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portation than that which begins and ends within the limits of the State. The Supreme Court of Illinois having in this case given an interpretation which makes it apply to what we understand to be commerce among the States, although the contract was made within the State of Illinois, and a part of its performance was within the same State, we are bound, in this court, to accept that construction. It becomes, therefore, necessary to inquire whether the charge exacted from the shippers in this case was a charge for interState transportation, or was susceptible of a division which would allow so much of it to attach to commerce strictly within the State, and so much more to commerce in other States. The transportation, wbich is the subjectmatter, being the point on which the decision of the case must rest, was it a transportation limited to the State of Illinois, or was it a transportation covering all the lines between Gilman in the one case and Peoria in the other, in the State of Illinois, and the city of New York, in the State of New York?

The Supreme Court of Illinois does not place its judgment in the present case on the ground that the transportation and the charge are exclusively State commerce; but, conceding that it may be a case of commerce among the States, or inter-State commerce, which congress would have the right to regulate if it had attempted to do so, argues that this statute of Illinois belongs to that class of commercial regulations which may be established by the laws of a State until congress shall have exercised its powers on that subject; and to this proposition a large part of the argument of the attorney-general of the State before us is devoted, although he earnestly insists that the statute of Illinois, which is the foundation of this action, is not a regulation of commerce, within the meaning of the constitution of the United States. In support of its view of the subject the Supreme Court of Illinois cites the cases of Munn v. Illinois, Chicago, etc. R. Co. v. Iowa, and Peik v. Chicago, etc. R. Co., above referred to. It cannot be denied that the general language of the court in these cases, upon the power of congress to regulate commerce, may be susceptible of the meaning which the Illinois court places upon it.

In Munn v. Illinois, 94 U. S. 133, the language of this court upon that subject is as follows: “We come now to consider the effect upon this statute of the power of congress to regulate commerce. It was very properly said in Case of State Tax on Railway Gross Receipts, 15 Wall. 293, that “it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the constitution. The warehouses of these plaintiffs in error are situated, and their business carried on exclusively, within the limits of the State of Illinois. They are used as instrument by those engaged in State, as well as those engaged in interState commerce, but they are no more necessarily a part of commerce itself than the dray or cart by which, but for them, grain would be transferred

from one railroad station to another. Incidentally they may become connected with inter-State commerce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainly, until congress acts in re rence to their interState relations, the State may exercise all the powers of government over them, even though in so doing 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 inter-State 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 Chicago, etc. R. Co. v. Iowa, 94 U. S. 155, 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 inter-State 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, etc. R. Co., 94 U. S. 164, as follows: "As to the effect of the statute as a regulation of inter-State com

The law is confined to State commerce, or such inter-State 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 ta 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 whicb



a bridge may be authorized across a navigable public had a right to require his service, could be stream within the limits of a State for the use of regulated by acts of the legislature, in the exera public highway, and the local rules which shall cise of this public function and public duty, so far govern the conduct of the pilots of each of the as to limit the amount of charges that should be varying barbors of the coast of the United States, made for such services. depend upon principles far more limited in

The railroad companies set up another defense, their application and importance than those apart from denying the general right of the legiswhich should regulate the transportation of lature to regulate transportation charges, namely, persons and property

the half that in their charters from the States they each the whole of the continent, over the ter had a contract, express or implied, that they might ritories for half a dozen States, through which regulate and establish their own fares and rates of they are carried without change of car or break transportation. These two questions were of priing bulk.


mary importance, and though it is true that, as Of the members of the court who concurred in incidental or auxiliary to these, the question of those opinions, there being two dissentients, but the exclusive right of congress to make such regthree remain, and the writer of this opinion is lations of charges as any legislative power had the one of the three. He is prepared to take bis share right to make, to the exclusion of the States, was of the responsibility for the language used in presented, it received but little attention at the those opinions, including the extracts above pre hands of the court, and was passed over with the sented. He does not feel called upon to say remarks in the opinions of the court which have whether those extracts justify the decision of the been cited. Illinois court in the present case. It will be seen The Case of State Freight Tax, 15 Wall. 232, from the opinions themselves, and from the argu which was decided only four years before these meuts of counsel presented in the reports, that the cases, held an act of the legislature of Pennsylquestion did not receive any very elaborate con vania void, as being in conflict with the commerce sideration, either in the opinions of the court or in clause of the constitution of the United States, the arguments of counsel; and the question how which levied a tax upon all freight carried through far a charge made for a continuous transportation the State by any railroad company, or into it over several States, which included a State whose from any other State, or out of it into any other laws were in question, may be divided into separ State, and valid as to all freight, the carriage of ate charges for each State, in enforcing the power which was begun and ended within the limits of of the State to regulate the fares of its railroads, the State, because the former was a regulation of was evidently not fully considered. These three interstate commerce, and the latter was a comcases, with others concerning the same subject, merce solely within the State, which it had a right were argued at the same time by able counsel and to regulate. And the question now under considin relation to the different laws affecting the sub eration-whether these statutes were of a class ject, of the States of Illinois, Iowa, Wisconsin, which the legislature of the States could enact in and Minnesota; the main question in all the cases the absence of any act of congress on the subject being the right of the State to establish any lim -was considered and decided in the negative. itation upon the power of the railroed companies It is impossible to see any distinction, in to fix the price at which they would carry pass its effect upon commerce of either class, beengers and freight. It was strenuously denied, tween a statute wbich regulates the charges for and very confidently, by all the railroad compan transportation and a statute which levies a tax for ies, that any legislative body whatever had a the benefit of the State upon the same transportaright to limit the tolls and charges to be made by tion; and, in fact, the judgment of the court in the carrying companies for transportation. And the State Freight Tax Case rested upon the the great question to be decided, and which was ground that the tax was always added to the cost decided, and which was argued in all those cases, of transportation, and thus was a tax, in effect, •was the right of the State within which a railroad upon the privilege of carrying the goods through company did business to regulate or limit the the State. It is also very difficult to believe that amount of any of these traffic charges. The im the court consciously intended to overrule the portance of that question overshadowed all others, first of these cases without any reference to it in and the case of Munn v. Illinois, was selected by the opinion. the court as the most appropriate one in which to At the very next term of the court, after the degive its opinion on that subject; because that case livery of these opinions, the case of Hall v. presented the question of a private citizen, or un DeCuir, 95 U. S. 485, was decided, in which the incorporated partnership, engaged in the ware same point was considered, in reference to a stathousing business in Chicago, free from any claim ute of the State oi Louisiana, which attempted to of right or contract under an act of incorporation regulate the carriage of passengers upon railroads, of any State whatever, and free from the question steamboats and other public conveyances, and of continuous transportation through several which provided that no regulations of any comStates. And in that case the court was presented panies engaged in that business should make any with the question, which it decided, whether any discrimination on aecount of race or color. This one engaged in a public business, in which all the statute, by its terms, was limited to persons en

gaged in that class of business within the State, as is the one now under consideration; and the case presented in 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 accommodations 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 inter-State 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:

66 The line which separates the powers of the States from this exclusive power of congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances, it would be a useless task to undertake to fix an arbitrary rule by which the line must, in ail cases, be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved; but we think it may safely be said that State legislation wbiob 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 intent 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 tributcries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national

If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not be but 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 pas

sengers 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 instrumentalities by which the transportation from one point to the other is effected, it is but one voyage, -18 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 Ilinois 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; Brown v. Maryland, 12 Wheat. 446. 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.

The argument on this subject can never be better stated than it is by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 195, 196. He there demonstrates that commerce among the States, like commerce with foreign pations, is necessarily a commerce wbich crosses State lizes, and exteuds 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 transporta




tion, now largely superseded by railroads, he says: “The power of congress, then, comprehends navagation within the limits of every State in the union, so far as that navigation 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 probibition now under consideration applies.” Page 197. 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.

In the case of Telegraph Co. v. Texas, 105 U. S. 460, 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 Case of State Freight Tax, 15 Wall. 232, 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 upor 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 thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale 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 in the cases already cited.”

In the case of Welton v. Missouri, 91 U. S. 275, 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 a 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."

The County of Mobile v. Kimball, 102 U. S. 691, 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."

In the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 204, s. C., 5 Sup. Ct. Rep. 826, decided two years ago, the court declared, without dissent, that "it needs no argument to show that the commerce with foreign nations and 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., 117 U. S. 34, s. C., 6 Sup. Ct. Rep. 635, 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 & Trust Co., 116 U. S. 307, s. C., 6 Sup. Ct. Rep. 334, 388, 1191, 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 Ilinois upon the case of Munn v. Illinois, and the other cases on which the court relies.

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.

Let us see precisely what is the degree of interference with transportation of property or persons from one State to another which this statute proposes. A citizen of New York has goods which he desires to have transported by the railroad companies from that city to the interior of the State of Illinois. A continuous line of rail over which a car loaded with goods can be carried, and is carried habitually, connects the place of shipment with the place of delivery. He undertakes to make a contract with a person engaged in the carrying business at the end of this route from whence the goods are to start, and he is told by the carrier: “I am free to make a fair and reasonable contract for this carriage to the line of the State of Ilipois, but when the car which carries these goods is to cross the line of that State, pursuing at the same time this continuous track, I am met by a law of Ilinois which forbids me to make a free contract concerning this transportation within that State, and subjects me to certain rules by which I am to be governed as to the charges which the same railroad company in Illinois may make, or has made, with reference to other persons and other places of delivery.” So that while that carrier might be willing to carry these goods from the city of New York to the city of Peoria at the rate of 15 cents per hundred pounds, he is not permitted to do so, because the

Illinois railroad company has already charged at the United States under the commerce clause of the rate of 25 cents per hundred pounds for car the constitution. riage to Gilman, in Illinois, which is 86 miles The judgment of the supreme court of Ilinois shorter than the distance to Peoria. So, also, in is therefore reserved, and the case remanded to the present case the owner of corn, the principal that court for further proceedings in conformity product of the country, desiring to transport it with this opinion. from Peoria, in Illinois, to New York, finds a railroad company willing to do this at the rate of 15

NOTE.-To annotate a case in which Mr. Justice Mil. cents per hundred pounds for a car load, but is -ler delivers the opinion of the court is a work very compelled to pay at the rate of 25 cents per bun difficult to perform,to the satisfaction of the annotator dred pounds, because the railroad company has or of any body else. The learned judge usually exreceived from a person residing at Gilman 25

hausts the subject, citing every case that supports his cents per hundred pounds for the transportation

conclusion and answering every dictum that contra.

dicts it. of a car load of the same class of freight over the

Nevertheless, we may remark, that the ruling in this same line of road from Gilman to New York.

case is a new departure in one important particular. This is the result of the statute of Illinois, in its It abrogates the doctrine heretoform fully received, endeavor to prevent unjust discrimination, as and sanctioned by many decisions of the Supreme construed by the supreme court of that State. Court of the United States, that unless congress acts in The effect of it is, that whatever may be the rate

reference to the relations of railroad companies to inof transportation per mile charged by the railroad

terstate commerce, it is certainly within the power of company from Gilman to Sheldon, a distance of

a State, to regulate its fares etc., so far as they are of

domestie concern. The principal case assuredly over23 miles, in which the loading and the unloading

rules the case in which this doctrine is held, for if of the freight is the largest expense incurred by

there is anything purely of "domestic concern,” it is the railroad company, the same rate per mile a discrimination between the contracts made by the must be charged from Peoria to the city of New same railroad company with two citizens of the same York. The obvious injustice of such a rule as this State, for transportation to the same point without which railroad companies are by heavy penalties

the State, the route outside the State being identical compelled to conform to, in regard to commerce

and the variation being in those portions of the car

riage which lies within the State. It would be other. among the States, when applied to transportation

wise, as it seems to us, if the variation were in that which includes Illinois in a long line of the car

part of the route which lay outside of the State in riage through several States, shows the value of which the contract was made. That the contracts the constitutional provision which confides the were units in eacb case seems to be immaterial, as the power of regulating interstate commerce to the discrimination related only to those parts of the concongress of the United State:, whose enlarged

tracts which were to be performed within the State, view of the interests of all the States, and of the

and, under deep submission, it may be said the unity railroads concerned, better fits it to establish just

of the contract does not control, but the locus of the

difference of performance does. and equitable rules.

However, that may be, and we do not presume to Of the justice or propriety of the principle controvert the conclusions of the Supreme Court of which lies at the foundation of the Illinois statute the United States, it may be of some interest to see to it is not the province of this court to speak. As what extent the doctrine which this case establishes restricted to a transportation which begins and

affects the prior decisions of the same court. In a ends within the limits of the State, it may be very

leading and early case, it was held, Chief Justice

Marshall delivering the opinion of the court, that a just and equitable, and it certainly is the province

State might dam up a navigable tide water creek of the State Legislature, to devermine that ques wholly within its boundaries, as congress had not tion; but when it is attempted to apply to trans acted on the subject of small navigable creeks under portation through an entire series of States a its power to regulate commerce among the States. So, principle of this kind, and each one of the States in a later case,3 a bridge was held to rightfully obstruct shall attempt to establsh its own rates of transpor

the navigation of the Schuylkill river, because congress

had not spoken on the subject of commerce among the tation, its own methods to prevent discrimination

States. And in the case of the draw bridges over the in rates, or to permit it, the deleterious influence

Chicago river, 4 it was held that though congress might upon the freedom of commerce among the States, well, under its commercial power, take charge of the and upon the transit of goods through those whole matter, “to the extent necessary to protect, preStates, cannot be over-estimated. That this serve, and improve the free navigrtion" of the river, species of regulation is one which must be, if es

and that until congress acts upon the subject the tablished at all, of a general and national char

power of the State over bridges across its navigable

streams is plenary. acter, and cannot be safely and wisely remitted to

There are other like decisions on this subject, one local rules and local regulations, we think is relating to wharves,5 another to pilotage and still clear from what has already been said. And if it others to various other subjects of like nature. All be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court

1 Peik v. Chicago etc. Co., 94 U. S. 164. concedes it to be, it must be of that national

2 Willson v. Blackbird, etc. Co., 2 Pet. 245 character; and the regulation can only appropri 3 Gilman v. Philadelphia, 3 Wall 713. ately exist by general rules and principles, which

4 Escanaba v. Chicago, 107, U. 8. 678.

5 Transportation Co. v. Parkersburg, 107 U. 8. 691. demand that it should be done by the congress of 6 Cooley v. Portwardens, 12, How. 299

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