Argument for Plaintiff in Error. 231 U. S. Company during the transportation thereof from Black Rock to Scranton. The title to said hay did not pass to the Railroad Company until it accepted the hay after an inspection thereof at the mines. The acceptance of goods by a buyer is necessary to completely transfer the title. 35 Cyc. 306; Hershiser v. Delone, 24 Nebraska, 380; Stephens v. Santee, 49 N. Y. 35; Kein v. Tupper, 52 N. Y. 550; Cooke v. Millard, 65 N. Y. 352; Nichols v. Paulson, 6 N. Dak. 400; Hathaway v. O'Gorman, 26 R. I. 476; Smith v. Wisconsin Co., 114 Wisconsin, 151. Where there is a contract to sell unascertained goods, no property in the goods is transferred to the buyer until the goods are ascertained (except in the case of a contract to sell an undivided share of goods). See § 17 of the Sales Act; Williston on Sales, § 258. In every case the appropriation must have the assent of both parties, to transfer the property in the goods. See Williston on Sales, §§ 274, 277, 278; Mechem on Sales, §§ 721, 724, 726, 729, 730; Blackburn on Sales, p. 129; Benjamin on Sales, 5th ed., pp. 241, 346, When the seller is required by the contract to deliver the goods to the buyer at some particular place, the presumption is, unless a contrary intention appears, that the property in the goods does not pass until the goods are delivered to the buyer at that place, and accepted by him. See § 19, Rule 5, of the Uniform Sales Act. See also Williston on Sales, § 280; Mechem on Sales, §§ 733, 736; Benjamin on Sales, 5th ed., p. 355; Braddock Glass Co. v. Irwin, 153 Pa. St. 440; Dannemiller v. Kirkpatrick, 201 Pa. St. 218; McNeal v. Braun, 53 N. J. L. 617; Neimeyer Lumber Co. v. Burlington R. R. Co., 74 N. W. Rep. (Neb.) 670; United States v. Andrews, 207 U. S. 229. Upon principle as well as upon the authority of the cases cited, the title to the hay did not pass to the Railroad Company until it accepted the hay after inspection at the 231 U.S. Argument for Plaintiff in Error. mines. Cornell v. Clark, 104 N. Y. 451; Ballantyne v.. Appleton, 82 Maine, 570; Potter v. Holmes, 92 N. W. Rep. (Minn.) 411; Cefalu v. Fitzsimmons, 67 N. W. Rep. (Minn.) 1018; Perkins v. Bell, 1 Q. B. 193, 62 L. J. Q. B. 91. Assuming, however, that the Railroad Company owned the hay in question during the transportation thereof over its railroad from Black Rock to Scranton, the Commodities Clause, in its application to such transportation, was unconstitutional because it deprived the Railroad Company of its liberty and property without due process of law, in violation of the Fifth Amendment. The question here presented has not been passed upon by this court and was not covered by Commodities Cases, 213 U. S. 366. The power to regulate commerce among the States is limited by the Fifth Amendment. Gibbons v. Ogden, 9 Wheat. 1; Monongahela Nav. Co. v. United States, 148 U. S. 336; McCray v. United States, 195 U. S. 27; Adair v. United States, 208 U. S. 161. The limitations imposed by the Fifth Amendment upon the exercise by Congress of the power to regulate commerce are the same as those imposed by the Fourteenth Amendment upon the exercise of the police power by the state legislatures. Freund, Police Power, §§ 65, 66; Twining v. New Jersey, 211 U. S. 78, 101; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410. The Fifth Amendment forbids Congress, in the exercise of the power to regulate commerce, to arbitrarily, unreasonably or unnecessarily interfere with individual rights of liberty and property. The Commodities Clause is an arbitrary, unreasonable and unnecessary interference with such rights, and has no reasonable relation to the accomplishment of any legitimate public object. Union Bridge Co. v. United States, 204 U. S. 364; Lochner v. New York, 198 U. S. 45; Martin v. District of Columbia, 205 U. S. 135, 139; Atlantic Coast Line v. North Carolina Argument for Plaintiff in Error. 231 U.S. Commission, 206 U. S. 1, 20; Hudson County Water Co. v. McCarter, 209 U. S. 349. The Commodities Clause, in its application to the facts of this case, is arbitrary, unreasonable and unnecessary, in that it has no reasonable relation to the accomplishment of any legitimate public object. For the legislative history of the act, see Haddock v. D., L. & W. R. R. Co., 4 I. C. C. 296, and Coxe v. Lehigh Valley R. R. Co., 4 I. C. C. 535. The Commodities Clause, in its application to the facts of this case, deprived the Railroad Company not only of its liberty but also of property. Allgeyer v. Louisiana, 165 U. S. 589; New Haven R. R. Co. v. Int. Comm. Comm., 200 U. S. 361. The last case cited undoubtedly pointed the way to Congress in the enactment of the Commodities Clause. Cong. Rec., Vol. 40, pp. 6618-23, 6680-86, 6693, 6757 and 6758. The history of the act shows that the discrimination which it was the purpose of Congress in enacting the Commodities Clause to stamp out was that which a railroad company could cover up and conceal by the commingled accounts of the two kinds of business, commercial and transportation, and not the transportation by a railroad company of materials lawfully purchased and owned by it, not for sale, but for use in the operation of property owned by it. That kind of discrimination is entirely absent from such transportation. It cannot exist in connection therewith, because the Railroad Company does not deal commercially in the commodities so transported. In this case the transportation by a railroad company of its own commodities to its mines for use in the operation thereof, is free from any evil that might justify the absolute prohibition of such transportation in the public interest. 231 U. S. Argument for the United States. In fact, it is a matter of complete indifference to the public, and every individual shipper, and every one of its competitors in the coal business whether or not the Railroad Company does or does not engage in such transportation, so long as it continues lawfully to own and operate its mines, and the Commodities Clause in prohibiting such transportation has no reasonable relation to the accomplishment of any legitimate public object, but is arbitrary, unreasonable and unnecessary and violates the Fifth Amendment. Mr. Assistant to the Attorney General Todd for the United States: The defendant was the owner of the hay while transporting it from Black Rock to Scranton. Alden v. Hart, 161 Massachusetts, 576; Allen Bethune & Co. v. Maury, 66 Alabama, 10; Ballantyne v. Appleton, 82 Maine, 570; Boothby v. Plaisted, 51 N. H. 436; Burrows v. Whitaker, 71 N. Y. 291; Cefalu v. Fitzsimmons, 67 N. W. Rep. 1018; Chi., I. & L. R. Co. v. United States, 219 U. S. 486; Cornell v. Clark, 104 N. Y. 451; Crofoot v. Bennett, 2 N. Y. 258; Fogle v. Brubaker, 122 Pa. St. 7; Fromme v. O'Donnell, 124 Wisconsin, 529; Gass v. Astoria Veneer Mills, 121 App. Div. (N. Y.) 182; Graff v. Fitch, 58 Illinois, 375; Grimoldby v. Wells, L. R. 10 C. P. 391; Hatch v. Standard Oil Co., 100 U. S. 124; Holmes v. Gregg, 66 N. H. 621; In re Company Material, 22 I. C. C. 439; Kelsea v. Haines, 41 N. H. 246; Kuppenheimer v. Wertheimer, 107 Michigan, 77; Leonard v. Davis, 1 Black (U. S.), 476; Lingham v. Eggleston, 27 Michigan, 324; Louis. & Nash. R. Co. v. Mottley, 219 U. S. 467; Macomber v. Parker, 13 Pick. (Mass.) 175; McCarty v. Gordon, 16 Kansas, 35; McCulloch v. Maryland, 4 Wheat. 316; McNeal v. Braun, 53 N. J. L. 617; Murphy v. Sagola Lumber Co., 125 Wisconsin, 363; Perkins v. Bell, 1 Q. B. (1893) 193; Pierson v. Crook, 115 N. Y. 539; Pope v. Allis, 115 U. S. 363; Potter v. Holmes, 92 N. W. Rep. 411; Riddle v. Varnum, 20 Pick. (Mass.) 280; Star Brewing Co., v. Horst, 120 Fed. Rep. 246; United States v. Andrews, 207 U. S. 229; United States v. Sunday Creek Coal Co., 194 Fed. Rep. 252; Wadhams v. Balfour, 32 Oregon, 313; Weil v. Stone, 69 N. E. Rep. (Ind.) 698; Young v. Winkler, 14 Colo. App. 204. The Commodities Clause is constitutional as applied to the transportation by a railroad, also engaged in production, of articles owned by it and intended for use in its operations as a producer. Hence, it is constitutional as applied to the transportation by defendant of the hay in question. Booth v. Illinois, 184 U. S. 425; Cedar Hill Co. v. Atchison &c. Ry., 15 I. C. C. 75; Commonwealth v. Gilbert, 160 Massachusetts, 157; Encyc. Sup. Court, vol. 11, p. 111, n. 23; Knoxville Iron Co. v. Harbison, 183 U. S. 13; Lemieux v. Young, 211 U. S. 489; New Haven R. Co. v. I. C. C., 200 U. S. 361; Opinion of the Justices, 163 Massachusetts, 589; Otis & Gassman v. Parker, 187 U. S. 606; Powell v. Pennsylvania, 127 U. S. 678; Public Clearing House v. Coyne, 194 U. S. 497; Purity Extract Co. v. Lynch, 226 U. S. 192; Scott v. Reid, 10 Pet. 524; Silz v. Hesterberg, 211 U. S. 31; Slaughter House Cases, 16 Wall. 36; St. Paul Ry. Co. v. Phelps, 137 U. S. 528; Swift v. United States, 196 U. S. 375; United States v. Del. & Hud. Co., 213 U. S. 366; United States v. Goldenberg, 168 U. S. 95; United States v. Lehigh Valley R. Co., 220 U. S. 257. MR. JUSTICE LAMAR delivered the opinion of the court. The Delaware, Lackawanna & Western Railroad Company was indicted for hauling, over its lines, between Buffalo, New York, and Scranton, Pennsylvania, twenty carloads of hay, belonging to the Company, but not necessary for its use as a common carrier. This transportation |