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it may indirectly operate upon commerce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress in respect to interstate commerce; but we do say that, upon the facts as they are represented to us in this record, that has not been done."

In the case of C. B. & Q. R. R. Co. v. Iowa, [supra] which directly related to railroad transportation, the language is as follows:

"The objection that the statute complained of is void because it amounts to a regulation of commerce among the States, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic concern. It is employed in state as well as in interstate commerce, and, until Congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in doing so those without may be indirectly affected."

But the strongest language used by this court in these cases is to be found in Peik v. Chicago & N. W. R. R. Co. [supra], as follows:

"As to the effect of the statute as a regulation of interstate commerce, the law is confined to state commerce, or such interstate commerce as directly affects the people of Wisconsin. Until Congress acts in reference to the relations of this company to interstate commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations, Incidentally, these may reach beyond the State. But certainly, until Congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without."

These extracts show that the question of the right of the State to regulate the rates of fares and tolls on railroads, and how far that right was affected by the commerce clause of the Constitution of the United States, was presented to the court in those cases. And it must be admitted that, in a general way, the court treated the cases then before it as belonging to that class of regulations of commerce which, like pilotage, bridging navigable rivers, and many others, could be acted upon by the States, in the absence of any legislation by Congress on the same subject.

By the slightest attention to the matter it will be readily seen that the circumstances under which a bridge may be authorized across a navigable stream within the limits of a State for the use of a public highway, and the local rules which shall govern the conduct of the pilots of each of the various harbors of the coasts of the United States, depend upon principles far more limited in their application and importance than those which should regulate the transportation of persons and property across the half or the whole of the continent, over the territory of half a dozen States, through which they are carried without change of car or breaking bulk.

Of the members of the court who concurred in those opinions, there being two dissentients, but three remain, and the writer of this opinion is one of the three. He is prepared to take his share of the responsibility for the language used in those opinions, including the extracts above presented. He does not feel called upon to say whether those extracts justify the decision of the Illinois Court in the present case. It will be seen from the opinions themselves, and from the arguments of counsel presented in the reports, that the question did not receive any very elaborate consideration, either in the opinions of the court or in the arguments of counsel. And the question how far a charge made for a continuous transportation over several States, which included a State whose laws were in question, may be divided into separate charges for each State, in enforcing the power of the State to regulate the fares of its railroads, was evidently not fully considered. These three cases, with others concerning the same subject, were argued at the same time by able counsel, and in relation to the different laws affecting the subject, of the States of Illinois, Iowa, Wisconsin, and Minnesota; the main question in all the cases being the right of the State to establish any limitation upon the power of the railroad companies to fix the price at which they would carry passengers and freight. It was strenuously denied, and very confidently, by all the railroad companies, that any legislative body whatever had a right to limit the tolls and charges to be made by the carrying companies for transportation. And the great question to be decided, and which was decided, and which was argued in all those cases, was the right of the State, within which a railroad company did business, to regulate or limit the amount of any of these traffic charges.

The importance of that question overshadowed all others, and the case of Munn v. Illinois was selected by the court as the most appropriate one in which to give its opinion on that subject, because that case presented the question of a private citizen, or unincorporated partnership, engaged in the warehousing business in Chicago, free from any claim of right or contract under an Act of incorporation of any State whatever, and free from the question of continuous transportation through several States. And in that case the court was presented with the question, which it decided, whether anyone engaged in a public business, in which all the public had a right to require his service, could be regulated by Acts of the Legislature in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services.

The railroad companies set up another defense, apart from denying the general right of the Legislature to regulate transportation charges, namely: that in their charters from the States they each had a contract, express or implied, that they might regulate and establish their own fares and rates of transportation. These two questions were of primary importance; and though it is true that, as incidental or auxiliary to these, the question of the exclusive right of Congress to make such regulations of charges as any legislative power had the right to make, to the exclusion of the States, was presented, it

received but little attention at the hands of the | is not always distinctly marked; and oftentimes court and was passed over with the remarks in it is not easy to determine on which side a parthe opinions of the court which have been cited. ticular case belongs. Judges not unfrequently The case of The State Freight Tax [supra] differ in their reasons for a decision in which which was decided only four years before these they concur. Under such circumstances it cases, held an Act of the Legislature of Penn- would be a useless task to undertake to fix an sylvania void, as being in conflict with the com- arbitrary rule by which the line must, in all merce clause of the Constitution of the United cases, be located. It is far better to leave a States, which levied a tax upon all freight car-matter of such delicacy to be settled in each case ried through the State by any railroad company, or into it from any other State, or out of it into any other State, and valid as to all freight the carriage of which was begun and ended within the limits of the State; because the former was a regulation of interstate commerce, and the latter was a commerce solely within the State which it had a right to regulate. And the question now under consideration, whether these statutes were of a class which the Legislatures of the States could enact in the absence of any Act of Congress on the subject, was considered and decided in the negative.

It is impossible to see any distinction in its effect upon commerce of either class, between a statute which regulates the charges for transportation, and a statute which levies a tax for the benefit of the State upon the same transportation; and in fact the judgment of the court in the State Freight Tax Case rested upon the ground that the tax was always added to the cost of transportation, and thus was a tax in effect upon the privilege of carrying the goods through the State. It is also very difficult to believe that the court consciously intended to overrule the first of these cases without any reference to it in the opinion.

upon a view of the particular rights involved. But we think it may safely be said that state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. *** It was to meet just such a case that the commercial clause in the Constitution was adopted. The River Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments."

The applicability of this language to the case now under consideration, of a continuous transportation of goods from New York to central Illinois, or from the latter to New York, is obvious, and it is not easy to see how any distinction can be made. Whatever may be the

At the very next term of the court, after the delivery of these opinions, the case of Hall v. De Cuir [supra] was decided, in which the same point was considered, in reference to a Statute of the State of Louisiana which attempted to regulate the carriage of passengers upon railroads, steamboats, and other public conveyances, and which provided that no regulations of any companies engaged in that business should make any discrimination on account of race or color. This statute by its terms was limited to persons engaged in that class of business within the State, as is the one now under consideration; and the case presented under the statute was that of a person of color who took passage from New Orleans for Hermitage, both places being within the limits of the State of Louisiana, and was refused accom-instrumentalities by which this transportation modations in the general cabin on account of her color. In regard to this, the court declared that "For the purposes of this case, we must treat the Act of Louisiana of February 23, 1869, as requiring those engaged in interstate commerce to give all persons traveling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color ***. We have nothing whatever to do with it as a regulation of internal commerce, or as affecting anything else than commerce among the States."

And, speaking in reference to the right of the States in certain classes of interstate commerce to pass laws regulating them, the opinion says: "The line which separates the powers of the State from this exclusive power of Congress,

from the one point to the other is effected, it is but one voyage, as much so as that of the steamboat on the Mississippi River. It is not the railroads themselves that are regulated by this Act of the Illinois Legislature, so much as the charge for transportation; and, in language just cited, if each one of the States through whose territories these goods are transported can fix its own rules for prices, for modes of transit, for times and modes of delivery, and all the other incidents of transportation to which the word "regulation" can be applied, it is readily seen that the embarrassments upon interstate transportation, as an element of interstate commerce, might be too oppressive to be submitted to. "It was," in the language of the court cited above, "to meet just such a case that the commerce clause of the Constitution was adopted."

It cannot be too strongly insisted upon, that

the right of continuous transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the States might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to Congress the power to regulate commerce among the States, and with foreign Nations, as this court has said before, was among the most important of the subjects which prompted the formation of the Constitution. Cook v. Pennsylvania, 97 U. S. 574 [Bk. 24, L. ed. 1018]; Brown v. Maryland, 12 Wheat. 446 [25 U. S. bk. 6, L. ed. 688]. And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the States which was deemed essential to a more perfect union by the framers of the Constitution, if, at every stage of the transportation of goods and chattels through the country, the State within whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce.

of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and interstate commerce and beyond the power of the State. That is fully established by the cases already cited."

In the case of Welton v. Missouri, 91 U. S. 275 [Bk. 23, L. ed. 347], it was said: "It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation. The very object of investing this power in the General Government was to insure this uniformity against discriminating state legislation."

And in Mobile County v. Kimball, 102 U. S. 691 [Bk. 26, L. ed. 238], the same idea is very clearly stated in the following language: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules, applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore, permissible. Language affirming the exclusiveness of the grant of power over commerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxiliary to commerce."

The argument on this subject can never be better stated than it is by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 195-6 [22 U. S. bk. 6, L. ed. 70]. He there demonstrates that commerce among the States, like commerce with foreign nations, is necessarily a commerce which crosses state lines, and extends into the States; and the power of Congress to regulate it exists wherever that commerce is found. Speaking of navigation as an element of commerce, which it is, only as a means of transportation now largely superseded by railroads, he says: "The power of Congress, In the case of Gloucester Ferry Co. v. Pennthen, comprehends navigation within the limits sylvania [supra], decided two years ago, the of every State in the Union, so far as that nav-court declared without dissent that: "It needs igation may be, in any manner, connected with 'commerce with foreign Nations, or among the several States, or with the Indian Tribes. It may, of consequence, pass the jurisdictional line of New York and act upon the very waters (the Hudson River) to which the prohibition now under consideration applies. P. 197 [70]. So the same power may pass the line of the State of Illinois and act upon its restriction upon the right of transportation extending over several States, including that one.

no argument to show that the commerce with foreign Nations as between the States, which consists in the transportation of persons and property between them, is a subject of national character and requires uniformity of regulation." And still later, in the case of Pickard v. Pullman Southern Car Co. [supra], the whole subject is very fully re-examined; and a tax of the State of Tennessee upon sleeping cars of that company, which were used in carrying passengers through the State, and into it and out of it, was held void as a regulation of commerce among the States.

The case of Stone v. Farmers Loan & T Co. [supra], argued at the same term as the present, while it does not decide the latter, evidently does not support the construction placed by the Supreme Court of Illinois upon the case of Munn v. Illinois, and the other cases on which the court relies.

In the case of Telegraph Co. v. Texas [supra] the court held that "A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods;" and that "both companies are instruments of commerce, and their business is commerce itself." And relying upon the case of the State Freight Tax [supra] already referred to, the court said that a tax by the State of Texas upon all messages carried within its borders was forbidden by the commerce clause of the Constitution, as being a tax upon commerce among the States; and observed that "The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. *** Clearly, if a fixed tax for every two Let us see precisely what is the degree of inthousand pounds of freight carried is a tax on terference with transportation of property or the freight, or for every measured ton of a ves-persons from one State to another which this sel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale

We must, therefore, hold that it is not, and never has been, the deliberate opinion of a majority of this court that a statute of a State which attempts to regulate the fares and charges by railroad companies within its limits, for a transportation which constitutes a part of commerce among the States, is a valid law.

statute proposes. A citizen of New York has goods which he desires to have transported by

the railroad companies from that city to the in- | tainly is the province of the State Legislature terior of the State of Illinois. A continuous to determine that question. But when it is atline of rail over which a car loaded with these tempted to apply the transportation through an goods can be carried, and is carried habitually, entire series of States a principle of this kind, connects the place of shipment with the place and each one of the States shall attempt to estabof delivery. He undertakes to make a contract lish its own rates of transportation, its own with a person engaged in the carrying business methods to prevent discrimination in rates, or at the end of this route from whence the goods to permit it, the deleterious influence upon the are to start, and he is told by the carrier: "I freedom of commerce among the States and am free to make a fair and reasonable contract upon the transit of goods through those States for this carriage to the line of the State of Illi- cannot be overestimated. That this species of nois, but when the car which carries these regulation is one which must be, if established goods is to cross the line of that State, pursuing at all, of a general and national character, and at the same time this continuous track, I am cannot be safely and wisely remitted to local met by a law of Illinois which forbids me to rules and local regulations, we think is clear make a free contract concerning this transpor- from what has already been said. And if it be a tation within that State, and subjects me to regulation of commerce, as we think we have certain rules by which I am to be governed as demonstrated it is, and as the Illinois Court to the charges which the same railroad com- concedes it to be, it must be of that national pany in Illinois may make, or has made, with character, and the regulation can only approreference to other persons and other places of priately exist by general rules and principles, delivery." So that while that carrier might be which demand that it should be done by the willing to carry these goods from the City of Congress of the United States under the comNew York to the City of Peoria at the rate of merce clause of the Constitution. fifteen cents per hundred pounds, he is not per- The judgment of the Supreme Court of Illinois mitted to do so because the Illinois Railroad is therefore reversed, and the case remanded to Company has already charged at the rate of that court for further proceedings in conformity twenty-five cents per hundred pounds for car-with this opinion. riage to Gilman, in Illinois, which is eighty-six miles shorter than the distance to Peoria.

So, also, in the present case; the owner of corn, the principal product of the country, desiring to transport it from Peoria, in Illinois, to New York, finds a Railroad Company willing to do this at the rate of fifteen cents per hundred pounds for a carload, but is compelled to pay at the rate of twenty-five cents per hundred pounds, because the Railroad Company has received from a person residing at Gilman twenty-five cents per hundred pounds for the transpertation of a carload of the same class of freight over the same line of road from Gilman to New York. This is the result of the Statute of Illinois, in its endeavor to prevent unjust discrimination, as construed by the Supreme Court of that State. The effect of it is that whatever may be the rate of transportation per mile charged by the Railroad Company from Gilman to Sheldon, a distance of twenty-three miles, in which the loading and the unloading of the freight is the largest expense incurred by the Railroad Company, the same rate per mile must be charged from Peoria to the City of New York.

The obvious injustice of such a rule as this, which railroad companies are by heavy penalties compelled to conform to, in regard to commerce among the States, when applied to transportation which includes Illinois in a long line of carriage through several States, shows the value of the constitutional provision which confides the power of regulating interstate commerce to the Congress of the United States, whose enlarged view of the interests of all the States, and of the railroads concerned, better fits it to establish just and equitable rules.

Of the justice or propriety of the principle which lies at the foundation of the Illinois Statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State, it may be very just and equitable, and it cer

Mr. Justice Bradley, dissenting:

The Chief Justice, Mr. Justice Gray, and myself dissent from the opinion and judgment of the court in this case, and I am authorized to state the reasons upon which our dissent is founded:

The Wabash, St. Louis & Pacific Railway Company, an Illinois corporation, plaintiff in error, was sued by the State of Illinois to recover a penalty for the breach of its laws, passed "to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freight on railroads in the State.' The law sued on was orginally passed in 1871, and revised in 1873, and the material portions of its most important section are in the following words, to wit:

"If any such railroad corporation shall charge, collect or receive for the transportation of any passenger or freight of any description, upon its railroad, for any distance, within this State, the same or a greater amount of toll or compensation than is at the same time charged, collected or received for the transportation, in the same direction, of any passenger or like quantity of freight, of the same class, over a greater distance of the same railroad; *** or if it shall charge, collect or receive from any person or persons, for the use and transportation of any railroad car or cars upon its railroad, for any distance, the same or a greater amount of toll or compensation than it at the same time charged, collected or received from any other person or persons, for the use and transportation of any railroad car of the same class or number, for a like purpose, being transported in the same direction, over a greater distance of the same railroad; *** all such discriminating rates, charges, collections, or receipts, whether made directly or by means of rebate, drawback or other shift or evasion, shall be deemed and taken, against any such railroad corporation, as prima facie evidence of unjust discrimina

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tion, prohibited by the provisions of this Act; ***Provided, however, That nothing herein contained shall be so construed as to prevent railroad corporations from issuing commutation, excursion or thousand mile tickets, as the same are now issued by such corporations.' A penalty of not less than $1,000, and not more than $5,000, for the first offense is imposed for the violation of the law; and it was for this penalty that the Company was sued in the Ford County Circuit Court.

state line, proportionately with the balance of the line. The judgment is affirmed." Wabash St. L. & P. R. Co. v. Illinois, 105 Ill. 236.

We have no doubt that this view of the presumed equal distribution of the charge to every part of the route is correct. If one tenth, or any other proportion, of the whole route of transportation was in Illinois, the clear presumption is, if nothing be shown to the contrary (as nothing was shown), that the like proportion of the whole charge was made for the transportation in that State.

The principal question in this case, therefore, is whether, in the absence of congressional legislation, a State Legislature has the power to regulate the charges made by the railroads of the State for transporting goods and passengers to and from places within the State, when such goods or passengers are brought from, or car

The declaration alleged, in substance, that the Company charged certain parties fifteen cents per hundred pounds for carrying a load of freight from Peoria, in the State of Illinois, to New York, one hundred and nine miles of the distance being in Iilinois, whilst at the same time it charged certain other parties twentyfive cents per hundred pounds for carrying a like load of the same class of freight from Gil-ried to, points without the State, and are, thereman, also in the State of Illinois, to New York, twenty-three miles of the distance being in Illinois, both places being on the line of the road. This allegation was substantially admitted, and judgment was finally rendered in favor of the State, and was sustained by the Supreme Court of the State, to which the present writ of error | was directed.

The main point insisted on by the Railway Company in its defense was that the law on which the action was founded is unconstitutional in its application to their case, as being a regulation of interstate commerce. They also contended that a gross charge from Peoria or Gilman to New York was no evidence of any particular charge within the State of Illinois, The construction given to the law by the Supreme Court of Illinois is to be received by us, on a writ of error brought for the purpose of questioning its constitutionality. That construction is clearly exhibited in the following announcement of the opinion of that court when the case was brought before it a second time. The court says:

"We see no reason to depart from the conclusion reached in this case when it was here before. See People v. W. St. L. & P. Railway Co. 104 III. 476. But to avoid misapprehension, we deem it desirable to state explicitly that we disclaim any idea that Illinois has authority to regulate commerce in any other State. We understand and simply hold that, in the absence of anything showing to the contrary, a single and entire contract to carry for a gross sum from Gilman, in this State, to the City of New York, implies necessarily that that sum is charged proportionately for the carriage on every part of that distance; and that a single and entire contract to carry for a gross sum from Peoria, in this State, to the City of New York, implies the same thing; and that, therefore, when it is shown that there is charged for carriage upon the same line less from Peoria to New York (the greater distance), than from Gilman to New York (the less distance), and nothing is shown to the effect that such inequality in charge is all for carriage entirely beyond the limits of this State, a prima facie case is made out of unjust discrimination, under our statute, occurring within this State. We hold that the excess in the charge for the less distance presumably affects every part of the line of carriage between Gilman and the

fore, in course of transportation from another State, or to another State. It is contended that as such transportation is commerce between or among different States, the power does not exist. The majority of the court so hold. We feel obliged to dissent from that opinion. We think that the State does not lose its power to regulate the charges of its own railroads in its own territory, simply because the goods or persous transported have been brought from or are destined to a point beyond the State in another State.

The case before us is not embarrassed by any allegation of a contract between the State and the Company; it is a question of the power to regulate, pure and simple. The State has never contracted away or attempted to contract away this power.

It is also unembarrassed by any federal legislation on the subject. No one disputes that Congress might, if it saw fit, under its power to regulate commerce among the several States, regulate the matter under consideration; but it has not done so. The question rests solely and entirely upon the power of the State, when unrestrained by any contract, or by any action of the legislative department of the United States. Does it follow, then, that because Congress has the power to regulate this matter, though it has not exercised that power, therefore the State is devested of all power of regulation? That is the question before us.

We had supposed that this question was concluded by the previous decisions of this court; that all local arrangements and regulations respecting highways, turnpikes, railroads, bridges, canals, ferries, dams and wharves, within the State, their construction and repair, and the charges to be made for their use, though materially affecting commerce, both internal and external, and thereby incidentally operating to a certain extent as regulations of interstate commerce, were within the power and jurisdiction of the several States. That is still our opinion.

It is almost a work of supererogation to refer to the cases. They are legion. A few, only, will be selected and referred to:

The first great case on the subject was that of Wilson v. Black Bird Creek etc. Co. 2 Pet. 245 [27 U. S. bk. 7, L. ed. 412], where the State of Delaware had authorized a dam in a navigable tide water creek of that State, communicating

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