with Delaware Bay; and Chief Justice Marshall, | Chicago River, so as to accommodate the local delivering the unanimous opinion of the court, travel across them at certain times, and to alsaid: "The value of the property on its banks low the passage of vessels at others. This must be enhanced by excluding the water from operated as a regulation of the commerce on the marsh, and the health of the inhabitants the river, including interstate and foreign, asprobably improved. Measures calculated to well as domestic commerce. But there being produce these objects, provided they do not no legislation of Congress to the contrary, this come into collison with the powers of the Gen- court held that the power was constitutionally eral Government, are undoubtedly within those exercised. Commerce was affected; commerce which are reserved to the States. But the meas- was even incidentally regulated; but the jurisure authorized by this Act stops a navigable diction of the State, and of the city acting uncreek, and must be supposed to abridge the der state authority, was unhesitatingly recog rights of those who have been accustomed to nized by the court. Mr. Justice Field, deliveruse it. But this abridgment, unless it comes ing the opinion of the court, said: "The in conflict with the Constitution or a law of Chicago River and its branches must, therefore,. the United States, is an affair between the Gov- be deemed navigable waters of the United ernment of Delaware and its citizens, of which States, over which Congress under its commerthis court can take no cognizance. The counsel cial power may exercise control to the extent for the plaintiff in error insist that it comes in necessary to protect, preserve and improve the conflict with the power of the United States free navigation. But the States have full power 'to regulate commerce with foreign Nations to regulate within their limits matters of interand among the several States.' If Congress nal police, including in that general designahad passed any Act which bore upon the case, tion whatever will promote the peace, comfort, any Act in execution of the power to regulate convenience and prosperity of the people. This commerce, the object of which was to control power embraces the construction of roads, state legislation over those small navigable canals and bridges, and the establishment of creeks into which the tide flows, and which ferries, and it can generally be exercised more abound throughout the lower country of the wisely by the States than by a distant authorMiddle and Southern States, we should feel not ity. *** Nowhere could the power to control much difficulty in saying that a state law com- the bridges in that city, their construction, ing in conflict with such Act would be void. form and strength, and the size of their draws, But Congress has passed no such Act. The re- and the manner and times of using them, be pugnancy of the law of Delaware to the Con- better vested than with the State, or the austitution is placed entirely on its repugnancy to thority of the city upon whom it has devolved the power to regulate commerce with foreign that duty. When its power is exercised, so as nations and among the several States; a power to unnecessarily obstruct the navigation of the which has not been so exercised as to affect the river or its branches, Congress may interfere question. We do not think the Act empower- and remove the obstruction. *** But until ing the Blackbird Creek Marsh Company to Congress acts on the subject, the power of the place a dam across the creek can, under all State over bridges across its navigable streams. the circumstances of the case, be considered as is plenary." repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.

The doctrines announced in these cases apply not only to dams in, and bridges over, navigable streams, but to all structures and appli-This case was, in all things, affirmed by the ances in a State which may incidentally interlater case of Gilman v. Philadelphia, 3 Wall. fere with commerce, or which may be erected 713 [70 U. S. bk. 18, L. ed. 96]. The Legisla- or created for the furtherance of commerce, ture of Pennsylvania authorized the City of whether by water or by land. It is matter of Philadelphia to erect a permanent bridge across common knowledge that, from the beginning of the Schuylkill River, a navigable water, at the the government, the States have exercised al-foot of Chestnut Street. It was sought to re- most exclusive control over roads, bridges, ferstrain the erection of this bridge on the same ries, wharves and harbors. No one has doubtgrounds which had been urged in the Blackbird ed their right to do so. It is recognized in the Creek Case; but the Circuit Court of the United great case of Gibbons v. Ogden, where Chief States refused to interfere, and dismissed a bill Justice Marshall, after enumerating some of for an injunction. The decision was sustained the powers reserved to the States, says: "They by this court, which held that it was for Con- form a portion of that immense mass of legisgress to determine when its full power to regulation which embraces everything within the late commerce should be brought into activity, and as to the regulations and sanctions which should be provided; and that, until the dormant power of the Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith cannot be made the subject of review by this court.

These principles are reaffirmed in the still more recent case of Escanaba etc. Co. v. Chicago, 107 U. S. 678 [Bk. 27, L. ed. 442]. In that case the authorities of Chicago, under the powers conferred upon them by the Legislature of Illinois, regulated the times for opening and closing the draws in the bridges crossing the

territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of the State, and those which respect turnpike roads, ferries, etc., are component parts of this mass." And he adds (what is very pertinent to this discussion): "No direct general power over these objects is granted to Congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes;: it must be where the power is expressly given

for a special purpose; or is clearly incidental to | lished under state authority: and in reference some power which is expressly given."

The case of Parkersburg etc. Trans. Co. v. Parkersburg, 107 U. S. 691 [Bk. 27, L. ed. 584], related to wharves. The City of Parkersburg had built certain wharves for the accommodation of vessels, principally steamboats, navigating the Ohio River. The transportation company, being the owner of several steamboats plying on that river, complained of the wharfage charges as being extortionate and an unconstitutional interference with the commerce of the Ohio River. It was shown that the charges were imposed by authority derived from the state laws; and we held that until Congress interfered, the charges for wharfage was a matter of state law, and of state jurisdiction. We then said: "Wharves, levees and landing places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, real estate; and they are primarily, at least, subject to the local state laws. ***Until Congress has acted, the courts of the United States cannot assume control over the subject as a matter of federal cognizance. It is Congress, and not the judicial department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on the subject."

There is a class of subjects, it is true, pertaining to interstate and foreign commerce, which require general and uniform rules for the whole country, so as to obviate unjust discriminations against any part, and in respect of which local regulations made by the States would be repugnant to the power vested in Congress, and, therefore, unconstitutional; but there are other subjects of local character and interest which not only admit of, but are generally best regulated by state authority. This distinction is pointed out and enforced in the case of Cooley v. Port Wardens of Phila. 12 How. 299 [53 U. S. bk. 13, L. ed. 996]. In that case it was held that the pilotage regulations of the different courts of the country belong to the latter class, and are susceptible of state regulation. This case has been approved in several subsequent decisions. Gilman v. Philadelphia, ubi supra; Crandall v. Nevada, 6 Wall. 35, 42[73 U. S. bk 18, L. ed. 745]; Ex parte McNiel, 13 Wall. 236 [80 U. S. bk. 20, L. ed.624]; Osborne v. Mobile,16 Wall.482 [83 U.S. bk. 21, L. ed. 473]; Chicago etc. R. Co. v. Fuller, 17 Wall. 569 [84 U. S. bk.21, L. ed.714]; Rodd v. Heartt, 21 Wall. 581, 582 [88 U. S. bk. 22, L. ed. 664]; Packet Co. v. Keokuk, 95 U. S. 88 [Bk. 24, L. ed. 381]; Pound v. Turck, 95 U. S. 462 [Bk. 24, L. ed. 526]; Hall v. De Cuir, 95 U. S. 488 [Bk. 24, L. ed. 548]; Wilson v. McNamee, 102 U. S. 575 [Bk. 26, L. ed. 235]; Mobile Co.v. Kimball, 102 U. S. 698 [Bk. 26, L. ed. 240]; Packet Co. v. Trustees, Catlettsburg, 105 U. S. 562 [Bk. 26, L. ed. 1170].

to these, it seems to us very clear that, in the absence of congressional legislation to the contrary, they are not only susceptible of state regulation, but properly amenable to it, irrespective of other considerations to which we shall refer.

The highways in a State are the highways of the State. Convenient ways and means of intercommunication are the first evidence of the civilization of a people. The highways of a country are not of private but of public institution and regulation. In modern times, it is true, government is in the habit, in some countries of letting out the construction of important highways, requiring a large expenditure of capital, to agents, generally corporate bodies created for the purpose, and giving to them the right of taxing those who travel or transport goods thereon, as a means of obtaining compensation for their outlay. But a superintending power over the highways, and the charges imposed upon the public for their use, always remains in the government. This is not only its indefeasible right, but is necessary for the protection of the people against extortion and abuse. These positions we deem to be incontrovertible. Indeed, they are adjudged law in the decisions of this court. Railroads and railroad corporations are in this category.

Now, since every railroad may be, and generally is, a medium of transportation for interstate commerce, and affects that commerce; and since the charges of fare and freight for such transportation affect and incidentally regulate that commerce; and since the railroad could not be built, and the charges upon it could not be exacted, without authority from the State, it follows as a necessary consequence that the State, in the exercise of its undoubted functions and sovereignty, does in the establishment and regulation of railroads, to a certain and a very material extent, not only do that which affects, but incidentally regulates commerce. It does so by the very Act of authorizing the construction of railroads and the collection of fares and freights thereon. No one doubts its powers to do this. The very being of the plaintiffs in error, the very existence of their railroad, the very power they exercise of charging fares and freights, are all derived from the State. And yet, according to the argument of the plaintiffs in error, pursued to its legitimate consequences, the Act of the State in doing all this ought to be regarded as null and void because it operates as a regulation of commerce among the States. Not only does the right to charge fares and freights at all, come to a railroad company from the grant of the State, but the amount of such charges is also regulated by the state law, either by the charter of the company, or by legislative regulations, or by the general law that the charges shall be reasonable; and that is state law and not United States law. Where else but from It is hardly necessary to argue that, in ref- the laws of the State does the railroad company erence to this rule, railroads, canals, turnpikes, get its right to charge any fares or freight at bridges, ferries and wharves belong to the cate- all? And since its being, its franchises, its gory of local subjects, local means and local powers, its road, its right to charge, all come aids of commercial intercourse. Congress may from the State, and are the creation of state establish national roads, canals and bridges, 'it law, how can it be contended that the State has is true; but we speak of those, hitherto the no power of regulation over those charges, and most part, which are constructed and estab-over the conduct of the company in the trans

To sum up the matter in a word; we hold it to be a sound proposition of law, that the mak- The distinction between such burdens and ing of railroads and regulating the charges for charges for service rendered is well explained their use is not such a regulation of commerce in the case of Gloucester Ferry Co. v. Pa. 114 U. as to be in the remotest degree repugnant to S. 196, 217 [Bk. 29, L. ed. 158, 166], where Mr. any power given to Congress by the Constitu- Justice Field, delivering the unanimous opinion tion, so long as that power is dormant, and has of the court, in relation to ferries says: "It is not been exercised by Congress. They affect true that, from the earliest period in the history commerce; they incidentally regulate it; but of the government, the States have authorized they are acts in relation to the subject which and regulated ferries, not only over waters enthe State has a perfect right to do, subject, al-tirely within their limits, but over waters sepaways, to the controlling power of Congress over the regulation of commerce when Congress sees fit to act.

States of taxes or other burdens upon the com- | that performs it. *** The question is pracmerce between them. Freedom from such im- tically reduced to this: What amounts to a regupositions does not, of course, imply exemption lation of commerce between the States? This from reasonable charges, as compensation for is often difficult to determine. In view, howthe carriage of persons, in the way of tolls or ever, of the very plenary powers which a State fares, or from the ordinary taxation to which has always been conceded to have over its own other property is subjected, any more than like territory, its highways, its franchises and its freedom of transportation on land implies such corporations, we cannot regard the stipulation exemption. Reasonable charges for the use of in question as amounting to either of these unproperty, either on water or land, are not an in- constitutional Acts. It is not within the cateterference with the freedom of transportation gory of such Acts. It may incidentally affect between the States secured under the commer- transportation, it is true; but so does every burcial power of Congress. *** That freedom den or tax imposed on corporations or persons implies exemption from other charges than such engaged in that business. Such burdens, howas are imposed by way of compensation for the ever, are imposed diverso intuitu, and in the use of the property employed, or for the facili- exercise of an undoubted power." ties afforded for its use, or as ordinary taxes upon the value of property."

directly affect those without." The law was sustained, and the bill of complaint was dismissed. We do not see how this case can be distinguished from that now under consideration. The fact that in Peik's Case there was a classification of freights and a limitation of charges, and in the present case a prohibition of discrimination in the charges, is a distinction without a difference. The opinion is brief, it is true, but all the principles involved in it were so fully discussed in the cases immediately preceding, begining with that of Munn v. Illinois, that no extended discussion of Peik's Case was deemed necessary, All the justices who concurred in the opinion were entirely satisfied with it. The cases were all argued at the same time, or in reference to each other, and were considered together. But there stands the judgment of the court, and, in our apprehension, the judgment in the present case is directly opposed to it.

We have omitted to cite a number of cases corroborating the views we have expressed. The case of State Tax on R. Gross Receipts, 15 Wall. 284 [82 U. S. bk. 21, L. ed. 164], is weighted with arguments and considerations in this direction. We would also refer to the cases of Osborne v. Mobile, 16 Wall. 479 [83 U. S. bk. 21, L. ed. 470]; Chicago etc. R. Co. v. Fuller, 17 Wall. 560 [84 U. S. bk. 21, L. ed. 710]; R. R. Commission Cases, 116 U. S. 307, 334, 335 [Bk. 29, L. ed. 636, 645].

that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States. The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it; for, as has been often said, 'Legislation may in a great variety of ways affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution.' Sherlock v. Alling, 93 U.S. 103 [Bk. 23, L. ed. 820]; State Tax on R. Gross Receipts [supra]. Thus, in Munn v. Illinois, 94 U. S. 113 (Bk. 24, L. ed. 77], it was decided that a State might regulate the charges of public warehouses, and, in Chic. B. & Q. R. Co. v. Cutts, 94 U. S. 155 [Bk. 24, L. ed. 94], of railroads situate entirely within the State, even though those engaged in commerce among the States might sometimes use the warehouses or the railroads in the prosecution of their business." After referring to the cases of dams and bridges over navigable waters, and of turnpikes and ferries, the Chief Justice continued: "By such statutes the States regulate, as a matter of domestic concern, the instruments of commerce situated wholly within their own jurisdictions, and over which they have exclusive governmental control, except when employed in interstate commerce. As they can only be used in the State, their regulation for all purposes may properly be assumed by the State, until Congress acts in reference to their foreign or interstate relations. When Congress does act, the state laws are superseded, only to the extent that they affect commerce outside the State as it comes within the State." He then added: "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 A steamer which regularly plied between instruments to be employed after coming withNew Orleans and Vicksburg had a cabin spe- in the State, but directly upon the business as cially set apart for white persons, and De Cuir, it comes into the State from without, or goes a colored person, being refused admission to out from within." The distinction here taken that cabin, sued for damages. We held that seems to us sound and to distinguish the presthe law (as above suggested) was a direct regula-ent case from that of De Cuir. In the Peik tion of commerce and a burden upon it. It com- Case, and others of like character, the State pelled the steamboat proprietors to place col-regulated the charges made upon an instrument ored persons traveling from one place to another of commerce (a railroad) situated within the in Louisinia, in the cabin set apart for white persons, many of whom were bound to another State; and, therefore, in its operation was a regulation of interstate commerce. It was against the rule that, in the absence of action by Congress, commerce must remain free and untrammeled. By that rule the proprietor of the vessel was at liberty to adopt such reasonable rules and regulations for the disposition and comfort of passengers upon his boat, while pursuing its voyage, as seemed to him most for the interest of all concerned. The statute took away from him this power so long as he was within Louisiana. We especially distinguished the case from those of Munn v. Illinois, Peik v. R. R. Co., and the cognate cases, as belonging to a different category, and governed by different consideration; and the difference between them seems to us very apparent.

It is supposed that the decision in Hall v. De Cuir, 95 U. S. 485 [Bk. 24, L. ed. 547], supports the contention of the plaintiffs in error. We think not. What was that case? A Statute of Louisiana, as construed by its courts, prohibited those engaged in the business of carrying passengers, in that State (including those engaged in interstate commerce), from making any discrimination on account of race or color in the use of the accommodations in their conveyances; a direct regulation of commerce, and within the reason of the tax cases before referred

to.

The Chief Justice, in delivering the opinion of the court said: "There can be no doubt but

State and under its jurisdiction; such charges being made by vtrtue of the State's authority; in the De Cuir Case it attempted, as the law operated, to regulate the manner of carrying passengers on an instrument of commerce having no fixed location, by plying on navigable waters within and without the State; in other words, it attempted to regulate interstate commerce itself, directly, in a matter in which it had no special prerogative to legislate.

Other cases are referred to by the plaintiff in error in support of their contention; but we think that no case can be found which is not clearly distinguishable from the present on some or one of the grounds already referred to.

The inconvenience which it has been supposed in argument would follow from the execution of the laws of Illinois we think have been greatly exaggerated. But if it should be found to present any real difficulty in the modes of transacting business on through lines, it is