That power, like all others vested in Congress, is subject to the limitations prescribed in the Constitution. Gibbons v. Ogden, 9 Wheat. 196; Monongahela Navigation Co. v. United States, 148 U. S. 310; Employers' Liability Cases, 207 U.S. 463, 502; Hoxie v. N. Y. & N. H. R. Co., 82 Connecticut, 356. The right to engage in commerce between the States is not a right created by or under the Constitution of the United States. It existed long before the Constitution was adopted. It was expressly guaranteed to the free inhabitants of each State by Art. IV of the Articles of Confederation, and impliedly guaranteed by Art. IV, § 2, of the Constitution of the United States as a privilege Argument for Plaintiffs in Error. 223 U.S. inherent in American citizenship. Slaughter House Cases, 16 Wall. 36, 75; Gibbons v. Ogden, 9 Wheat. 1, 211; Crandall v. Nevada, 6 Wall. 35; Lottery Cases, 188 U. S. 321, 362; Employers' Liability Cases, 207 U. S. 463, 502. This case is governed by the same rules as apply to cases in which it has been held that state legislation imposing rates of tariff confiscatory in character, violate the constitutional requirement of due process of law as invading property rights. Smythe v. Ames, 169 U. S. 466; Lake Shore & M. S. R. R. Co. v. Smith, 173 U. S. 685; Cherokee Nation v. Southern Kansas Railway Co., 143 U. S. 641; Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285, 301. A corporation is a person within the protection of the Fourteenth Amendment. Minneapolis & St. Louis R. R. Co. v. Beckwith, 129 U. S. 26. Although it is under governmental control, that control must be exercised with due regard to constitutional guarantees for the protection of its property. Chicago Street Railway v. Chicago, 142 Fed. Rep. 845. It cannot be said that the connecting carrier is in some sense associated with the said initial carrier because a through rate of freight was stipulated, and therefore the initial carrier may be made liable for a loss occurring on the line of a connecting carrier. A through rate does not necessarily indicate an agreement for a through carriage, and if it did, then the liability of the initial carrier would rest upon his obligation by contract as a carrier over the entire route to destination. It would rest upon the initial carrier's contract and not upon the statute. Penn. Ref. Co. v. West N. Y. & P. R. R. Co., 208 U. S. 208, 222; Chicago & N. W. Ry. Co. v. Osborn, 52 Fed. Rep. 912. The joint liability must result from some contract or agreement which would constitute them joint contractors or partners. Wilson v. L. & N. R. Co., 103 N. Y. App. Div. 203. The remedy attempted to be given by the statute to 223 U.S. Argument for Plaintiffs in Error. the initial carrier against a connecting carrier in case of payment of loss is unconstitutional and therefore the statute is wholly void. Warren v. Charleston, 2 Gray, 84; Pollock v. Farmers' Loan & Trust Co., 158 U. S. 634, 636; Howard v. The Illinois Cent. R. R., 207 U. S. 461; The Trade-Mark Cases, 100 U. S. 82; and see International T. B. Co. v. Pigg, 217 U. S. 113; Smeltzer v. St. Louis & S. F. R. Co., 158 Fed. Rep. 660. If the railroad company came under any obligation to the shipper for the through carriage of the goods, then the court erred in excluding the defense of the release by the shipper of the railroad company from liability for loss or injury to the goods not occasioned by its own negligence or that of a connecting carrier. The Interstate Commerce Commission has expressed the opinion that under this statute a stipulation for exemption from liability for losses due to causes beyond the carrier's control is grounded upon a construction of the words of the statute "caused by it or the connecting carrier." This construction of the statute was also adopted in Greenwald v. Weir, 130 N. Y. App. Div. 696. If this be the true construction of the statute, the court erred in excluding this defense, and this presents a Federal question because the defense was ruled out as being in contravention of the act of Congress of June, 1906. The court below erred in refusing to give effect to the stipulation of the contract making the measure of damages the value and price of the articles at the place and time of shipment. The stipulation that in the event of loss the amount of damages recoverable shall be the market value of the goods at the place and time of shipment, if freely and fairly entered into is valid, although the courts in Texas hold that such a provision is invalid so far as it affects the company's liability for a loss caused by negligence. South ern Pacific Ry. Co. v. Maddox, 75 Texas, 300. This question, being one of general commercial law and not governed by statute, this court will be governed by its own decisions and the reasons which control its action. Michigan Cent. Ry. v. Myrick, 107 U. S. 102; N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 357; Hart v. Penna. R. R. Co., 112 U. S. 331; Matter of Released Rates, 13 I. C. C. 559. It was not the purpose of the Carmack amendment to change this rule of law. The right of action was created by the statute and jurisdiction to entertain it was conferred exclusively upon the Federal courts. The state courts have not concurrent jurisdiction with Federal courts of suits brought on a statutory liability under the Interstate Commerce Law. The jurisdiction is exclusively in the Federal court. Sheldon v. Wabash R. R. Co., 105 Fed. Rep. 785; Van Patten v. Chicago, M. & St. Paul R. Co., 74 Fed. Rep. 901; Northern Pacific Ry. Co. v. Pacific Coast Lumber Mfrs. Assn., C. C. A., 165 Fed. Rep. 1, 9. Since the right of recovery rests upon a Federal statute, a Federal question is necessarily involved. Schlemmer v. Buffalo R. & P. Ry. Co., 205 U. S. 1; Hoxie v. N. Y. & N. H. R. R. Co., 82 Connecticut, 356. There was no appearance or brief filed for defendants in error. MR. JUSTICE LAMAR delivered the opinion of the court. In both these cases the plaintiff in error was held liable as "initial carrier" for failure to deliver mohair shipped from points in Texas to the consignee in Lowell. The company denied liability on the ground that under the contract expressed in the bills of lading its obligation and liability ceased when it duly and safely delivered the goods |