Argument for the United States.

213 U.S.

The prohibitions contained in this statute do not prevent its constituting legislation which Congress may enact under the commerce clause of the Constitution.

Congressional power over commerce among the States is analogous to the same power over foreign commerce. Crutcher v. Kentucky, 141 U. S. 57; Brown v. Houston, 114 U. S. 622, 630; Gibbons v. Ogden, 9 Wheat. 1, 192.

The recognized powers as to foreign commerce, such as laying an embargo as to products of other nations in a time of peace, and the power to forbid and punish introductions of coins of foreign nations, illustrate Congressional power to forbid transportation of commodities from State to State, under circumstances requiring such prohibition in the national interest. United States v. Marigold, 9 How. 560, 566.

Interstate railroads are peculiarly subject to regulation, by reason of their performance of public functions and duties. They are vested with public rights to enable them to serve public interests as common carriers, and Congress has the power to divorce their public duties as such public servants from their private interest in carrying their own products. New Haven R. R. v. Interstate Com. Comm., 200 U. S. 361; Cherokee Nation v. South Kansas R. R. Co., 135 U. S. 657.

The question of the reasonableness or of the wisdom of the enactment is not for the courts but for the legislature. Silz v. Hesterberg, 211 U. S. 31, 40; State v. Hyman, 98 Maryland, 618, 619; City of Baltimore v. Radecke, 49 Maryland, 217, 229, 230.

Arguments ab inconvenienti are not to be considered unless the language of the act be ambiguous. Ex parte Kearney, 7 Wheat. 38, 44; Beardstown v. Virginia, 76 Illinois, 34; Greencastle v. Black, 5 Indiana, 557; Smith v. Thursby, 28 Maryland, 244; Henshaw v. Foster, 9 Pick. (Mass.) 312, 316; Gage v. Currier, 4 Pick. (Mass.) 399.

The courts are not at liberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in its words. Cooley,

213 U.S.

Argument for the United States.

Const. Lim. (5th ed.) 205; People v. Fisher, 24 Wend. 215, 220; State v. Staten, 6 Coldw. (Tenn.) 238; Walker v. Cincinnati, 21 Ohio St. 14; People v. Rucker, 5 Colorado, 455; Commonwealth v. McCloskey, 2 Rawle, 374.

The presumption is in favor of validity, and only when the question is free from reasonable doubt will the Supreme Court hold an act of Congress to be in violation of the Constitution. Nicol v. Ames, 173 U. S. 509; Fletcher v. Peck, 6 Cranch, 126.

For protection against unjust or unwise legislation, within the limits of recognized legislative power, the people must look to the polls and not to the courts. It would be an abuse of judicial power for the courts to attempt to interfere with the constitutional discretion of the legislature. Covington Bridge Case, 105 U. S. 470, 482; The Lottery Case, 188 U. S. 321; Joint Traffic Association Case, 171 U. S. 505, 573; Northern Securities Case, 193 U. S. 337; Beebe v. State, 6 Indiana, 501, 528; Johnston v. Commonwealth, 1 Bibb, 603; Flint River Steamboat Co. v. Foster, 5 Georgia, 194; State v. Kruttschnitt, 4 Nevada, 178; Walker v. Cincinnati, 21 Ohio St. 14; Hills v. Chicago, 60 Illinois, 86; Ballentine v. Mayor &c., 15 Lea, 633; State v. Traders' Bank, 6 So. Rep. 582.

If power exists, it is to be assumed that legislative discretion has been properly exercised. Cooley, Const. Lim. (6th ed.,) 220; People v. Lawrence, 36 Barb. 177; People v. N. Y. Cent. R. Co., 34 Barb. 123; Baltimore v. State, 15 Maryland, 376; Goddin v. Crump, 8 Leigh, 154; Soon Hing v. Crowley, 113 U. S. 703.

The prevention of monopoly has long been a legitimate object of legislation. Pearsall v. Great Northern R. R. Co., 161 U. S. 646, 676; Northern Securities Case, 193 U. S. 341. Far stronger reasons, referable to a well-founded fear of monopoly, exist for prevention of a union of ordinary occupations, such as trading and producing, with transportation, by railroad corporations, than can be urged against consolidations such as were forbidden in the Northern Securities Case.

The term "commerce," as used in the Constitution, embraces the instrumentalities by which commerce is carried on.

Argument for the United States.

213 U.S.

Northern Securities Co. v. United States, 193 U. S. 197; Railroad Co. v. Fuller, 17 Wall. 500, 508; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203. When a railroad is engaged, as are the roads owned by the defendants, in interstate commerce, it is necessarily an instrumentality of interstate commerce. When, therefore, they entered into such combinations as are shown in this case, such restrictive arrangements gave them the essential character of contracts, combinations, or conspiracies in restraint of trade or commerce, whereby the defendants monopolized, or attempted to monopolize, trade or commerce among the several States or with foreign nations. Coxe Brothers & Co. v. Lehigh Valley Railroad Co., 4 I. C. C. Rep. 468; New Haven R. R. v. I. C. C., 200 U, S. 392, 393; United States v. Freight Association, 166 U. S. 290, 333, 334; Joint Traffic Association Case, 171 U. S. 577; Addyston Pipe Case, 175 U. S. 211, 244.

The highways of commerce are, in a sense, the public property of the Nation and subject to all the requisite legislation by Congress, which necessarily includes the power to keep them open and free from any obstruction, and Congress has, in this regard, all the powers that existed in the States before the adoption of the Constitution. Gilman v. Philadelphia, 3 Wall. 713, 724; In re Debs, 158 U. S. 564, 586.

These combinations between state corporations, one or more being industrial and the other a common carrier, would be amenable to a state law formulated in like terms as the AntiTrust Act. People v. Chicago Gas Trust Co., 130 Illinois, 294; People v. North Riv. Sug. Ref. Co., 54 Hun (N. Y.), 377. And if such combinations interfere with the laws of free competition in interstate commerce, and cannot be effectively dealt with under the anti-trust act, Congress can provide another and more effective remedy. Sturgis v. Crowninshield, 4 Wheat. 122; McCulloch v. Maryland, 4 Wheat. 315; United States v. Fisher, 2 Cranch, 358, 396; Juilliard v. Greenman, 110 U. S. 440, 441; In re Jackson, 14 Blatch. 250. Metasmundari odt word

213 U. S.

Argument for the United States.

The law here in question does not violate the guarantees of the Fifth Amendment, nor any other constitutional guarantees. The prohibition of the so-called commodities clause is not arbitrary as that word is defined in the decisions of this and other courts. Gulf, Col. & 8. F. Ry. v. Ellis, 165 U. S. 150, 155; A., T. & S. F. R. R. v. Matthews, 174 U. S. 96; Clark v. Kansas City, 178 U. S. 114; Tullis v. Lake Erie & Western R. R., 175 U. §. 348; Orient Ins. Co. v. Daggs, 172 U. S. 557.

It cannot be said that this statute is on its face a deprivation of life, liberty or property without due process of law, in the sense in which the phrase is ordinarily used. It is as oilIt proper an exercise of power under the commerce clause to forbid, conditionally, shipments of a certain class or descrip tion as to forbid discrimination. See Joint Traffic Association Case, 171 U. S. 571; Addyston Pipe Case, 175 U. S. 211. When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, the court cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. People v. Fisher, 24 Wend. 215, 220. To the same effect are State v. Staten, 6 Coldw. (Tenn.) 238; Walker v. Cincinnati, 21 Ohio St. 14; State v. Smith, 44 Ohio St. 348; People v. Rucker, 5 Colorado, 455; Whallon v. Ingham, 51 Michigan, 503; Wooten v. State, 5 So. Rep. 39; Cochran v. Van Surlay, 20 Wend. 365, 381, 383; People v. Gallagher, 4 Michigan, 244; Benson v. Mayor &c., 24 Barb. 248; Grant v. Courter, 24 Barb. 232.

The clause does not violate the provision that no person shall be deprived of property without due process of law. When it is claimed that a legislative act is inhibited by the due process clause, as applied to property, there must be an interest amounting to a vested right of property. If a right claimed is not of that character, then it is merely an inchoate right-a privilege. Rights are vested when the right to enjoyment, present or prospective, has become the property of

Argument for the United States.

213 U.S.

some particular person or persons, as a present interest. 8 Cyc. L. & Proc., 894; Cooley, Const. Lim. 438, 465; Pearsall v. Great Northern R. R. Co., 161 U. S. 646, 673. No right can be vested as a result of action which invades the domain of congressional power to regulate commerce, whether Congress has already acted or yet withholds action on the subject. Cooley, Const. Lim. (6th ed.) 437, 438; Fitzgerald v. Grand Trunk R. R. Co., 63 Vermont, 169; S. C., 13 L. R. A. 70; Union Bridge Case, 204 U. S. 364.

Retrospective Federal laws, unless er post facto, are not within the due process clause or any other prohibition of the Constitution, however repugnant to the principles of sound legislation. Stephens v. Cherokee Nation, 174 U. S. 445; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Satterlee v. Mathewson, 2 Pet. 380; Bonaparte v. Camden, Baldw. 205; S. C., Fed. Cas. No. 1617; Bennett v. Baggs, Baldw. 60; S. C., Fed. Cas. No. 1319; Albee v. May, 2 Paine, 74; S. C., Fed. Cas. No. 134.

No valid argument can be based upon long acquiescence in the use made of their coal lands and their output by the railroads on the part of the United States; for no estoppel can be asserted against constitutional legislation. Louisville & Nashville R. R. Co. v. Kentucky, 161 U. S. 677, 689; Union Bridge Co. v. United States, 204 U. S. 364; Bridge Company v. United States, 105 U. S. 470.

Not only is the Government not barred by acquiescence in what the defendants have done, whether with or without state authority, but Congress couid not have bartered away or estopped itself to exercise any of its constitutional powers. Monongahela Nav. Co. v. Coons, 6 W. & S. (Pa.) 101; Susquehanna Canal Co. v. Wright, 9 W. & S. (Pa.) 9; New York & Erie Railroad Co. v. Young, 33 Pa. St. 175; McKeen v. Delaware Canal Co., 49 På. St. 424; Freeland v. Pennsylvania Railroad, 66 Pa. St. 91; Bailey v. Phil., Wilm. & Balt. Railroad, 4 Harr. (Del.) 389; Rundle v. Del. & Raritan Canal Co., 14 How. 80.

The clause does not violate the provision that private prop