

                                 CHAPTER IV.
			 THE REGULATION OF COMMERCE.
29. The constitutional provisions.
30. The historical reason for the provisions.
31. Commerce defined.
32. Regulation of commerce defined.
33. The general principles defining the limits of national and state
    regulation.
34. The internal commerce of a state.
35. Navigable waters and the soil under them.
36. Preferences of ports.
37. Duties upon exports.
38. Duties upon tonnage.
39. Port dues.
40. Pilotage.
41. Regulation of navigation.
42. Port regulations.
43. Quarantine.
44. Ferries.
45. Bridges and dams.
46. Improvements of navigation.
47. Wharves and piers.
48. State duties upon imports and exports.
49. State inspection laws.
50. Taxation discriminating against goods from other states.
51. The original package doctrine.
52. Transportation: (a) State regulation in the exercise of the police power;    
    Regulation by taxation; (c) The Interstate Commmerce Act.
53. The Anti-trust law.
54. Telegraphs.
55. Commerce with tbe Indian tribes.

The constitutional provisions.
29. The Constitution of the United States contains three clauses
which directly bear upon the regulation of commerce. Section 8 of
Article I declares that "the Congress shall have power....to
regulate commerce with foreign nations, and among the several
states, and with the Indian tribes. " Section 9 of the same article
enumerates among the exceptions from the powers granted to the
United States, that "no tax or duty shall be laid on articles
exported from any state. No preference shall be given by any
regulation of commerce or revenue to the ports of one state over
those of another: nor shall vessels bound to, or from, one state,
be obliged to enter, clear, or pay duties in another." Section 10 of
the same article, in its enumeration of the expressed restrictions
upon the powers of the states, declares that "no state shall,
without the consent of the Congress, lay any imposts or duties on
imports or exports, except what may be absolutely necessary for
executing its inspection laws: and the net produce of all duties
and imposts, laid by any state on imports or exports, shall be for
the use of the treasury of the United States; and all such laws
shall be subject to the revision and control of the Congress. No
state shall, without the, consent of Congress, lay any duty of
tonnage." The constitutional provisions are, in effect, first, a
grant to Congress of the power of regulatiiag foreign and interstate
commerce, with the expressed restriction that the United States
shall not lay any tax or duty on articles exported from any state,
nor give preference by any regulation to the ports of one state over
those of another, nor oblige vessels bound to or from one state to
enter, clear, or pay duties in another; second, an implied restraint
upon state regulation of foreign or interstate commerce; and third,
an expressed prohibition of state duties on imports, exports, or
tonnage, save under certain defined restrictions, the most material
of which is the consent of Congress. These constitutional provisions
are not only in full force and vigour today, but their application
is wider and more far reaching than the framers of the Constitution
imagined to be within the bounds of possibility. The only commerce
that they knew was the foreign and coastwise commerce that was
carried in ships. They little thought that the time would ever come
when the commerce so carried would be far exceeded in amount and in
value by the internal commerce of the country, yet that time has
come. In the one hundred and seventeen years that have passed since
the adoption of the Constitution, the country has made great
strides. Less than three millions of people have grown to be more
than seventy millions in number. Discoveries in science and
inventions in the arts have developed new subjects of trade, and
have created new agencies of commerce. Steam and electricity have
been made to do man's bidding. Sailing vessels have given way to
steamships, and railways have superseded turnpike roads, Conestoga
wagons and canals for the movement of intraterritorial freight.
Telegraphs and telephones have annihilated distance. The growth of
population, the creation of new subjects of trade, and the
improvements in the movement of traffic have necessarily resulted in
a vast enlargement in the volume of commerce. In view of these great
changes in the conditions of the problem, it is more than ever
important that the constitutional limits upon the regulation of
commerce should be clearly comprehended, and that the line which
separates the provinces of federal and of state authority over this
subject of national interest should be, so far as is possible,
accurately defined

The historical reason for the provisions.
30. It is an historical fact that the Constitution was framed and
adopted mainly because all of the states had suffered under the
Confederation by reason of the selfish commercial policy of England
in closing her markets to goods of American manufacture, and because
some of the states had also suffered by reason of the no less
selfish commercial policy of other states in the imposition of heavy
duties on imported goods, and in the enforcement of vexatious
restrictions upon trade. There were great differences of opinion as
to other features of the Constitution, yet, in the convention of
1787 and among the people, there was practical unanimity as to the
expediency of vesting in the government of the United States the
power of so regulating commerce as to overcome the disintegrating
forces which threatened the loss of all that had been gained by the
success of the Revolution.(1) But if the framers of the Constitution
had ever imagined that the power of regulating commerce would be
expanded as it has been by judicial construction, no such power
would have been vested in Congress.

Commerce defined.
31. The term "commerce," as Marshall, C. J., construed it,(2) means
not only traffic, but also commercial intercourse in all its
branches, including transportation by sea and on land, importation
and exportation, and all that is necessarily incident thereto. As
the Constitution is a frame of government intended to endure for all
time, it follows that the term "commerce" must receive a
construction sufficiently elastic to comprehend not only the
subjects and instrumentalities of commerce known and used when the
Constitution was framed, but also all present and future subjects of
commerce and agencies of commercial intercourse.(3) Yet everything
that is connected with commerce is not necessarily commerce. Bills
of exchange may be given in payment for goods to be imported, and
yet such bills are mere personal obligations, and are not in
themselves subjects of commerce.(4) Money assessed for state
taxation is not by a subsequent investment in a subject of commerce
relieved from such taxation.(5) So, also, a contract of insurance
is not "an instrumentality of commerce, but a mere incident of
commercial intercourse."(6) "A state may, therefore, prohibit
foreign insurance companies and their agents from effecting within
its territory contracts of insurance, marine, or otherwise, save
upon such conditions as the state may prescribe;(7) but a state
cannot prohibit its citizens from effecting in another state a
contract of insurance.(8) Acts of Congress(9) having authorized the
registration in the patent office of devices, in the nature of
trademarks, made the wrongful use thereof a cause of action for
damages, and punished by fine and imprisonment the fraudulent use,
sale, and counterfeiting thereof, it was held (10) that the
statutes in question were unconstitutional because not limited in
terms, or by the essential nature of their subject matter, to the
regulation of trademarks in their relation to foreign and interstate
commerce. A subsequent statute(11) has provided for the registration
and protection of trademarks used in foreign and interstate
commerce, and is not open to the objection which invalidated the
prior statutes. On the other hand, bills of lading of goods sold and
transported in the course of interstate Commerce are, by reason of
their representative character, entitled to protection as
commerce,(12) and the transmission of ideas by telegraph is
commerce, for the reason that in the development of modern business
methods the telegraph has become indispensable as a means of
intercommunication in commercial intercourse.(13) Would not the same
reasoning apply, in the case of goods admittedly subjects of
commerce, to the trademarks on such goods, the bills of exchange
drawn for the price of the goods, and the policies of insurance
against the loss of the goods by fire or by the perils of
navigation? Insurance, commercial paper, and trademarks are
certainly as clearly related to, and as truly incidents of,
commerce, as a telegraphic inquiry as to the state of the market, or
a telegraphic order for the forwarding of the goods, though, unlike
the bill of lading, they do not represent the goods. Lottery tickets
are subjects of traffic, and the carriage of such tickets by
independent carriers from one state to another is interstate
commerce.(14) The transfer of shares of railway companies is
interstate commerce when such shares are transferred for the purpose
of vesting in a holding company a majority of the shares of two
competing railways engaged in interstate traffie.(15)

Regulation of commerce defined.
32. To regulate commerce is "to prescribe the rule by which commerce
is to be governed."(16) The power to regulate is unrestrained, and
it may, therefore, either control or prohibit. Commerce may be
directly regulated by legislation enacted in the exercise of the
police power and prescribing the manner in which the operations of
commerce are to be conducted, or it may be indirectly regulated by
the imposition of taxation upon its instrumentalities or
subjects.(17) Taxation has been defined(18) as the compulsory
exaction by a government, in the exercise of its sovereignty, of a
payment of money or surrender of property by any person, natural or
corporate, who, or whose property so taxed, is subject to the
sovereign power of that government.(19) The police power may be
defined to be that function of government by the exercise of which
all persons who are subject to the sovereignty of the govervment
exercising the power are, for reasons of public policy, restrained
in their use or enjoyment of some right of person or of
property.(20) The police power may attain its end by absolutely
prohibiting the exercise of a particular right or by so regulating
the exercise of that right as to permit its use under conditions,
and, if the power exist, the extent to which it may be exercised in
any case is limited only by the legislation of the government in
which the power may be vested, unless farther restraint be imposed
by the Constitution of the United States or by the constitution of
the state. Congress cannot, in the exercise of the power to
regulate, tax commerce;(21) and while the states cannot regulate
foreign or interstate commerce, they are not prohibited from taxing
either its instrumentalities or subjects, provided that taxation be
imposed thereon as component parts of the mass of property in the
state, and provided also that that which is in form taxation be not
in substance a restriction upon, or a prohibition of, foreign or
interstate commerce. The essential difference between taxation of
property, and regulation of commerce in the guise of taxation, is
illustrated by every case in which the court has had to determine
whether any particular tax imposed under state authority on an
instrumentality or subject of foreign or interstate commerce be, or
be not, forbidden by the Constitution.(22) In the exercise of its
power over commerce, Congress has, in statutes too numerous to
mention, imposed duties on imports and even prohibited importations
of certain goods(23) and regulated, among other things, the
registration and recording of the titles of ships,(24) the clearance
and entry of ships and steamers,(25) the tonnage duties payable to
the United States by vessels,(26, navigation, including sailing
rules, and the life-saving service(27) the transportation of
passengers and merchandise by sea,(28) the shipping of sailors,(29)
and their pay and discharge,(30) the lighthouse service,(31) the
coast survey,(32) the building and use of bridges,(33) the
improvement of rivers and harbours(34) and telegraphs.(35) It has
authorized the transportation of government supplies, and mails,
and troops by railway, and the connection of railways of different
states so as to form a continuous line;(36) it has permitted the
states to regulate the storage and sale of original packages of
intoxicating liquors;(37) it has regulated the interstate
transportation of live stock;(38), it has provided for arbitration
between interstate railroad companies and their employees;(39) it
has required the use of automatic couplers on interstate trains;(40)
it has, by the Interstate Commerce Act and its amendments,(41)
regulated the interstate transportation of passengers and freight by
railways and constituted a commission to carry the statute into
effect; and it has prohibited the making of contracts in restraint
of interstate commerce.(42) The states have facilitated foreign and
interstate commerce by the improvement of navigation, the
construction of railways, wharves, and bridges, and they have
incidentally affected it by the enactment of pilotage, quarantine,
and police laws. The states have also regulated their internal
commerce by taxation and by police legislation.

The general principles defining the limits of national and state regulation.
33. Foreign commerce is, obviously, that which is carried on between
a foreign port, or a point in a foreign eountry, and a port of, or a
point in, the United States. Interstate commerce is that which is
carried on between ports, or points, in different states; and
certainly that commerce which begins, moves, and ends, exclusively
with in a state must be regarded as internal commerce and as such
subject to state taxation and regulation. Where commerce begins
within a state, passes beyond the territory of that state and
through part of another state, and ends in the state of its origin,
it is regarded as sufficiently internal commerce to be subject to
taxation in the state of its origin and destination "in respect of
receipts for the proportion of the transportation within the
state."(43) On the other hand, transportation under such conditions
is subject only to the regulation of the United States and not to
the regulation of the state(44) It has also been held that
navigation on the high seas between ports of the same state is
subject to regulation by the United States.(45) A commodity is not
to be regarded as a subject of foreign or interstate commerce until
it has begun to move in trade from one country or state to
another(46) for, until the commodity is actually shipped or started,
"its exportation is a matter altogether in fieri, and not at all a
fixed and certain thing.(47) The general distinction as to the
respective powers of the United States and the states over commerce
was clearly put by Marshall, C. J.,(48) when he said, "The genius
and character of the whole government seems to be that its action is
to be applied to all the external concerns of the nation, and to
those internal concerns which affect the states generally, but not
to those which are completely within a particular state, which do
not affect other states, and with which it is not necessary to
interfere for the purpose of executing some of the general powers of
the government." Therefore, the internal commerce of a state is
exclusively a subject of regulation by that state; and foreign and
interstate commerce are subjects of regulation by Congress. But, as
Curtis, J., said, the power to regulate foreign and interstate
"commerce embraces a vast field, containing not only many, but
exceedingly various, subjects, quite unlike in their nature; some
imperatively demanding a single uniform rule, operating equally on
the commerce of the United States in every port, and some.....as
imperatively demanding that diversity which alone can meet the local
necessities."(49) Therefore, where the subject is national in its
character and demands uniformity of regulation,  Congress alone can
legislate, and, when Congress has not legislated, it necessarily
follows that that subject is to be free from all legislation
whatever. The so called "doctrine of the silence of Congress" means
this, and nothing more than this.(50) On the other hand, where the
subject is not national in its character, and where local
necessities require diversity of regulation, the states may
legislate, and their legislation will be controlling and effective
until, and only until, congressional legislation shall supersede the
state legislation.(51)

The internal commerce of a state.
34. As Chase, C.J., said,(52) referring to the internal commerce of
a static, "Over this commerce and trade Congress has no power of
regulation nor any direct control. This power belongs exclusively to
the states." The United States, therefore, may not prohibit the sale
within the territory of a state of illuminating oil inflammable at
less than a specified temperature;(53) nor license the sale of
liquor in violation of the laws of the state;(54) nor does a license
granted by the United States exempt the licensee from state
taxation on the business so conducted;(55) nor do letters patent
granted for an invention confer upon the patentee the right of
selling the patented article in violation of the laws of the
state.(56) The cases which illustrate the power of the state over
its internal commerce are hereinafter referred to, and the rule
deducible from them is that, while each state did not, by the
adoption of the Constitution, surrender its ordinary local powers of
self government operative upon all persons and property which
exist, or may come, within its territory, and which merge in the
mass of persons and property subject to its jurisdiction, yet,
nevertheless, the territorial limits of each state's jurisdiction,
the grant to the government of the United States of powers
conflicting with state sovereignty, and a due regard to the rights
of citizens of other states, must be held to limit the exercise by
each state of its otherwise illimitable powers, by the restriction
that those powers are not to be so exercised as to interfere with
the full execution of the powers granted to the United States.
Therefore, persons or property brought within the territory of a
state by the exercise of any federal power, must be exempted from
obstructive state control until the federal power has ceased to
operate, and until the persons or property on which it acted have
merged in the mass of persons or property within the territory of
the state.(57) On the same principle, federal agencies are exempted
from any such state regulation as hinders the agent in the full
performance of his or its duty to the government of the United
States.

Navigable waters and the soil under them.
35. Before the Revolution, the title to navigable waters and to the
soil under them was vested in the crown, or in its grantees. After
the Revolution, the people became sovereign, and henceforth the
title to navigable waters within the jurisdiction of a riparian
state and to the soil under them became vested in that state for the
public use of its citizens.(58) After the adoption of the
Constitution, as before, the title to navigable waters and to the
soil under them and the right to fish therein remained in the
riparian state, its proprietary title extending in the case of
inland waters constituting its boundary (59) from ordinary high
water mark ad medium filae, and in the case of the sea and its bays,
to the distance that the international jurisdiction of the United
States extended; and by force of the Constitution, the United States
acquired only the right to exercise over navigable waters its power
of regulating navigation, and states which were admitted to the
union subsequently to the adoption of the Constitution have, of
course, in this respect the same rights of sovereignty and
jurisdiction as the original thirteen states. (60) Therefore, a
state may rightfully regulate the exercise of the right of fishing
in its navigable waters, and enforce by judicial proceedings a
forfeiture of vessels whose navigators fail to conform to the
regulations so prescribed, and a license to navigate granted by the
United States confers no immunity from the operation of such
regulations.(61)  The right of the people of a state to fish in its
navigable waters comes not from their citizenship alone, but from
their citizenship and property combined,"(62) and it is, therefore,
a right which does not by force of the Constitution vest in the
citizens of other states. The power granted to the United States of
jurisdiction in admiralty does not carry with it a cession of
navigable waters, or of general jurisdiction over them, and,
therefore, a murder committed on a vessel of the navy of the United
States while at anchor in navigable waters within the jurisdiction
of a state is not cognizable in a court of the United States.(63)

Preferences of ports.
36. The Constitution declares that "no preference shall be given by
any regulation of commerce or revenue to the ports of one state over
those of another."(64) This prohibition is obviously intended to
guard against favouritism in customs regulations, and, therefore,
does not apply to the diversion of water from one navigable river to
another in an improvement of navigation,(65) nor to the legalization
by an act of Congress of a bridge over navigable waters, though
indirectly obstructing the commerce of a port.(66)

Duties upon exports.
37. The United States are expressly forbidden to tax exports.(67)
This prohibition applies to foreign, and does not apply to
interstate, commerce(68) nor to goods "imported from the
United States" into Porto Rico.(69) Internal revenue stamps required
to be placed by the manufacturer upon articles for exportation do
not fall within the prohibition.(70) On the otherhand, a specific
stamp duty imposed upon bills of lading covering goods exported is a
tax upon the articles covered by the bill of lading, and, therefore,
a tax upon exports.(71)

Duties upon tonnage.
38. The Constitution in express terms forbids the states to impose
duties on tonnage. Setion 10 of Article I of the Constitution
declares that "no state shall, without the consent of Congress, lay
any duty on tonnage." The word "tonnage," as applied to American
shipping, means  "their entire internal capacity, expressed in tons
of one hundred cubical feet each, as estimated and ascertained by
those rules of admeasurement and computation(72) which are
prescribed by the acts of Congress.(73) The constitutional
prohibition prevents state taxation of "watercrafts plying in the
navigable waters of the state.....at the rate of $1 per ton of
registered tonnage.(74) Nor can a state require that every vessel
arriving at a port of the state shall pay to the port wardens a
fixed sum whether the wardens be, or be not, called on to perform
auy services for the vessel;(75) nor compel every vessel arriving at
any quarantine station on the coast of the state to pay a fixed sum
per ton;(76) nor require every steamboat mooring in any port of the
state to pay a sum regulated by the tonnage of the boat;(77) nor
require all vessels entering a certain port to load or unload, or
making fast to any wharf therein, to pay a sum regulated by the
registered tonnage of the vessel.(78) In each one of these cases,
the taxation imposed by the state would have been void as an
attempted regulation of interstate commerce, had there been no,
express prohibition of state tonnage duties.

Port Dues.
39. Port dues, that is, charges imposed on vessels as instruments of
commerce, and payable by all vessels entering, remaining in, or
leaving a port, by reason of such entry, stay, or departure, and
without regard to services rendered to or received by the vessel,
are regulations of rightfully imposed under commerce, and as such
cannot be state authority.(79) Under this rule, as expounded in
Steamship Co. v. Port Wardens,(80) a charge of $5 per vessel payable
to the wardens "whether called on to perform any service or not, for
every vessel arriving in" the port of New Orleans, was held to be a
wrongful imposition. So also, under pretence of making port
regulations, a state cannot rightfully vest in the master and
wardens of a port, or in his deputies, a monopoly of the survey of
the hatches of seagoing vessels coming to the port, or of damaged
goods on such vessels, for such a monopoly is a burden upon, and
therefore a regulation of, foreign and interstate commerce.(81) The
prohibition of state duties on tonnages(82) forbids the imposition
by a state of port dues in the form of a tax of $5 for the first
hundred tons and 1 1/2 cents for each additional ton payable by
vessels owned in another state and entering a harbour of the taxing
state in the pursuit of commerce,(83) and also of a tax similarly
proportioned on "all steamboats which shall moor or land in any part
of" a state port.(84)

Pilotage.
40. As the thirteen original states were, before the ratification of
the Constitution, existing governments, they had, with the obvious
exception of New Hampshire, enacted laws regulating pilotage. The
first Congress(81) declared that "all pilots.....shall continue to
be regulated in conformity with the existing laws of the states
respectively wherein such pilots may be, or with such laws as the
states may respectively hereafter enact for the purpose, until
further legislative provision shall be made by Congress. It has
been held that, pilotage being a subject of local concern, the
states may regulate it so long as, and to the extent that, Congress
does not legislate with regard to it.(86) A state may impose upon a
vessel refusing to take an offered pilot the forfeiture of half
pilotage fees, and it may exempt from such forfeiture vessels
engaged in a particular trade.(87) The forfeiture of half pilotage
fees being, not in the nature of a penalty, but of compensation
under an implied contract,(88) those fees must be paid though the
pilot's services were tendered and refused before the vessel had
come within the jurisdiction of the state,(89) and though the
statute authorizing the recovery was repealed after the services of
the pilot were tendered and refused, but before the action was
brought to recover therefor.(90) Such statute may impose a
compulsory obligation on foreign vessels.(91) But a state may not
discriminate in its pilotage regulations, as by requiring vessels of
some states to pay half pilotage fees and exempting vessels of
other states from that requirement; nor can a vessel under the
control of a pilot licensed under the laws of the United States be
required to take a pilot under the laws of a state.(92)

Regulation of navigation.
41. The power to regulate foreign and interstate commerce includes
the control of navigation in the prosecution of such commerce. The
United States may, therefore, license vessels navigating waters
within the territorial jurisdiction of a state and plying between
ports of different states, and a state may not create a monopoly
interfering with the freedom of such navigation.(93) The United
States may require, under a penalty, the inspection and licensing of
a steam vessel(94) engaged in the transportation on a state's
internal waters of goods from, or destined to, points in other
states.(95) A state may not require vessels licensed by the United
States to carry on the coasting trade and plying between a port in
that state and ports in other states,(96) or vessels also licensed
by the United States and employed as lighters and towboats in a port
of a state in aid of vessels engaged in commerce, either foreign or
coastwise,(97) to make return to the local authorities of the names,
places of residence, and respective interests of the owners of such
vessel state may not require "those engaged in the transportation of
passengers among the states to give to all persons traveling within
that state, upon vessels employed in such business, equal rights and
privileges in all parts of the vessel without distinction on account
of race or colour, "for such a statute acts directly upon the
business, as it comes into the state from without, or goes out from
within.(99) On the other hand, a state may grant an exclusive
monopoly of the navigation of an internal waterway which, by reason
of a lack of outlet or other connection with any possible system of
interstate or foreign transportation, is available only for the
internal commerce of the state, and on such a waterway an United
States coasting enrollment and license is inoperative.(100)

Port regulations.
42. A state may establish port regulations, prescribing where a
vessel may lie in harbour, how long she may remain there, and what
lights she must show at night; thus in The James Gray v. The John
Fraser,(101) an admiralty cause of damage resulting from a collision
of the two vessels in Charleston harbour, that one was held to be in
fault, which had, by its failure to display lights in conformity
with the regulations of the port imposed under authority of the
state, been the cause of the collision. Taney, C. J., said(102)
"Regulations of this kind are necessary and indispensable in every
comnercial port, for the convenience and safety of commerce, and the
local authorities have a right to prescribe at what wharf a vessel
may lie, and how long she may remain there, where she may unload or
take on board particular cargoes, where she may anchor in the
harbour, and for what time, and what description of light she shall
display at night to warn the passing vessels of her position, and
that she is at anchor and not under sail. They are like to the local
usages of navigation in different ports, and every vessel, from
whatever part of the world she may come, is bound to take notice of
them and conform to them. And there is nothing in the regulations
referred to in the port of Charleston, which is in conflict with any
law of Congress regulating commerce, or with the general admiralty
jurisdiction conferred on the courts of the United States."
Ostensibly on the same principle, it was held in New York v.
Miln,(103) that a state may require under a penalty the master of
every passenger carrying vessel on arriving at any port within the
state to report to the state authorities the name, place of birth,
last legal settlement, age, and occupation of every passenger, the
statute under consideration being one enacted by New York in 1824,
and the court affirming its validity, on the ground that it was a
regulation, not of commerce, but police, and as such falling within
the reserved powers of the state. The authority of the case is,
however, much shaken by the admirably reasoned dissenting judgment
of Story, J., with whose conclusions Marshall, C. J., concurred
(104) and the result reached by the court is clearly inconsistent
with the later cases of Sinnot v. Davenport,(105) Foster v.
Davenport,(106) and the yet later cases, which hold that a state
cannot, directly or indirectly, tax the transportation of passengers
coming from foreign countries.(107)

Quarantine.
43. As Brown, J., said in Bartlett v. Lockwood,(108) "While, under
its power to regulate foreign and interstate commerce, the authority
of Congress to establish quarantine regulations, and to protect the
country as respects its commerce from contagious and infectious
diseases, has never in recent years been questioned, such power has
been allowed to remain in abeyance; and Congress, doubtless in view
of the different requirements of different climates and localities,
and of the difficulty of framing a general law upon the subject,
has elected to permit the several states to regulate the matter of
protecting the public health as to themselves seemed best. "A state
may, therefore, prohibit the entry into its territory of physically
infected persons or goods, and it may provide for an examination of
all persons or goods coming into its territory in order to determine
whether or not they be physically infected, and to defray the
expenses of such sanitary examinations it may colleet charges,
provided that such charges be not in the form of duties on tonnage
and that they do not unnecessarily interfere with foreign or
interstate commerce. A state may, therefore, require all vessels
coming into its ports to stop at designated quarantine stations,
submit to a sanitary examination, and pay therefore fees rated in
amount in proportion to the maritime class to which the vessel may
belong and equal in amount for all vessels of the same class.(109)
On the other hand, a state cannot, for the purpose of defraying the
expenses of enforcing her quarantine regulations, impose on vessels
entering her harbours in the prosecution of commerce, taxes based
upon the tonnage of the vessel.(110) A state may enact statutes
declaring that persons transporting, or having in their possession,
diseased animals are to be held liable for any damage caused by the
spread of disease by such animals,(111) and a state may authorize
its sanitary authorities to exclude from its territory animals
imported from localities in other states wherein those sanitary
authorities may determine epidemic diseases among such animals to
exist;(112) but a state may not, under the pretext of quarantine
laws, regulate interstate commerce, as by prohibiting the driving or
conveyance of Texan, Mexican, and Indian cattle into the state
between the 1st of March and the 1st of November in any year,(113)
or by prohibiting the sale of meat which has not been inspected on
the hoof within the state.(114) The test is, as stated by, McKenna,
J., "whether the police power of the state has been exercised
beyond its province, exerted to regulate interstate commerce,
exerted to exclude without discrimination the good and the bad, the
healthy and the diseased, and to an extent beyond what is necessary
for any proper quarantine.... The prevention of disease is the
essence of a quarantine law. Such a law is directed not only to the
actually diseased, but to what has become exposed to disease." (115)

Ferries.
44. A ferry is "a franchise grantable by the state, to be exercised
within such limits and under such regulations as may be required for
the safety, comfort, and convenience of the public," (116) and such
a franchise confers the right of embarking and landing passengers
and freight at designated points on a water bank.(117) Such a
franchise is necessarily exclusive.(118) The state which grants the
franchise may annex conditions to its exercise, and may, therefore,
tax the ferry and its appliances. It may also tax the boats and
other personal property of the owner of the ferry, if that owner be
by residence subject to its jurisdiction.(119) On the other hand, a
state cannot tax ferry boats which only come within its jurisdiction
in the movement of interstate commerce.(120)

Bridges and dams.
45. Navigability in fact is the test of navigability in law. If a
lake, river, or stream "be capable in its natural state of being
used for purposes of commerce, no matter in what mode the commerce
be conducted, it is navigable in fact, and becomes in law a public
river or highway."(121) As navigable waters are no longer the sole,
nor, indeed, the main channels of commerce, and as that volume of
trade which is carried over such waters by bridges or viaducts is in
many cases entitled, by reason of its magnitude, to greater
consideration than that which is moved in boats upon the water, it
must be determined in the case of any bridge, or other obstruction,
whose erection or the method of whose construction is called into
question, whether or not the public interest will be promoted by its
erection or by its construction in the particular manner, and such a
matter is primarily ome for the decision of the legislature, rather
than of any court. As the subject is that of possible obstruction of
highways of foreign or interstate commerce, final jurisdiction is
necessarily vested in Congress,(122) which may forbid, or permit
upon conditions, the erection of a bridge under state
authority,(123) or may legalize a bridge already erected, pending a
suit to enjoin its construction,(124) or even after the Supreme
Court of the United States has entered a final decree declaring the
bridge as constructed to be an unlawful obstruction;(125) or may
reserve for future congressional action the approval of the
construction of any bridge under an act of the legislature of any
state over or in any "stream or other navigable water not wholly
within the limits of such state," and in any delegate to the
Secretary of War the power of approving bridges and other
obstructions in navigable waters wholly within the limits of any one
state, and may prohibit all obstructions not so approved.(126) This
congressional legislation does not deprive the states of authority
to bridge or otherwise obstruct intraterritorial streams, but only
creates "an additional and cumulative remedy to prevent such
structure although lawfully authorized, from interfering with
commerce,"(127) nor does it vest in the Secretary of War" the right
to determine when and where a bridge may be built."(128) Therefore,
subject to the paramount authority of the United States, as
exercised by Congress, or, under the legislation now in force, as
delegated to the Secretary of War, a state may partially obstruct by
bridges, or wholly obstruct by dams, navigable waters which are
wholly within its limits.(129) The power of bridging their navigable
waters is not affected in the states carved out of the Northwest
Territory by the provision in the ordinance of 1787 for the free
navigation of the Mississippi and the St. Lawrence "without any tax,
duty, or impost therefor,"(130) nor in the states of California,
Louisiana, or Oregon by the provisions of the acts of Congress
admitting them to the union and declaring their navigable waters to
be forever free.(131) A state cannot lawfully appropriate water for
its nonnavigable streams to such an extent as to impair the
navigation of its navigable streams.(132) In the case of the bridge
spanning the Ohio river and connecting the city of Cincinnati, in
the state of Ohio, with the town of Covington, in the state of
Kentucky, it was held by the majority of the court (133) that the
traffic across the river was interstate commerce, that the bridge
was an instrument of that commerce, and that Congress possesses the
power to fix the charges for the traffic over the bridge, the
authority of the state being limited to fixing tolls exclusively
within its territory; but the minority of the court held that, as
Congress had made no provisions as to the tolls, it had thereby
manifested its intention that the rates of toll should be as
established by the two states. It has also been held that a state
may tax so much of an interstate bridge as is within its territory,
(134) and that a state may tax the capital stock of an interstate
bridge company ineorporated by it.( 135)

Improvements of navigation.
46. The United States may, in the discretion of Congress, authorize
or prohibit improvements in the water ways of foreign or interstate
commerce. It may change the established channels of rivers, (136)
and dredge harbours,(137) and the action of the United States is
exclusive of any right to the contrary asserted under state
authority. On the other hand, a state may exercise exclusive control
over such waterways as are wholly within its territory, and are not
used in movement of foreign or interstate commerce.(138) The
principle controlling the cases on this subject is nowhere more
clearly stated than by Field, J., who said, in County of Mobile v.
Kimball,(139) " The uniformity of commercial regulations, which the
grant to Congress was designed to secure against conflicting state
provisions, was necessarily intended only for cases where such
uniformity is practicable. Where from the nature of the subject or
the sphere of its operations the case is local and limited, special
regulations adapted to the immediate locality could only have been
contemplated. State action upon such subjects can constitute no
interference with the commercial power of Congress, for when that
acts the state authority is superseded. Inaction of Congress upon
these subjects of a local nature or operation, unlike its inaction
upon matters affecting all the states and requiring uniformity of
regulation, is not to be taken as a declaration that nothing shall
be done with respect to them, but it is rather to be deemed a
declaration that for the time being, and until it sees fit to act,
they may be regulated by state authority. The improvement of
harbours, bays, and navigable rivers within the states falls within
this last category of cases. The control of Congress over them is
to insure freedom in their navigation, so far as that is essential
to the exercise of its commercial power. Such freedom is not
encroached upon by the removal of obstructions to their navigability
or by other legitimate improvements. The states have as full control
over their purely internal commerce as Congress has over commerce
among the several states and with foreign nations; and to promote
the growth of that internal commerce and insure its safety they
have an undoubted right to remove obstructions from their harbours
and rivers, deepen their channels, and improve them generally, if
they do not impair their free navigation as permitted under the laws
of the United States, or defeat any system for the improvement of
their navigation provided by the general government. A state may,
therefore, if Congress does not otherwise direct, deepen and widen
the harbours on its coast,(140) Construct dams and locks in
navigable rivers, and levy tolls upon shipping using the improved
waterway,(141) but a state may not levy charges for an improved
waterway upon vessels whose draught is so light that the improvement
has been of no benefit to such vessels.(142)

Wharves and piers.
47. A state may build wharves on navigable waters and collect
reasonable tolls for the use thereof,(143) for such tolls, not being
impositions by virtue of sovereignty, are not taxes but are charges
for services rendered or for conveniences provided, and they are
claimed in right of proprietorship. Whether wharfage tolls be, or be
not, in fact reasonable is not a question of federal law, nor as
such cognizable in a court of the United States in cases other than
those in which the federal court has acquired jurisdiction by reason
of the citizenship of the parties.(144) Nevertheless, the right of a
state to build wharves and charge tolls therefor cannot be so
exercised as to discriminate in favour of the products of its own
territory and against those of other states.(145)

State duties upon imports and exports.
48. "Imports" are goods brought into a state from a foreign country,
and goods brought from one state into another are not
"imports".(146) As the power vested in the United States to regulate
commerce with foreign nations includes the power to impose duties on
the importation of foreign goods, and to license, on the payment of
those duties, the sale of the imported goods within any state, and
as there is an express constitutional prohibition of state duties on
imports and exports, excepting such duties as may be absolutely
necessary for executing the inspection laws of the state, it follows
that a state cannot require under a penalty importers of foreign
goods by the bale or package, and vendors of the same by wholesale,
to take out a license as a prerequisite to the sale of such imported
goods in the original form and package in which they are imported,
and before they become incorporated with the mass of property in the
state.(147) On the same principle, a state cannot impose an ad
valorem tax upon imported goods remaining in their original cases in
the hands of the importer, even though a similar tax be imposed on
all merchandise in the state;(148) and a state cannot tax an
auctioneer's sales of imported goods in their original cases and for
the account of the importers thereof.(149) Yet separately wrapped
packages of foreign dry goods brought into a state in wooden cases
are subject to state taxation upon their being taken from their
cases.(150) Merchandise brought from a foreign country and which by
the terms of the contract of purchase is not to be at the risk of
the purchaser until delivered to him in the port of entry, does not
come within the constitutional meaning of the term "imports," and
such goods, though in their original packages, may be taxed by the
state in whose port their purchase is completed by delivery.(151)

State inspection laws.
49. The object of inspection laws is to improve the quality of
articles produced by the labour of a country, to fit them for
exportation, or, it may be, for domestic use. They act upon the
subject before it becomes an article of foreign commerce, or of
commerce among the states, and prepare it for that purpose.(152)
Such laws prescribe some or all of certain requisites, such as the
quality of the article, the form, capacity, dimensions, weight, or
marking of the package, and, to enforce compliance with the
requirements, they provide for supervision by public officers.(153)
Therefore, a state may prohibit under a penalty the exportation,
without inspection, of articles produced in the state, such as
tobacco,(154) and may require the official measurement of coal,(155)
and lumber,(156) and the inspection of fertilizers.(157) The words
"inspection laws," "imports," and "exports," as used in the
Constitution, leaving exclusive reference to property, as
distinguished from persons,(158) a state per capita tax on
immigrants cannot be sustained as a means of executing the
inspection laws of a state.(159) But a state may not, under the
pretence of an inspection law, regulate interstate commerce, as by
requiring an inspection by a public officer, upon payment of fees,
of all meat slaughtered more than one hundred miles from the place
of sale, when there is no such requirement with regard to meat
slaughtered at a less distance from the place of sale;(16O) or by
requiring an inspection of all flour ground without the state, when
there is no such requirement as to flour ground within the
state;(161) or by prohibiting the sale of meat which has not been
inspected on the hoof within the state;(162) or by requiring, as a
prerequisite to the shipment of alcoholic liquors into the state, an
analysis by the state chemist of a sample thereof.(163)

Taxation discriminating against goods from other states.
50. A state may tax goods brought in from another state, though in
the hands of the consignee and in the original packages;(164) but a
state cannot by taxation discriminate against either the natural
products of, or the goods manufactured in, other states, whether by
requiring of every nonresident trader as a prerequisite to his sales
of other than agricultural products of or articles manufactured in
the state, a higher license fee than is required of traders in
domestic goods;(165) or by requiring payment of a license fee by
vendors of merchandise "not the growth, produce, or manufacture" of
the state, no license fee being required of vendors of domestic
merchandise;(166) or by charging vessels laden with the products of
other states for the use of public wharves, when vessels laden with
the products of the state are permitted to use such wharves without
charge;(167) or by requiring a non-resident merchant desiring to
sell by sample in the state to pay for a license to do that business
a sum to be ascertained by the amount of his stock in trade in the
state where he resides, and in which he has his principal place of
business;(168) or by imposing a tax on each selling agent of a
foreign dealer while not imposing a tax upon the selling agents of a
domestic dealer; (169) or by imposing a license tax upon wholesale
dealers in brewed or malt liquors but exempting from such tax all
dealers paying a lesser tax for the privilege of manufacturing
liquors within the state;(170) or by statutes under the guise of
inspection laws imposing discriminating taxes upon products of
other states, as, for instance, by, requiring that no meat
slaughtered one hundred miles or more from the place of sale should
be offered for sale unless previously inspected by a local official
and a fee paid theref or, while requiring no inspection to be made
of meat slaughtered within one hundred miles of the place of
sale;(171) or by requiring flour brought into the state and offered
for sale therein to be inspected by a state official and a fee paid
therefor, while requiring no inspection to be made of flour produced
within the state.(172) Nor can a state, under the act,(173) Which
was passed to legislatively overrule the Original Package Case(174)
establish, so far as regards the sale of intoxicating liquors, a
system which would in effect discriminate between interstate and
domestic commerce in commodities whose manufacture and use are
permitted by the state.(175) There is no unlawful discrimination in
requiring prepayment of the tax by vendors of the produets of other
states, while vendors of domestic goods are permitted to pay the
same tax on returns from time to time.(176) On the other hand,
nondiscriminating taxation may lawfully be imposed by a state, as
where a state levies a tax upon all peddlers of sewing machines
without regard to their place of manufacture,(177) or by taxing the
gross yearly commissions of all general agents selling on
commissions.(178) A state which taxes the traffic in any
intoxicating liquors at any place other than the place of
manufacture does not impose a discriminating tax upon a dealer in
liquors manufactured in another state.(179) Of course, one who
claims under these cases exemption from the burden of state taxation
must prove his right and must show a discrimination in taxation as
against goods brought in from another state.(180) The cases that
have been cited forbid only that state taxation which discriminates
in favour of the products of the taxing state and against goods
brought in from another state, but there are other cases which rest
upon the broad principle that a state cannot impose any tax or other
restriction "upon the citizens or inhabitants of other states for
selling, or seeking to sell, their goods in such state before they
are introduced therein,(181) the ground of decision being, that such
a tax does not subject to taxation goods brought from another state
in common with the mass of property in the taxing state, but that,
on the other hand, such a tax stands as a barrier in the way of the
manufacturer or merchant of another state and hinders him in the
introduction of his goods into the taxing state.(182) It is no
answer to this to say, as White, C. J., and Field and Gray, JJ.,
said(183) that if citizens of other states cannot be taxed in the
same way for the same business, there will be discrimination against
the inhabitants of the taxing state and in favour of those of other
states, for the conclusive reply is that while a state may without
discrimination tax its domestic trade, it cannot, with or without
discrimination, tax or otherwise regulate that interstate commerce
which has not been terminated by the merging of its subject in the
mass of property within the jurisdiction of the taxing state. It
must be remembered that, as Bradley, J., said (184) to carry on
interstate commerce is not a franchise or a privilege granted by the
state; it is a right which every citizen of the United States is
entitled to exercise under the Constitution and laws of the United
States."

The original package doctrine.
51. In Brown v. Maryland,(185) a statute of Maryland requiring,
inter alia, all importers of foreign articles, "by bale or package,"
to take out a license, was held to conflict with the prohibition of
state duties upon imports, as well as with the federal power of
regulating commerce, Marshall, C. J., saying (186) that "when the
importer has so acted upon the thing imported, that it has become
incorporated and mixed up with the mass of property in the country,
it has, perhaps, lost its distinctive character as an import, and
has become subject to the taxing power of the state; but while
remaining the property of the importer, in his warehouse, in the
original form or package in which it was imported, a tax upon it is
too plainly a duty upon imports to escape the prohibition in the
Constitution." Marshall, C. J., also said (187) that "Congress has a
right, not only to authorize importation, but also to authorize the
importer to sell," but he qualifies this (188) by his concession
that the police power "remains, and ought to remain, with the
states." It was subsequently held that the prohibition of duties
upon imports and exports had no reference to interstate
commerce;(189) and the congressional right of authorization of
importation and the consequent right of authorization of the sale of
imported articles have no relevancy to state taxation or to state
police control of interstate commerce, and, therefore, a state tax
upon sales at auction was held to be applicable to products of other
states, even though the articles were sold in their original and
unbroken packages.(190) It was also held that coal brought from
another state by vessel, and unladen, was subject to state taxation
in its port of destination.(191) On the other hand, it was held that
a state cannot forbid a common carrier to bring liquors into the
state, and that such legislation does not release the carrier from
liability in damages for his refusal to carry the liquor.(192) It
was also held that beer brought from another state in barrels and in
cases was not subject to seizure under a state statute prohibiting
the sale of intoxicating liquors,(193) the grouud of decision being
that beer is an article of lawful commerce, and, as such, entitled,
under the commerce clause, to be brought into every state, and, so
long as it remains in its original package, to be free from state
control. The doctrine of this case was obviously applicable to all
importation and transportation of intoxicating liquors, and it
necessarily was a cause of irritation to those people who
conscientiously believe it to be the duty of every government to
prohibit all traffic in, or use of, such liquors. There naturally
followed an act of Congress,(194) providing "that all
fermented....liquors....transported into any state or territory or
remaining therein for use, consumption, or sale or storage therein,
shall upon arrival in such state or territory be subject to the
operation and effect of the laws of such state or territory enacted
in the exercise of its police powers, to the same extent and in the
same manner as though such liquids or liquors had been produced in
such state or territory, and shall not be exempt therefrom by reason
of being introduced therein in original packages or otherwise." As
the court's ruling in Leisy v. Hardin was based upon an affirmation
of the constitutional exemption of articles of interstate commerce
from the exercise of the state's police power, there was some ground
for supposing that an act of Congress could not confer upon the
states any power in the premises, for, as Taney, C. J., had
said,(195) it will hardly be contended that an act of Congress can
alter the Constitution, and confer upon a state a power which the
Constitution declares it shall not possess. And if the grant of
power to the United States to make regulations of commerce is a
prohibition to the states to make any regulation upon the subject,
Congress could no more restore to the states the power of which they
were thus deprived, than it could authorize them to coin money or
make paper money a tender in the payment of debts, or to do any
other act forbidden to them by the Constitution. "Nevertheless, the
court held (196) that the act was constitutional because it was in
effect a national regulation of interstate commerce in liquors, and
because it imparted no power to the states not then possessed and
simply removed an impediment created by the absence of a specific
utterance on the part of Congress.(197) It has since been held that
under this act a state cannot establish a system discriminating
"between interstate and domestic commerce in commodities whose
manufacture and use are not prohibited by its laws."(198) It has
also been held that a state may prohibit the sale of oleo margarine
in imitation of butter, and that the act of Congress (199) defining
butter and imposing a tax upon oleo margarine does not authorize
transportation and sale in violation of such a statute,(100) the
ground of decision being that the doctrine of Loisy v. Hardin does
not justify the broad contention that the states are powerless to
prevent the sale of subjects of commerce, if their sale may cheat
the people into purchasing something which is wholly different from
that which its condition and appearance import. On the other hand,
it has been held (201) that oleo margarine, being an article of food
and commerce, a state statute cannot prohibit its transportation
from another state and its sale in an original tenpound package. It
has also been held(202) that a state may prohibit the sale of
cigarettes brought in from another state, when the size of the
original package is such as to indicate an intention to sell at
retail that which the state in its exercise of the police power has
forbidden to be sold, Brown, J., saying,(203) "The whole theory of
the exemption of the original package from the operation of state
laws is based upon the idea that the property is imported in the
ordinary form in which from time to time immemorial foreign goods
have been brought into the country."

Transportation(a) State regulation in the exercise of the police
power. 52. The construction of railways and the consequent
development of systems of through transportation have required the
court to consider in many cases the respective powers of the United
States and of the states in regard to transportation. Before
railways came into use the then ordinary appliances of internal
transportation, canals and turnpike roads, were regarded as
"component parts" of "that immense mass of legislation which
embraces everything within the territory of a state not surrendered
to the general government."(204) It was subsequently held that a
state through which the Cumberland road passed could not tax coaches
carrying the mail or persons traveling on the coach in the service
of the United States, but the exemption from taxation was, in the
several judgments of the court, based exclusively upon the terms of
the contracts between the United States and the several states
through which that road ran, as made by the statutes of those states
authorizing the construction of the road.(205) Under the later cases
a state may, in the exercise of its police power, regulate
transportation so far as may be necessary for the protection,
safety, and comfort of its citizens, but it may not by such
regulations unnecessarily impede or obstruct interstate
transportation. A state could, before the passage of the Interstate
Commerce Act, require under a penalty all railroads to fix and post
their rates of fare and freight and not to charge in excess
therefor. (206) A state may regulate the charges of a private
warehouse for the storage of grain, although that grain be stored in
the course of interstate transportation.(207) A state may fix and
enforce maximum rates of fare and freight for intrastate
transportation on all railways within the state, even though the
people in other states may be indirectly affected thereby.(208) A
state may forbid discrimination in transportation within its
territory, and constitute a commission to revise railway tariffs and
to enforce the statute, for it is not to be assumed that the
commission will interfere with interstate transportation.(209) A
state may forbid railways to employ in a position requiring the use,
or discrimination of the form or colour, of signals "any person not
having received from a state board a certificate of freedom from
colour blindness."(210) A state may require railways to provide
separate accommodations for white and coloured persons traveling
between points within the state.(211) A state may prohibit the
running of freight trains on Sunday on any railway in the state
(212) A state may require railways to place guard posts in the
prolongation of the line of bridge trusses so that in case of
derailment the posts, and not the bridge trusses, shall receive the
blow of the derailed locomotive or car,(213) and a state may
prohibit the heating of passenger cars, other than dining cars, "by
any stove or furnace kept inside the car or suspended
therefrom."(214) A state may require all regular passenger trains
running wholly within the state to stop at all county seats long
enough to take on and discharge passengers.(215) A state may forbid
a common carrier of passengers to limit its liability by
contract.(216) A state may forbid a common carrier to limit its
liability save by an agreement in writing signed by the owner of the
goods, for such a requirement is the establishment of a rule of
evidence, and not a regulation of contracts as to interstate
transportation.(217) A state may require all railways within the
state to stop certain of their trains running each way daily, at
stations in towns containing a specified number of inhabitants and
to stop for a time sufficient to receive and let off
passengers.(218) A state may require railways receiving freight for
transportation to a point on a connecting line to be liable for
damages caused on the connecting line, for the railway may lawfully
limit its contract of transportation to its own line.(219) A state
may authorize a municipality to prohibit by ordinance the running of
any trains within its limits at a speed greater than that fixed in
the ordinance.(220) A state may require intersecting railways to
provide facilities for transferring cars used in the regular
business of their respective lines.(221) A state may provide that
all railways doing business within the state shall be liable in
damages to their employees for any negligence of the railway's
servants.(222) A state may require railways to construct and
maintain cattle guards and fences under a penalty of double
damages.(223) A state may authorize the recovery from railways of
double damages for cattle killed or injured at a point where the
railway might, but did not, fence.(224) A state may authorize its
railroad commission to require a railway to erect and maintain
stations at designated villages.(225) A state may prohibit or
restrain the sale of wines or liquors imported from foreign
countries or brought within its territory from another state, though
introduced in an original package or otherwise, or manufactured in
the state.(226) A state may prohibit the sale of an adulterated
food product, even though it is brought from a foreign country.(227)
A state may so regulate the operation of drawbridges over navigable
waters that the traffic on the water and the traffic on the land
shall be so conducted as to interfere as little as possible with
each other.(228) A state may grant and control the exercise of ferry
licenses.(229) A state may establish port regulations for its
harbours.(230) A state may authorize a municipality to forbid the
use of steam power by railways within the municipal limits(231) on
the other hand, a state, by its police regulations, could not,
before the passage of the Interstate Commerce Act, enforce with
respect ito interstate transportation, a prohibition of a charge of
the same, or a greater, toll for a shorter than for a longer
distance in the same direction.(232) After the passage of the
Interstate Commerce Act such a regulation was a fortiori beyond the
power of the state.(233) A state may not require all trains carrying
interstate passengers to stop at a station where other adequate
accommodations were furnished by the railway, especially where the
stoppage of through trains at that station requires them to run over
a branch line taking them several miles out of their direct
course.(234) A state may not require a railway to stop at all county
seats, a sufficient time to take on or let off passengers, such
express trains as are run only for the transportation through the
state of passengers between two points in other states, especially
when by other trains adequate accommodations are provided for all
local and through transportation to and from each county seat.(235)
A state may not require, under a penalty, a report to the state
authorities of the name and occupation of every passenger.(236) A
state cannot forbid a common carrier to bring into the state
intoxicating liquors.(237) A state may not regulate rates of
transportation over a line connecting two points within the state
but passing in part through another state.(238)

While a state has, unless restrained by contract, or unless it
thereby regulates foreign or interstate commerce, the power to fix
by legislation transportation charges within its jurisdiction, and
while the presumption is always in favour of the validity of a
governmental regulation under legislative authority,(238a) it
nevertheless cannot require a railway to carry without reward, nor
can it so fix charges as to take private property without just
compensation, nor without due process of law.(238b) A state cannot
under pretence of regulating rates require railways to carry
specified classes of people at rates lower than those fixed by law
for all classes.(238c) As the power of fixing rates is
administrative, it must be exercised by the legislature (238d) and
not by the courts (238e) but it is within the judicial power, and it
is the judicial duty, to restrain that which in the form of
regulation operates to deny to the owners of property invested in
the conduct of transportation the equal protection of the
laws.(238f) The courts must, therefore, when a proper case is
presented, determine whether transportation charges as fixed by
legislative regulation are, or are not, so unreasonably low as to
deprive the carrier of his property without just compensation. Yet a
railway may not fix its rates solely with a view to its own interest
and ignoring the rights of the public, nor may it fix its rates upon
any basis other than that of the fair value of the property used and
the fair value of the services rendered, or, in other words, a fair
return upon the capital invested.(238g) In this connection Harlan,
J., said:(238h) The basis of all calculations as to the
reasonableness of the rates to be charged by a corporation
maintaining a highway under legislative sanction must be the fair
value of the property being used by it for the convenience of the
public. And in order to ascertain that value, the original cost of
construction, the amount expended in permanent improvements, the
amount and market value of its bonds and stock, the present as
compared with the original cost of construction, the probable
earning capacity of the property under particular rates prescribed
by statute, and the sums required to meet operating expenses, are
all matters for consideration and are to be given such weight as may
be just and right in each case. We do not say that there may not be
other matters to be regarded in estimating the value of the
property. What the company is entitled to ask is a fair return upon
the value of that which it employ's for the public convenience. On
the other hand, what the public is entitled to demand is that no
more be exacted from it for the use of the public highway than the
services rendered by it are reasonably worth."(238i)

        Much misapprehension with regard to the proper limits of the
exercise of governmental power over the railways has resulted from
reasoning by analogy, for the logical value of that method of
reasoning is dependent upon an exact similarity in all points
between the subjects of comparison. It is a truism that railways are
public highways, and yet it is clear that they are not highways in
the sense that navigable rivers and roads, whether common or
improved, are highways. Railways differ from those other ways in
three important respects, which deprive the analogy of much of its
value. In the first place, the railways have in the United States
been constructed, in almost every instance, not by public officers
expending the public funds, but by private persons under corporate
organizations expending private funds realized from the sale of
corporate bonds or shares, the investors taking all the risks, and
relying upon the financial results of operation under the corporate
franchises for income and reimbursement of outlay. In the second
place, the railway is not only an artificial highway, but also it
can only be used as a highway in connection with artificial means
of transportation which the railway must itself supply and operate.
The earlier railways in England and in this country were chartered
upon the theory that the company would provide the road and the
customers find their several modes of transportation, but it was
soon discovered that the magnitude, complexity, and dangers of the
business were too great to admit of its conduct in that manner. In
the third place, every railway is a common carrier, and, as such is
bound to carry at reasonable rates and without unjust discrimination
all freight and all passengers that may be offered to the extent of
its facilities.

        All freight is not of equal bulk or value, nor is it
necessarily received, carried, or delivered in precisely the same
manner. It may be received and delivered at the station and loaded
and unloaded by the railway employees; it may be received and
delivered at the railway sidings, but loaded and unloaded by the
consignor or consignee; it may be received from and delivered to
sidings on private premises, and loaded or unloaded there by the
consignor or consignee; or it may be received in one of these ways
and delivered in another. So also the stipulated speed of
transportation may vary. A railway also has to deal both with retail
and wholesale customers, that is, with those who at their option
make occasional use of its transportation facilities, and with
others who make a prearranged regular and constant use of these
facilities.

        It is to the interest of both the public and the railways
that rates should be sufficiently large to yield an adequate return
for the capital invested, to maintain the plant in a condition of
efficiency, and to permit the railway to avail itself of such
improvements as may be, from time to time, made in machinery and
appliances. The railway plant includes not merely the roadbed and
main tracks, but also the terminal facilities, the way stations, the
sidings necessary therefor, the rolling stock, a skilled labour
upon which devolves the maintenance and operation of the road. The
traffic must be steady in order that there may be no loss from
unused machinery and unemployed labour. Return freight must be
provided in order to avoid as far as possible the transportation of
empty cars. The cost of moving freight varies upon different lines
and upon different parts of the same line, in accordance with the
grades, the more or less expensive character of the tunnels,
bridges, viaducts, and other engineering appliances that have been
provided to overcome natural obstacles, and the cost to the railway
of its machinery, fuel, and labour. The railway manager has,
therefore, in fixing a rate to determine the cost of moving a given
quantity of freight of the particular kind over the designated
distance in the desired manner, and to that end he must consider
several elements, to each of which due weight must be given: first,
the extent to which the company's way or terminal facilities and
labour will be used in handling the motivepower and rolling stock,
and the possibility of obtaining a full return freight; third, the
length of the haul and the favourable or unfavourable character of
the grades; fourth the degree of expedition required, and the
consequent accommoclation to, or disturbance of, the general traffic
arrangements of the road; fifth, the constant, or fluctuating,
character of the demands of the particular freight upon the road's
facilities; and, sixth, the relative bulk and value of the freight
and the degree of the carrier's responsibility for its safe
transportation. Railways have not been chartered, nor has capital
been invested in their construction, upon the theory that they are
to do business for less than cost and a reasonable profit upon the
investment. The railway manager musts therefore, in order that
dividends maybe earned, and, after determining the cost of moving
and handling the particular freight, such a sum for profit as will,
in addition to the company's profits from other sources, furnish
an adequate return for the Capital invested. 

        When, therefore,government officers undertake to fix
transportation rates, it is only fair and just that they should take
into consideration the elements of the problem as it would present
itself to the mind of an experienced and intelligent railway
manager. And when the courts are called upon to determine the
validity of governmental regulations as to rates they may properly
give weight to the same considerations.

Transportation(b) Regulation by taxation.
The United States may, in the exercise of the power to regulate
commerce, impose a duty payable by shipping companies in respect of
passengers, not citizens of the United States, coming from a foreign
port into a port of the United States,(239) and such a duty, being
an incident of the regulation of commerce and not a tax, is not
subject to the constitution requirement of uniformity, and "it
operates, with the same force and effect in every place where the
subject of it is found."(240) A state may require a railway,
incorporated by it to construct a line between a point in the state
and a point without the state, to transport passengers for a charge
not exceeding a fixed sum, and to pay to the state a percentage of
the whole amount which may be received for the transportation of
passengers; the court holding that the payment to the state is not a
tax upon interstate transportation but a charge for the use of
improved facilities of transportation whieh the state, by its agent,
the railway, has constructed and for whose use, it has a right to
charge.(241) A state may impose a tax upon the actual cash value of
every share of the capital stock of a railway incorporated by it
even though the railway does interstate business.(242) A state may
impose on every railway operating within the state a franchise tax,
to be determined in amount by multiplying the average gross receipts
per mile by the number of miles operated within the state, the
ground of decision being that the state which grants the franchise
may annex conditions to its exercise, and may measure the value of
the franchise by the gross receipts earned by operation under that
franchise.(243) A state may tax the tolls received by a railway
chartered by another state, but owning a line within the taxing
state, for the use of such line by another railway.(244) A state may
tax the capital stock, of a car company in the proportion that the
number of miles run by its cars within the state bears to the whole
number of miles run by its cars in that and ot her states.(245) A
state may require a company doing both a domestic and an interstate
business to take out a license.(246) A state may tax the capital
stock of a consolidated corporation chartered by it, and one of
whose constituent corporations is a foreign corporation.(247) A
state may tax transportation between two points within the state but
passing in part throagh another state, the tax being "determined in
respect of receipts for the proportion of transp ortation within the
state."(248) A state may impose a privilege tax on the business of a
railway company in transporting passengers in cabs to and from a
station within the state.(249) A state may impose a tax upon sales
at auction of goods which are the product of other states, and which
are sold in their original and unbroken packages, the tax having a
uniform application to sales at auction witliin a specified
territory, and not discriminating as against sales at auction of the
products of other states.(250) A state may tax coal consigned by a
resident of another state for sale and afloat in a port of the
taxing state in the vessel in which it had been transported.(251)
And a state may tax timber cut in its forests, though owned by a
resident of another state and deposited at a place from whence it is
to be shipped to another state.(252)


Transportation(c) The Interstate Commerce Act. 
        In the years preceding 1870, the people, recognizing the
fact that the development of the Middle and Western states required,
as speedily as possible, improved means of communication,
facilitatcd by legislation, and by prodigal grants of state and
county aid, the organization and construction of railway lines; but,
in the years following 1870, some of the railways having come to
regard themselves as mere corporations for private gain, and, as
such, entitled to conduct their business without regard to public
interest, popular feeling was excited, a reaction came, and some of
the states, and afterwards the United States, undertook by
legislation to correct the abuses, and enforce correct principles,
of railway administration. Hence the Interstate Commerce Act and its
amendments,(270) which apply to all interstate common carriers, by
railroad or partly by railroad and partly by water, "under a common
control, management, or arrangement for a continuous carriage;"
require all charges to be reasonable and just; forbid unjust and
unreasonable charges; prohibit the receipt from any person of "a
greater or less compensation for any service rendered ... than that
received from any other person for a like and contemporaneous
service in the transportation of a like kind of traffic under
substantially similar circumstance and conditions;" forbid undue or
unreasonable preferences or discriminations, either personal or
local; require reasonable, proper, and equal facilities for the
interchange of traffic with other lines, and forbid discrimination
in rates as between connecting lines; forbid the receipt of as
great, or "greater compensation in the aggregate . . . under
substantially similar eircumstances and conditions for a shorter
than for a longer distance over the same line in the same direction,
the shorter being included within the longer distance," provided,
however, that the commission may prescribe the extent to which a
designated carrier may be relieved from the operation of this
prohibition; forbid the pooling of freights, or division of
earnings, by competing lines; require publication of foreign and
interstate rates; forbid any advance in rates except after ten days'
public notice; permit reductions in rates after three days' public
notice; forbid all departures from the published rates; require
schedules of rates to be filed with the eommission; forbid
combinations to prevent continuous carriage; declare carriers to be
liable for noncompliance with the acts to any person injured thereby
in the full amount of damages, together with a reasonable counsel or
attorney's fee; authorize complaint to the commission, or action at
law in the federal courts by any person injured by a carrier's
noncompliance with the acts; provide that no person shall be excused
from attending and testifying or from producing books, etc., on the
ground that the testimony, or evidence, documentary or otherwise,
required of him may tend to criminate him, but that no person shall
be prosecuted, or subjected to any penalty or forfeiture, on account
of any transaction, concerning which he may testify, or produce
evidence, in any such proceeding; subject to punishment by fine the
corporation and all directors, officers, or employees violating the
act; create a commission of five members, holding office for a
limited term, not more than three of the members to be appointed
from the same political party; authorize the commission to inquire
into the management and operation of carriers, with power to require
the attendance and testimony of witnesses and the production of
papers, and to that end to invoke the aid of the courts of the
United States; vest jurisdiction in the commission to examine and to
take testimony upon complaint made by any person, natural or
corporate; authorize the commission to investigate of its own
motion; forbid the dismissal of a complaint " because of the absence
of direct damages to the complainant;" make the findings of the
commission prima facie evidence in all judicial proceedings; require
the commission, and authorize any party interested, in case of the
carrier's refusal or neglect to obey any lawful order of the
commission, to apply in a summary way by petition to the courts of
the United States for relief, and vest jurisdiction thereof in such
courts, and authorize the court to enter a decree and issue process
with right of appeal to the appropriate federal appellate tribunal;
authorize the commission to make rules; fix the principal office of
the commission in the city of Washington, but authorize it to hold
special sessions, and prosecute inquiries, in any part of the United
States; authorize the commission to require reports from carriers as
to share and debt capital, rates, administration, and accidents to
passengers or employees; require the commission to make annual
reports to the Secretary of the Interior for transmission to
Congress; and provide that carriers may carry free, or at reduced
rates, goods for the United States, and municipal governments, or
for charitable purposes, or for exhibition at fairs, etc., and may
issue mileage, excursion, or commutation passenger tickets, or give
reduced rates to ministers of religion, municipal governments for
the transportation of indigent persons, inmates of soldiers' and
sailors' homes, officers and employees of their own line, and may
exchange passes and tickets with other lines. Under the act and its
amendments, it has been decided that the Interstate Commeree
Commission is a body corporate, with power to sue, and to be sued,
in the federal courts.(271) It is not a court, because its members
do not hold their offices by the tenure of good behavior, and
because the duties imposed upon it are not judicial in their nature.
It is, however, a "subordinate administrative, or executive,
tribunal,"(272) and, as such, it cannot exercise the legislative
power of fixing rates in futuro;(273) nor can it indirectly fix
rates by determining what would be a reasonable rate, and then
obtaining from the courts an order restraining a carrier from making
in futuro a charge in excess of such rates.(274) In actions to
enforce the orders of the commission an appeal from a circuit court
now goes, not to the Supreme Court, but to the circuit court of
appeals.(275) The provision in section 12 of the act that the
commission may "invoke the aid of any court of the United States in
requiring the attendance and testimony of witnesses and the
production of books, etc., " is not open to constitutional objection
upon the theory that it imposes upon a judicial tribunal duties
which are not in their nature judicial.(276) The commission cannot
compel obedience to its orders by entering a judgment subjecting any
person to fine or imprisonment, for the power to impose such
penalties, in order to compel performances of a legal duty imposed
by the act, can only be exercised by a competent judicial
tribunal.(277) A witness in any inquiry by or on behalf of the
commission could not, before the passage of the Act of 11th
February, 1893,(278) be required to answer questions when he stated
that his answers might tend to criminate him;(279) but, as that act
provided that "no person shall be prosecuted or subjected to any
penalty or forfeiture for or on account of any
transaction....concerning which he may testify or produce
evidence....before said commission....in any such case or
proceeding" he can now be compelled to answer notwithstanding the
protection afforded by the V Amendment.(280) There is a continuous
carriage of goods within the meaning of the act when goods shipped
under a through bill of lading from a point in one state to a point
in another state are received in transit and carried exclusively
within a state by a carrier under a pro rata division of the rate,
and such intrastate carrier thereby subjects itself to the
jurisdiction of the commission so far as regards such
transportation.(281) The pro rata share of a through rate may,
without unlawful discrimination or undue preference, be less than a
local rate.(282) Party rate tickets, sold at reduced prices for
parties of ten or more in number, do not constitute undue, or
unreasonable, preferences in favour of the purchasers thereof, nor
unjust, or unreasonable, discriminations as against purchasers of
single tickets.(283) In the absence of a general regulation that
free cartage from a railway station to the premises of a consignee
shall be regarded as a part of a terminal service, railway
transportation must be held to end at the railway station, and the
furnishing of free cartage to consignees in one town, but not in
another town, does not constitute unjust local discrimination;(284)
but a rebate allowed to a consignee to compensate for the cost of
cartage from the railway station to his premises, when a similar
rebate is not allowed to another consignee in the same locality, is
an unjust personal discrimination.(285) That an unlawful
discriminating rate was allowed, or a rebate paid, in violation of
the act, does not prevent liability on the part of the carrier for
the freight received and covered by insurance in the custody of the
carrier's agents.(286) The act does not in terms authorize competing
carriers to enter into contracts to maintain even reasonable
rates.(287) The right of recovery given by the statute for an excess
of payment over a rate charged to another shipper under similar
conditions is in the nature of a penalty, and the plaintiff must
produce full proof thereof, and must show a pecuniary injury to
himself resulting from such discrimination.(288) Substantial
similarity, or dissimilarity, of circumstances and conditions is a
question of fact, to be proved by evidence and finding of the
commission thereon is only prima facie, and is subject to review by
the court.(289) Reduced through rates from a port of entry to a
point within the country on goods from abroad, which, except for
such reduced rate, would not have come through that port of entry,
do not constitute an unjust discrimination as against traffic
originating at that port of entry.(290) The commission may
administratively determine the circumstances and conditions
affecting competitive rates, considering to that end the legitimate
interests of the carrier as well as of the shippers, and the
legitimate interests of the locality to which the goods are to be
carried as well as of the locality from which the goods are
shipped.(291) A substantial competition, that is a competition
producing a substantial and real effect upon traffic and rate
making, is one of the circumstances constituting substantial
dissimilarity under the long and short haul clause in sections 3 and
4 of the act,(292) and which may justify a carrier in charging a
greater compensation for a shorter than for a longer haul.

        It was held, before the passage of the Interstate Commerce
Act, that a state could require under a penalty all railroads to fix
and post their rates of fare and freight and not to charge in excess
therefor,(293) but it was held also that a state could not by a
police regulation enforce, with respect to interstate
transportation, a prohibition of a charge of the same, or a greater,
toll for a shorter than for a longer distance in the same
direction,(294) and, after the passage of the interstate Commerce
Act, it was held that such a regulation was a fortiori beyond the
power of the state,(295) for Congress having enacted its long and
short haul clause, it was, of course, not lawful for a state to
legislate on the same subject. When a company owned by a railway
corporation buys coal at the mines under an arrangement alleged to
secure preferential rates for the vendors, the Interstate Commerce
Commission may, in a proper proceeding in the circuit court, compel
the testimony of witnesses and the production of contracts.(296)

        The cases in the Supreme Court and the reports of the
Interstate Commerce Commission show that the act of 1887 has invited
much costly and fruitless litigation. Nevertheless, the legislation
is of value in that it has strengthened the hands of those
broadminded railway managers who believe that the interests of their
shareholders are best served by fair dealing with customers and with
competitors.

The Antitrust law.
53. The so-called "trusts" are combinations of corporations and
properties made, in some cases, by the merger and consolidation of
existing associations, and, in other cases, by the organization of
corporations to aequire and hold the properties to be consolidated,
or the controlling interest in the shares of the corporations to be
combined.

        The "trusts" are a necessary result of the growth of the
country, and of the development of isolated and sparsely settled
states into a nation whose territory is covered by a network of
railways, whose trade is that of an empire and not that of a
village, and whose markets have ceased to be local and have become
worldwide. "Trusts" are formed to obtain capital by the sale of
bonds and shares, to save the waste of competition, to secure in
production, transportation, and distribution the maximum of
efficiency at the minimum of cost to expand trade by reducing the
price to the consumer, and by economical operation to increase the
net profit to the producer and the carrier.

It is not surprising that the capitalization of our railways, the
number of our industrial organizations, and the magnitude of their
operations should arouse the public interest, and should cause on
the part of unintelligent people more or less fear as to possible
consequences. Every great industrial development has excited such
fears; the steam engine, the railways, and all forms of labour
saving appliances, from the spinning jenny to the typesetting
machine, have seemed, in their turn, to threaten large additions to
the ranks of the unemployed, and heavy losses to different classes
of people; and yet in each case the result has been the opening of
new avenues to employment, and a substantial advance in
civilization.

So today, no one who is accurately informed as to present industrial
conditions can doubt that, because of American financial skill in
securing combination of resources and concert of action, and because
of increased railway efficiency, the products of industry have been
brought to a higher standard than ever before, the labour which
produces them is better paid, the market is wider and is better
supplied, and the consumer buys upon relatively more favourable
terms.

        In any legislative regulation of corporations, great or
small, by the United States, there are only four classes of people
to be considered. There are, first, the investors in the bonds and
shares issued by the corporations, that is, those who desire to
become partners therein, and to participate in their profits, and
who, theref ore, in so far as they may properly be regarded as
beneficiaries of legislation, can only be aided by the requirement
of publicity, that is, by compelling the corporation, under proper
penalties, to furnish such information as to its capital, earnings,
and disbursements as will enable intending purchasers and owners to
determine whether its financial condition be such as to render the
purchase or holding of its securities a prudent investment. But the
federal law can have nothing to do with the organization of
corporations for purposes not directly connected with the exercise
by the United States of some power of government, nor can the United
States constitutionally regulate the issue, sale, or transfer of
the bonds or shares of such corporations, or protect investments
therein. There are, secondly, the business rivals or competitors of
the trading "trusts." On their behalf complaint is made that those
"trusts," in order to destroy competition, discriminate in their
prices. But competition is industrial warfare. You cannot have a
real competition that does not compete to the limit. When
competition is actively conducted, the seller attains his ends, not
only by underselling in order to effect a particular sale, but also
by carrying his underselling to the extreme limit of driving his
competitors out of business and securing for himself complete
control of the market. This is done, as Lord Justice Bowen said,(297)
from "the instinct of self-advancement and self protection, which is
the very incentive of all trade.  .  To say that a man is to trade
freely, but that he is to stop short at any act which is designed to
attract business to his own shop, would be a strange and impossible
counsel of perfection," and to attempt to prohibit it "would
probably be as hopeless an endeavour as the experiment of King
Canute." Is it proposed that there shall be a general legislative
regulation of prices, and, if so, what would that amount to? There
are, thirdly, the consumers of the goods manufactured or sold by the
corporations. So far as they are concerned, it is clear that no act
of legislation can effectively prescribe the price at which the
products of the corporations are to be sold, for the simple reason
that market prices always have been, and always will be, regulated
by the operation of the law of supply and demand. Successful
commerce buys in the cheapest, and sells in the dearest, market. The
seller rightfully seeks the highest price that he can obtain; the
buyer, as rightfully, pays as little as he possibly can. There are,
fourthly, those who or whose goods are carried by common carriers,
and their rights have been adequately regulated and protected by the
law.

        Therefore, intelligent managers of a successful business do
not advance prices to the point at which destructive competition
will be invited. Prices of commodities are automatically regulated
by the law of supply and demand. When, by reason of an apparent
permanence of demand and a present inadequacy of the means of
supply, prices rise to a level that gives a reasonable assurance of
profit to producers, the surplus capital of the world can always be
relied upon to augment the means of supply. Attempts to regulate
trade by legislation are not of new invention. Whenever and wherever
there has been an absolute government there have always been
attempted restrictions upon trade. In medieval times it was the
theory and the practice that it was the "duty and the right of the
state to fix hours of labour, rates of wages, prices, times and
places of sale, and quantities to be sold."(298) The selfish
commercial policy of England, intelligently directed to the
restraint of colonial trade and manufacture, was the great cause
of the War of Independence. When the suceessful revolution had
substituted the sovereignty of the people for the supremacy of the
Crown, there was naturally a jealousy of governmental power and a
determination to guard individual liberty against oppression. The
framers of the Constitution of the United States, therefore, founded
the government, not only upon the supremacy of the government in the
exercise of the powers granted to it, but also and equally upon the
independence of the states and the freedom of the citizen. They
foresaw the evil effects of an unrestrained exercise of the popular
will. They endeavoured to establish and make perpetual the reign of
law. They crystallized into the Constitution the great principles of
free government, and they made it impossible to hastily change that
organic law. They declared in express terms the supremacy of the
Constitution and the laws made in pursuance thereof; and they
created a Supreme Court whose judgments should give effect to that
declaration. They united the states into a nation, with full powers
of government, and they reserved to the individual citizen as much
freedom as is consistent with the enforcement of law and the
maintenance of order. Under the Constitution, there is no warrant
for paternalism in congressional legislation.

        It is to the states, and not to the United States, that we
ought to look for the legislative and administrative regulation of
the industrial organizations of the present and the future. The
power of the state is ample. A state may create corporations, with
or without conditions, and it may authorize a corporation to do any
business which an individual may lawfully do. A state may forbid a
foreign corporation to do business within its territory; it may
permit that business on conditions; and it may, without reason,
revoke a permission theretofore granted. It may, therefore, enforce
with regard to foreign corporations all, and more than all, the
restrictions which it enforces with regard to corporations of its
own creation. On the other hand, the United States, save as the
domestic government of the District of Columbia and the territories,
cannot even grant a charter of incorporation, except as a means
incidental to the exercise by the United States of a power of
government, and it can control the operations of a corporation
chartered by a state only under the power of regulating foreign and
interstate commerce. It does not avail to say that the legislation
of a state can have no extraterritorial force, and that in order to
have a rule of uniform application throughout the country there must
be congressional legislation, for the conclusive reply is that every
state, under the Constitution, is entitled as of right to determine
for itself by what agencies and under what conditions commodities
shall be manufactured or sold within its territory, subject only to
the paramount right of the United States to levy duties and taxes,
and to regulate commercial intercourse. As Fuller, C. J., forcibly
said in his dissenting judgment in the Lottery Case,(299) "The scope
of the commerce clause of the Constitution cannot be enlarged
because of present views of public interest."

        In the past the country has had to overcome, under
conditions of inadequate transportation facilities, the
disintegrating tendencies of the expansion of territory and the
growth of population, but as the results of the triumph of the
nation in the suppression of the Rebellion, and the development of
means of transportation and communication, our perils are now those
of governmental consolidation and not those of dissolution. Any
legislation which conflicts with the American doctrine that all men
are equal before the law, and that equality of rights implies
equality of obligations, and that subjects rights of property and
freedom of contract to administrative control is dangerous in a
republic governed by universal suffrage. The leaders of public
opinion will do well to remember that, as Mr. Lecky has said, it is
an inexorable condition that all "legislation which seriously
diminishes profits, increases risks or even unduly multiplies
humiliating restrictions, will drive capital away and ultimately
contract the field of employment."(300)

        The first of the congressional antitrust acts (301) was
drawn by Senator Hoar,(302) and was passed because of some
unintelligent clamour as to "the grave evil of the accumulation in
this country of vast fortunes in single hands, or of vast properties
in the hands of great corporations," an alleged evil with which the
United States cannot, under the Constitution, possibly concern
itself.

        The Act of 1890 is entitled "An Act to Protect Trade and
Commerce against Unlawful Restraints and Monopolies;" declares
illegal "every contract, combination in the form of trust, or
otherwise, or conspiracy in restraint of trade or commerce among the
several states, or territories, or with foreign nations;" and every
monopoly, or attempt to monopolize any art of such trade or
commeree; subjects to forfeiture, seizure, and condemnation "any
property owned under any contract, or by any combination, on,
pursuant to any conspiracy," as aforesaid; imposes penalties upon
persons disobeying the act; vests jurisdiction in the courts of the
United States; gives a right of action for injury to business or
property by reason of anything declared unlawful by the act, with
threefold damages, costs of suit, and attorney's fee; and requires
the several district attorneys, under the direction of the attorney
general, to institute proceedings in equity to prevent and restrain
such violations.

        The Act of 11th February, 1903,(303) provides that in suits
brought by the United States under the act precedence shall be
given, on the filing of a certificate by the attorney general, and
the cause be heard before not less than three judges of the circuit,
and that an appeal from the final decree of the circuit court shall
be only to the Supreme Court and must be taken within sixty days.
The Act of 14th February, 1903 (304) Creates the Bureau of
Corporations in the Department of Commerce and Labor, provides for
the appointment of a commissioner thereof, a deputy commissioner,
and clerks; authorizes the commissioner to make "under the direction
and control of the Secretary of Commerce and Labor, diligent
investigation into the organization, conduct, and management of the
business of any corporation, joint stock company, or corporate
combination engaged in the commerce among the several states and
with foreign nations,excepting common carriers subject to" the
Interstate Commerce Act, and, "to gather such information and data
as will enable the President of the United States to make
recommendations to Congress for legislation for the regulation of
such commerce, and to report such data to the President from time
to time as he shall require; and the information so obtained, or as
much thereof as the President shall direct, shall be made public."
The act also confers upon the commissioner respect to the parties
subject thereto all the powers conferred on the Interstate Commerce
Commission; and makes it "the province and duty" of the bureau "to
gather, compile, publish, and supply useful information concerning
corporations doing business within the limits of the United States,
as shall engage in interstate commerce, or in commerce between the
United States and any foreign country, including corporations
engaged in insurance, and to attend to such other duties as may be
hereafter provided by law."

        The Act of 25th February, 1903,(305) appropriates the sum of
$500,000 to be expended under the direction of the attorney general
"in the employment of special counsel and agents of the Department
of Justice to conduct proceedings, suits, and prosecutions" under
the antitrust acts. The Act of 3d March, 1903,(306) provides for the
appointment of an assistant to the attorney general, an assistant
attorney general, and two confidential clerks to "perform such
duties. as may be required of them by the attorney general." The
first of the statutes only has been judicially construed.

        Of course, in every case in which the statute has been
enforced, it has necessarily been held to be constitutional as a
regulation of commerce, and not to be open to objection on the
ground of interference with the freedom of contract.(307) ln N. S.
Co. v. U.S.(308) the question of constitutionality was fully and
ably argued, and it was held that the statute, when construed to
forbid a combination to organize a corporation to hold the shares of
competing railways, is not open to objection as an infringement upon
the reserved powers of the states, but, in his dissenting judgment
in that case, White, J.,(309) argued with great force, that commerce
as defined in Gibbons v. Ogden, is commercial intercourse, and is
regulated by prescribing rules for carrying on such intcrcouse, and
that the ownership or transfer of shares in a corporation created by
a state cannot be said to be in any sense commercial iutercourse,
and the prescribing of rules governing the ownership of such shares
cannot fall within the power to prescribe rules for regulating
commercial intercourse.  White, J., also argued that the power to
regulate commerce includes the power to regulate the
instrumentalities of commerce, and that means the regulation, not of
their acquisition and ownership, but of their employment and
operation, and that because the ownership of property, if acquired,
may possibly be so used as to burden commerce, it does not follow
that to acquire and own is to burden.

        Each of the cases also required of the court a construction
of the statute, and a determination whether or not the facts in each
case brought it within the statute. The general principles which
can be deduced from the cases are these:

1. The word "unlawful" in the title of the statute has reference
only to those contracts which the statute makes unlawful, and does
not operate to qualify the expression of the legislative will in the
body of the statute that "every" contract in restraint of foreign
and interstate trade shall be unlawful,(310) but, in the more recent
judgments of the court, the force of those words has been materially
qualified by the determination that exclusive licenses to
manufacture and sell under patents for inventions are not within the
statute, and by Mr. Justice Peckham's admissions in the judgments of
the court in U. S. v. T.M.F.A.,(311) in U.S. v. J.T.A.,(312) and in
Hopkins v. U.S.(313) that neither a contract of partnership, nor the
withdrawal of a competitor from business, nor the appointment by
competitors of a joint selling agent, nor the purchase of an
additional plant, nor "the formation of a corporation for business
or manufacturing purposes," nor an agreement collateral to a
contract of sale, and requiring the competitor to abstain from again
entering into the business within a designated territory and during
a specified time, are within the prohibition of the statute. These
conceded exceptions from the prohibitions of a statute, which
expresses no exceptions, would seem to destroy the inclusive force
claimed for the words "every and "otherwise."

2. The term "contracts in restraint of trade," as used in the
statute, includes, without regard to their reasonableness or
unreasonableness, all kinds of those contracts which in fact
restrain, or may restrain, trade." (314) In so deciding, the court
did not follow the modern and well considered judgments in the state
courts and in the courts of England. The doctrine of contracts in
restraint of trade is not of recent discovery. Holmes, J.,(315)
points out that contracts in restraint of trade, as defined by the
common law, are contracts with a stranger to the contractor's
business, and which wholly or partially restrain the freedom of the
contractor in carrying on that business; and that combinations or
conspiracies in restraint of trade, as defined by the common law,
are arrangements to keep strangers to the agreement out of the
business, and which tend to monopolize some portion of the trade of
the country. Such contracts were originally held void at common law,
because of the injury to the public, by its deprivation of the
results of the restricted individual's industry, and because of the
injury to the individual by his deprivation of the opportunity to
labour for himself and for those who might be dependent upon him.
Under the conditions of trade in the time of the Year Books any
restraint of trade was an unlawful restraint, but under modern
conditions the test of invalidity is the unreasonableness of the
restraint, for, as Mr. Justice Peckham said when he sat in the Court
of Appeals of New York,(316) "An agreement would not," necessarily,
"be in restraint of trade, although its direct effect might be to
restrain to some extent the trade which had been done." The
overwhelming current of authority supports this view. Brewer, J., in
his concurring judgment in N. S. Co. v. U. S.(317) holds that while
the court had rightly decided the prior cases under the statute,
because the contracts in all those cases were, in his opinion, in
unreasonable restraint of trade, yet, nevertheless, the statute was
not intended, and should not be construed, to prohibit contracts in
partial or reasonable restraint of trade.

3. If it were not for the judgment in N. S. Co. v. U.S.(318) it
might be regarded as authoritatively determined, that "there must be
some direct and immediate effect upon interstate commerce in order
to come within the act." (319) Upon that principle all the cases,
other than that of N. S. Co. v. U. S., can be reconciled.

4. A direct,(320) or indirect,(321) restraint of railway competition
in interstate commerce is within the statute, which, although a
general statute, repeals pro tanto by implication the Interstate
Commerce Acts,(322) which forbid unjust and unreasonable charges by
railway carriers, which require public notice of increases or
reductions in rates, which forbid secret or preferential rates and
which, therefore, prohibit effective railway competition.(323)

5. A state cannot, in respect of its ownership of public lands and
its maintenance of public institutions, and the possibilities of
depreciation in the value of such lands, and of increase in the cost
of maintaining such institutions, by reason of the possibility of a
diminution of competition between railways, sue in a federal court
under the statute to enjoin the organization of a corporation to
hold the majorities of the shares of such railways, for the
possibility of such damage to the state is too remote and indirect
and is not the direct actual injury contemplated by the
statute.(324)

6. A combination illegally formed in violation of the statute is not
precluded from recovering the purchase price of goods sold by it,
nor can its vendee set off the threefold damages under the statute,
for the liability therefor is only enforcible by a direct
action.(325) Nevertheless, anyone sued upon a contract may set up as
a defence that that contract is a violation of the statute, and, if
found to be so, that fact will constitute a good defense to the
action.(326) Logically, a combination of labour is as clearly
subject to the statute as a combination of capital.(327) The labour
unions reasonably restrain trade, when they combine to sell a
certain minimum of labour for not less than a certain price, but
they unreasonably restrain trade when, in order to effect their
purpose, they use threats and force to prevent employers from
securing labour not provided by members of the union. In the absence
of an express and unfulfilled contract of service, it is the legal
right of every man to refuse to work, but it is neither the legal
nor the moral right of any man to hinder other men from working.

        In each case decided under the statute the judgment of the
court was based upon a construction of the agreement of combination,
and upon a consideration of the possibilities of action thereunder,
without any reference to that which the two parties had done, or
probably would do, there under.

The statute has been construed to forbid:
1. An agreement by several corporations organized under the laws of
different states and engaged in the manufacture, interstate
transportation, and sale of a commodity, to abstain from competition
as between themselves within a designated territory, including more
than one state.(328)

2. An agreement by members of an unincorporated association of
manufacturers of, and dealers in, a commodity, doing business in
several states not to sell to non-members save at a price in excess
of that at which the members sell to each other.(329)

3. Agreements by competing railway corporations for the maintenance
of uniform rates upon interstate traffic.(330) A combination by
several persons whereby a holding corporation is organized under the
laws of a state to acquire and hold the majorities of the shares of
two railways organized under the laws of other states and
theretofore competing in interstate traffic,(331) the ground of
decision being that the common corporate ownership of the shares
will prevent competition between those railways, and that the
statute forbids the formation and operation by whatever means of a
combination which possibly may prevent such competition.

On the other hand the statute has been construed not to forbid:

1. Exclusive licenses to manufacture and sell under patents for
inventions, for a patent is necessarily a monopoly, and a patentee's
protection is valueless if he cannot fix prices and restrain
Competition.(332)

2. The organization of a corporation for the purchase, manufacture,
and sale of a commodity throughout the United States and the
acquisition and ownership by that corporation of all, save one, of
the manufactories of that commodity in the United States,(333) the
ground of decision being, not that the case as presented was simply
that of a combination of factories, but that the case was that of
the vesting in one agency the ownership of, and the control over,
theretofore separated instrumentalities of interstate commerce;
that the possible abstention of those instrumentalities from
competition could only be regarded as incidental to the exercise of
lawful rights of purchase, sale, and ownership; and that the
combination, therefore, lacked that direct and immediate effect upon
interstate commerce which there should be in order to bring it
within the statute.

3. An agreement by local sellers upon commission fixing their rates
of commission, regulating competition as between themselves,
forbidding purchases from non-members, and forbidding the
transaction of any business with suspended members.(334)

        In deciding upon the possible effect of the agreements and
acts of combination in the three railway cases(335) and in holding
that they restrained trade because they checked competition, the
court made the mistake of not properly appreciating the essential
differences which distinguish competition between common carriers
from competition between sellers of goods. A railway company, like
all other common carriers, is bound to carry all freight that may be
offered, to the extent of its facilities, at able rates, and without
unjust discrimination, either personal or local, and it is legally
compellable to refund any over charge in excess of that which shall
be adjudged to be reasonable; and the Interstate Commerce Act, (336)
has made the rule of the common law obligatory upon all carriers
engaged in interstate commerce. On the other hand, buyers of goods
may lawfully buy at the lowest price and sellers of goods may
lawfully sell at the highest price. In railway rates it is to the
interest of the public that there should be uniformity, in order
that all shippers may have equal advantages; stability, in order
that all buyers and sellers may correctly estimate the cost of
transportation as affecting market prices; and adequacy of
compensation to the carrier, in order that the carrier may receive
that which, in the words of the court,(337) "the services rendered
are reasonably worth."

        Before the enactment of the statute of 1890 the Interstate
Commerce Act, as amended by the Act of 2d March, 1889, (338) had
forbidden an advance of railway rates, "except after ten days'
public notice," and had permitted reductions in rates only "after
three days' public notice." The Act of 19th February, 1903,(339)
passed after the enactment of the statute of 1890, declared it to be
a misdemeanor for any carrier subject to the Interstate Commerce
acts to fail to obey those acts. Therefore, as well as before the
enactment of the Antitrust statute, any real competition between
railways was forbidden by legislation, for as a carrier can take no
business away from a competitor by a reduction in an open rate, of
which three days public notice must be given, the only way to get
business by reducing the rates is to give that reduction secretly to
the customer whose traffic is to be secured. The Antitrust statute,
as construed by the court, says that railway competition must be
unrestrained. The Interstate Commerce acts say that railways must
not do those acts which are essential to any effective competition.

        Uncontrolled competition in transportation inevitably
produces evils which the country has often experienced. A war of
railway rates necessarily forces a diminution of that liberality of
railway expenditure which benefits the manufacturer, the dealer, and
the labouring man. Such a war may result also in the bankruptcy of
weaker companies, in costly receiverships, and reorganizations, and
in absorption by stronger rivals. When competition is unrestrained
the power of fixing rates is necessarily vested in one company which
receives the goods from the shipper, and that power is inevitably
delegated to irresponsible subordinates, to whom their road's need
of business is all important. From this it follows, that not only do
the carriers fail to receive under such conditions the advantages of
adequate compensation, but also the shippers and the public lose the
benefits of uniformity and stability of rates. Uncontrolled
competition, therefore, injures, instead of benefits, the public
interest. While some judges have been captivated by the supposed
advantages of unrestricted competition among carriers, other and
equally eminent judges, and as competent observers, have detected
the fallacy in the reasoning, and have pointed out the danger.(340)
There are limits to legislation. Acts of Congress cannot control
either the laws of nature or the laws of trade. As the statute,
judicially construed, forbids treaties of peace between warring
lines and consolidations of conflictin railway interests, some other
way will be found, in the interest of the public, to accomplish the
desired result.

        It is difficult to reconcile the case of N. S. Co v. U.
S.(341) with the case of U. S. v. E. C. Knight Co.(342) Obviously a
statutory prohibition of "every" restraint of trade cannot be so
construed as to permit mercantile, and forbid transportation,
restraints of trade. In each of those cases the controlling fact is
that there is vested in one agency the ownership of, and control
over, instrumentalities of interstate commerce, if there be a
resultant restraint of trade, that result follows, not because of
any agreement to abstain from competition, but only because such
abstention may possibly follow the exercise of legal rights of
purchase, sale and cwnership.(343)

        The result in N.S. Co. v. U. S.(344) seems to be open to two
further objections, which do not appear to be met by anything in the
judgment of the court, as read by Harlan, J., or in the concurring
judgment of Brewer, J.

1. The act, as construed in the T. M. F. A. and J. T. A. cases,
forbids railways to agree not to compete, but it does not forbid
noncompetition in the absence of agreement. As well after as before
the act, railways were, and are, bound in law to carry all
passengers and freight that may be offered, to the extent of their
facilities, at reasonable rates, and without unjust discrimination,
either personal or local; and if the managers of any railway, while
observing those requirements, charge the same rates as are charged
by other railways under like conditions, but without entering into
any agreement to that effect, they violate no law. If it be not
unlawful for two railway companies owned by different shareholders
to abstain from competition, it cannot be unlawful for two railway
companies owned by one body of shareholders to similarly abstain.
The fact of common ownership, therefore, is not in itself a
restraint of trade, nor does it give rise to a presumption that any
restraint of trade will be committed. How can it then be unlawful
to organize a holding company to acquire the shares of two operating
companies?

        If it be said that the organization of the holding
corporation is only a means to the end of so unifying the management
of the operating companies as to prevent any possibility of
competition as between those companies and that the organization is
therefore a fraud upon the statute, the answer is that which the
court, speaking by Mr. Justice Hunt, gave(345) in a case where the
question was as to the validity of that which was alleged to be a
device to avoid the payment of a stamp duty; for in that case the
court said "if the device is carried out by the means of legal
forms, it is subject to no legal censure."

2. In the case, there is neither contract, combination, nor
conspiracy between the operating companies, but there is an
organization of a holding company by shareholders of the operating
companies, and, by force of that organization, the holding company
becomes the majority shareholder of both operating companies. While
the rights of the shareholder of both operating companies entitle
them to elect its directors, and to participate in net profits, when
declared, and, upon dissolution, in net assets, those rights,
nevertheless, do not give any power of direct corporate management.
A corporatism is a legal entity distinguishable from the body of its
shareholders. It can act only by its officers and agents, and its
shareholders are neither its officers nor agents. An agreement
signed by every shareholder will not bind the corporation. If an
express agreement of shareholders of the operating companies be not
effective, how can effect be given to a sale and transfer of shares
as legal evidence of presumptive corporate action?

Telegraphs.
54. Congress has authorized(346) any telegraph company organized
under the laws of any state "to construct, maintain, and operate
lines of telegraph through and over any portion of the public domain
of the United States, over and along any of the military or post
roads(347) of the United States which have been or may hereafter be
declared such by act of Congress, and over, under, or across, the
navigable streams or waters of the United States" upon certain
conditions, including priority to government messages, a
reservation of the privilege of purchase by the government, and the
written acceptance by the company of the restrictions and obligation
of the act.(348) Under this legislation it has been decided that a
state may require telegraph companies to receive on payment of their
charges messages to be transmitted to points in other states, and to
deliver messages with due diligence.(349) A state may require a
telegraph company doing interstate business to pay to the
municipality a rental for the use of public highways by its
poles.(350) A state may tax the property owned by a telegraph
company within the state.(351) A state may require from a telegraph
company, payment of a license tax on business done within the state
by the company, though it also carries on an interstate
business.(352)

        A state may not, as against the privileges conferred by the
United States,(353) vest an exclusive monopoly in one telegraph
company.(354) A state may not tax messages sent to points without
the state, nor messages sent by officers of the United States on
public business.(355) A state may not, as affecting delivery in
other states of messages from points within the state, require
delivery by special messengers.(356) A state may not require a
license for the privilege of doing interstate business.(357) A state
may not prohibit, until all state taxes have been paid by it, the
doing of business by a corporation which has accepted the privileges
granted by the act of Congress.(358)

Commerce with the Indian tribes.
55. The Indian tribes are not foreign but domestic and dependent
nations; their relation to the United States resembles that of a
ward to his guardian; and they are completely under the sovereignty
and dominion of the United States. They, therefore, cannot sue in
the courts of the United States as foreign states.(359) The
regulation of the relation between the several states and the Indian
tribes is exclusively vested in the United States, and state laws
cannot operate within an Indian reservation.(360) Congress, under
the power to regulate commerce with the Indian tribes, may grant to
a railroad corporation a right of way through their lands.(361) It
may also forbid the sale of spirituous liquors to all persons
belonging to Indian tribes within the territorial limits of a state,
even outside the bounds of an Indian reservation(362) and it is
competent for the United States, in the exercise of the treatymaking
power, to stipulate in a treaty with an Indian tribe, that the
introduction and sale of spirituous liquors shall be prohibited
within certain territories ceded by the tribe to the United States,
and such stipulation operates proprio vigore, and is binding though
the ceded territory be within the limits of an organized county of
one of the United States.(363)

				 FOOTNOTES
(1) Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 445;
Cook v. Pennsylvania, 97 U. S. 566 ; County of Mobile v. Kimball,
102 id. 691. 

(2) Gibbons v. Ogden, 9 Wheat. 1.

(3) P. T. Co. v. W. U. T. Co., 96 U. S. 1.

(4) Bank of Augusta v. Earle, 13 Pet. 519, 531; Starges v.
Crowninshield, 4 Wheat. 147; Nathan v. Louisiana, 8 How. 73.

(5) People v. Comissioners, 104 U. S. 466.

(6) Per Gray, J., Nutting v. Massachusetts, 183 U. S. 556.

(7) Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410; L.
I. Co. v. Massachusetts, ibid. 566; P. F. A. V. New York, 119 id.
110; Hooper v. California, 155 id. 648; N. Y. L. 1. Co. v. Cravens,
178 id. 389; Nutting v. Massachusetts, 183 id. 553.

(8) Allgeyer v. Louisiana, 1185 U. S. 578.

(9) 14th August, 1876, 19 Stat. 141; 8th July, 1870, Rev. Stat.,
secs. 4937 to 4947.

(10)  The Trade Mark Cases, 100 U. S. 82.

(11) Act of 3d March, 1881, 21 Stat. 502, c. 138. See also Ryder v.
Holt, 128 U. S. 525; Warner v. S & H. Co., 191 id. 195.

(12) Almy v. California, 24 How. 169; as explained by Miller, J., in
Woodruff v. Parham, 8 Wall. 138. A tax on foreign bills of lading is
a tax On exports: Fairbank v. U. S., 181 U. S. 283.

(13) P. T. Co. v. W. U. T. Co., 96 U. S. 1, 9; Tel Co. v. Texas, 105
id. 460, 464; W. U. T. Co. v. James, 162 id. 650.

(14) Lottery Case, 188 U. S. 321, 363. FiiUer, C. J., and Brewer,
Shiras, and Peckham, JJ., dissented.

(15) N. S. Co v. U. S., 193 U. S. 197.

(16) Per Marshall, C. J., Gibboons v. Ogden, 9 Wheat. 1, 196.

(17) P. & S. S. S. Co. v. Pensylvania, 122 U. S. 336, per Bradley,
J. "Taxing is one of the forms of regulation. It is one of the
principal forms."

(18) Supra, see. 14.

(19) McCulloch v. Maryland, 4 Wheat. 420; The State Freight Tax, 15
Wall. 277.

(20) Taney, C. J., said, in the License Cases, 5 How. 504, 583, that
the police powers "are nothing more nor less than the powers of
government inherent in every sovereignty to the extent of its
dominions." Harlan, J., said, in Patterson v. Kentucky, 97 U. S.
501: "The police powers extend at least to the protection of the
lives, the health, and the property of the community against the
injuricous exercise by the citizen of his own rights."

(21) Gibbous v. Ogden, 9 Wheat. 201; The Passenger Cases, 7 How.
402, 479.

(22) See particularly T. Co. v. Wheeling, 99 U. S. 280; W. F. Co. v.
St.Louis, 107 id. 374; C. & C. B. Co. v. Kentucky, 154 id. 204, 212.

(23) Buttfield v. Stranahan, 192 U. S. 470.

(24) 29 Stat# 188 c. 255.

(25) Rev. Stat. 4197 et seq.

(26) Rev. Stat. 4219; 24 Stat. 79, c. 421.

(27) Rev. Stat. 4233;6 Stat. 320, c. 802;26 Stat. 425, C. S75;27
Stat. 55T, e. 202; 28 Stat. 82, c. 83 ; 28 Stat. 281, c. 284; 28
Stat. 645, C. 64; 28 Stat. 672, c. 102; 29 Stat. 381, c. 401; 29
Stat. 689, c. 389; 30 Stat. 96, c. 4.

(28) Rev. Stat. 4252, 4463; 22 Stat. 186, C. 374; 27 Stat. 445, C.
105; 29 Stat. 122, c. 199; 31 Stat 799, c. 386.

(29) Rev. Stat. 4501, 4509; 28 Stat. 667, c. 97; 29 Stat. 691, c.
389; 30 Stat. 775, c. 28.

(30) Rev. Stat. 4549; 30 f3tat. 755, c. 28.

(31) Rev. Stat. 4653.

(32) Rev. Stat. 4681.

(33) 27 Stat. 110, c. 158; 28 Stat. 362, c. 299; 30 Stat. 1151, C.
425.

(34) Rev. Stat. 5244; 26 Stat. 426, 453, 454, c. 907; 27 Stat. 110,
c. 158; 30 Stat. 1151 c. 425.

(35) Rev. Stat. 5623; 25 Stat. 382, C. 772.

(36) Rev. Stat. 5285; 25 Stat. 382, C. 772.

(37) 26 Stat. 313, c. 728.

(38) Rev. Stat. 4386 et seq.; 23 Stat. 31, 32, C. 60.

(39) 30 Stat. 424, c. 370.

(40) 27 Stat. 531, c. 196.

(41) 24 Stat. 379, e. 104; 2 5 Stat. 855, c. 382; 26 Stat. 743, c.
128; 27 Stat. 443.

(42) 26 Stat. 209, c. 647. Bee, also U. S. v. T. M. P. A., 166 U. S.
290; U. S. v. J. T. A., 171 id. 505; U. S. v. E. C. Knight Co., 156
id. 1; Hopkins v. U. S., 171 id. 578; A. P. & S. Co. v. U. S., 175
id. 211; N. S. CO V. U. S., 193 id. 197.

(43) L. V. R. v. Penna., 145 U. S. 192.

(44) Hanley v. K. C. S. Ry., 187 U. S. 617.

(45) Lord v. S. S. Co., 102 U. S. 541.

(46) The Daniel Ball, 10 Wall. 557.

(47) Coe v. Errol, 116 U. S. .528; per Bradley, J.

(48) Gibbons v. Ogden, 9 Wheat. 294.

(49) Cooley v. Board of Wardens, 12 How. 299, 314.

(50) Welton v. Missouri, 91 U. S. 275; County of Mobile v. Kimball,
102 id. 691; Browm v. Houston, 114 id. 681; Robbins v. Shelby County
Taxing District, 120 id. 493; Bowman v. C. & N. W. Ry., 125 id. 465,
508; Iiesy v. Hardin, 135 id. 100. Compare the ii3Lgenious argument
of Dr. Wm. Draper Lewis, in Chapter VI of his "Federal Power over
Commerce aud its Effect on State Action."

(51) C. & C. B. Co. v. Keentucky, 154 U. S. 204. See particularly
the judgment of Brown, J., p.p. 209 to 213, where there is a full
discussion of this subject, and an exhaustive classification of the
cases. License Tax Cases, 5 VVAH. 462, 470.

(52) U. S. v. Dewitt, 9 Wall 41; cf. Felsenheld v. U. S., 186 U. S.
126.

(54) McGuire v. The Comminnwealth, 3 Wall. 387.

(55) Pervear v. The Commomwealth, 5 Wau. 475.

(56) Patterson v. Kentu&y, 97 U. S. 501.

(57) A herd of sheep, driven at a reasonable rate of speed from a
point in one state a distance of many hundred miles across the
territory of a second state to a point in a third state and fed by
grazing en route, is property engaged in interstate commerce, and,
as such, exempt from taxation in the second state: Kelley v. Rhoads,
188 U. S. 1.

(58) Martin v. Waddell, 16 Pet. 367; Rundle v. D. & R. C. Co., 14
How. 80; Den v. Jersey Co., 15 id. 426; Smith v. Maryland, 18 id.
71; Jones V. Soulard,'24 id. 41; R. Co. v. Schurmeir, 7 Wall. 272;
Weber v. Harbor Commissioners, 18 Wall. .57; 1. C. R. v. IWnoiE, 146
U. S. 387, 184 id. 77; St. A. F. W. P. Co. v. St. P. W. Comrs., 168
id. 349.

(59) Barney v. Keokuk, 94 U. S. 324; H din v. Jordan, 140 id. 371;
Mitchell v. Smale, ibid. 406. 

(60) Pollard v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18
Wall. 57; Shively v. Bowlby, 152 U. S. 1; M. T. Co. V. Mobile, 187
id. 479; U. S. v. M. R. Co., 189 id. 391.

(61) Smith v. Maryland, 18 How. 71; Manchester v. Massachusetts, 139
U. S. 240; cf. Geer v. Conueeticut, 161 id. 5ig. (62) MeCready v.
Virginia, 94 U. S. 391, 395.

(63) U. S. v. Bevans, 3 Wheat. 336.

(64) Article I, See. 9.

(65) South Carolina v. Georgia, 93 U. S. 4. 

(66) Pennsylvania v. W. & B. B. Co., 18 How. 421, 423.

(67)  Const., Article T, Sec. 9.

(68) Woodruff v. Parham, 8 Wall. '123.

(69) Act of 12th April, 1900, 31 Stat. 77, c. 191, sees. 2 and 3;
Dooley v. U. S., 183 U. S. 151. White, J., held that the fact that
Porto Rico is not a foreign country, is decisives. Brown, Gray,,
Shiras, and McKenna, JJ., concurred, holding, also, that the tax was
imposed upon importations into Porto Rico, and not upon exports
from the United States. Fuller, C. J., and Harlan, Drewer, and
Peckham, JJ., dissented upon the ground that the prohibition forbids
duties upon exports "irrespective of their destination." See supra,
see. 17. (70) Pace v. Burgess, 92 U. S. 372; Turpin v. Burgess, 117
id. 504; Cornell v. Coyne, 192 id. 418.

(71) Fairbank v. U. S., 181 U. S. 283. @rlan, Gray, White, and
McKenna, JJ., dissented.

(72) State Tonnage Tax Cases, 12 Wall. 204.

(73) 13 Stat. 70; ibid. 444.

(74) State Tonnage Tax Cases, 12 Wall. 204.

(75) Steamship Co. v. Port Wardens, 6 Wall. 31.

(76) Peete v. Morgan, 19 Wan. 581.

(77) Cannon v. New Orleans, 20 Wall. 577.

(78) I. S. S. Co. v. Tinker, 94 U. S. 238.

(79) Such dues are also open to objectiou as duties on tonnage.
Section 3.6.

(80) 6 Wall. 31.

(81) Foster v. Master and Wardens of the Port of New Orleans, 94 U.
S. 2".  (82) Section 38.

(83) Peete v. Morgan, 19 Wall. 581.

(84) Cannon v. New Orleans, 20 Wall. 577.

(85) Act 7th August, 1789, see. 4, 1 Stat. 54.

(86) Cooley v. The Board of Wardens, 12 How. 299.

(87) Ex paru MeNiel, 13 Wall. 236; Wilson v. MeNamee, 102 U. S. 572.

(88) Ex parte MeNiel, supra.

(89) Wilson v. MeNamee, supra.

(90) S. S. Co. v. lit

(91) The China, 7 Wall. 53.

(92) Spraigue v. Thompson, 118 U. S. 90.

(93) Gibbons v. Ogden, 9 Wheat. 1.

(94) Acts 7th July, 1838, 5 Stat. 304; 30th August, 1852, 10 Stat.
61.

(95) The Daniel Ball, 10 Wall. 557.

(96) Sinnot v. Davenport, 22 How. 227.

(97) Foster v. Davenport, 22 How. 244.

(98) The case of New York v. Miln, 11 Pet. 102, though cited, and
relied on, in the argument, was not noticed in the judgment of the
court.

(99) Hall v. De Cuir, 95 U. S. 485; cf. L., N. 0. & T. Ry. v.
Mississippi, 133 id. 587; C. & 0. Ry. v. Kentucky, 179 id. 388.

(100) Veazie v. Moor, 14 How. 568.

(101) 21 How. 184.

(102) P. 187.

(103) 11 Pet. 102.

(104) P. 161.

(105) 22 How. 227.

(106) 22 How. 224; supra, Section 41.

(107) Infra, Section 52b.

(108) 160 U. S. 357, 361.

(109) Morgan v. Louisiana, 118 U. S. 455; Bartlett v. Lockwood, 160
id. 357. See also C. P. D. N. v. Louisiana, 186 id. 380.

(110) Peete v. Morgan, 19 Wzall. 581.

(111) Kimmish v. Bali, 129 U S. 217; M., K. & T. Ry. v. Haber, 169
id. 613.

(112) Rasmussen v. Idaho, 181 U. S. 198; Smith V. S. L. & S. W. R.,
ibid. 248. See also Reid v. Colorado, 187 id. 137.

(113) R. Co. v. Husen, 95 U. S. 465.

(114) Minnesota v. Baxber, 136 U. S. 313.

(115) Smith v. S. L. & S. W. Ry,., 181 U. S. 248, 255.

(116) G. F. Co. v. Pennsylvania, 114 U. S. 196, per Field, J.

(117) II A ferry is in respect of the landing place, and not of the
water: Vin. Abr. Vol. XIII, P. 208, Title "Ferry."

(118) Fanning v. Gregoire, :16 How. 524; Conway v. Taylor, 1 Bl.
603.

(119) W. P. Co. v. East St. Louis, 107 U. S. 365; T. Co. v.
Wheeling, 99 id. 273.

(120) St. Louis v. W. F. Ce., 11 Wall. 423; G. F. Co. v.
Pennsylvania, 114 U.S. 196. See also St. Clair County v. I. S. & C.
T. Co., 192 id. 454. 

(121) The MonteUo, 20 Wall. 430, 441; Leovy v. U.S., 177 U. S. 621;
The Daniel Ball, 10 WalL 557.

(122) N. B. Co. v. U. S., 105 U. S. 470; U. S. v. B. B. B. Co., 176
id. 211.

(123) N. B. Co. v. U. S., 105 U. S. 470.

(124) The Clinton Bridge, 10 Wall. 454.

(125) Pennsylvania v. W. & B. B. Co., 18 How. 421.

(126) Act of 13th July, 1892, c. 158, 27 Stat. 88, 110.

(127) Per White, J., in L. S. 8= M. S. Ry. v. Ohio, 165 U. S. 365,
369.

(128) Ibid. 368. See also Cummings v. Chicago, 188 U. S. 410;
Montgomery v. Portland, 190 id. 89, which decide that under existing
legislation the right to construct a wharf or dock in a navigable
water of the United States wholly within the limits of a state
depends upon the consent of the state in addition to the consent of
the federal government.

(129) Willson v. The B. B. C. M. Co., 2 Pet. 245 ; Pennsylvania v.
The W. & B. B. Co., 9 How 647, 11 id. 528, 13 id. 518, 18 id. 421;
M. & M. R. v. Ward, 2 Bl. 485; The Albany Bridge Case, 2 Wall. 403;
The Passaic Bridge Case, .3 Wall. 782; Gilman v. Philadelphia, ibid.
713; Pound v. Turelk, 95 U. S. 459; Escanaba Co. v. Chicago, 107 id.
678; CardweU V. A. B. Co., 113 id. 205; Hamilton v. V., S. & P. R.,
119 id. 280; Huse v. Glover, ibid. 543; W. B. Co. v. Hatch, 125 id.
1; L. S. & M. S. R. v. Ohio, 165 id. 365; U. S. v. B. B. B. Co., 176
id. 211; Rider v. U. S., 178 id. 251; Leovy v. U. S., 177 id. 621.

(130) Escanaba Co. v. Chicago, 107 U. S. 678; Huse v. Glover, 119
id. 543; @ds v. M. R. I. Co., 123 id. 288.

(131) Cardwell v. A. B. Co., 113 U. S. 205; Hamilton v. V., S. & P.
R., 119 id. 280; W. B. Co. v. Hatch, 125 id. 1.

(132) U. S. v. R. G. D. & 1. Co., 174 U. S. 690.

(133) C. & C. B. Co. v. Kentucky, 154 U. S. 204; Brown, Harlan,
Brewer, Shiras, and Jackson, JJ., concurring in the judgment and
also in the opinion, and Fuller, C. J, and Field, Gray, and White,
JJ., concurring in the judgement but not in the opinion.

(134) P., C., C. & S. L. Ry. v. Board of Public Works, 172 U. S. 32.

(135) K. & H. B. Co. v. Illimois, 175 U. S. 626.

(136) South Carolina v. Georgia, 93 U. S. 4.

(137) Wisconsin v. Duluth, 96 U. S. 379.

(138) Veazie v. Moor, 14 How. 568; Withers v. Buckley, 20 id. 84.

(139) 102 U. S. 691, 698.

(140) County of Mobile v. Kimball, 102 U. S. 691.

(141) Huse v. Glover, 119 U.S. 543; Sands v. M. R. I. Co., 123 id.
288; L. & P. Co. v. Mullen, 176 id 126.

(142) Harman v. Chicago, 147 U. S. 396.

(143) P. Co. v. Kookuk, 95 U. S. 80; P. Co. v. St. Louis, 100 id.
423; Vicksburg v. Tobin, ibid. 430 @ P. C. v. Catlettsburg, 105
id. 559.

(144) T. Co. v. Parkersburg, 107 U. S. 691; 0. P. Co v. Aiken, 121
id. 444.

(145) Guy v. Baltimore, 10 0 U. S. 434; infra, Section 50.

(146) A. S. & W. Co. v. Sp@, 192 U. S. 500.

(147) Brown v. Maryland, 12 Wheat. 419.

(148) Low v. Austin, 13 Wall. 29.

(149) Cook v. Pennsylvania, 97 U. S. 566.

(150) May, v. New Orleans, 178 U. S. 496. Almy v. California, 24
How. 169, is explained in Woodruff v. Parham, 8 WaH. 123, 138, and
should have been decided upon the ground that the tax in question
was a tax upon the transportation of goods from one state to
another, and, therefore, a regulation of commerce and as such void.

(151) Waring v. The Mayor, 8 Wall. 110.

(152) Gibbons v. Ogden, 9 Wheat. 1, 203, per Marshall, C. J.

(153) Turner v. Maryland, 107 U. S. 55.

(154) Turner v. Maryland, ui5i supra.

(155) P. & tSS. C. Co. v. Louisiana, 156 U. S. 590.

(156) L. & P. Co. v. Mullen, 176 7u. S. 126.

(157) P. G. Co. v. North Carolina, 171 U. S. 345.

(158) Crandall v. Nevada, 6 Wall. 35.

(159) People v. C. G. T., 10T U. S. 59.

(160) Brimmer v. Rebman, 138 U. S. 78.

(161) Voight v. NVright, 141 U. S. 62.

(162) Minnesota v. Barber, 136 U. S. 313.

(163) Vance v. W. A. V. Co., 170 U. S. 438.

(164) Woodruff v. PELrham, 8 Wall. 123; Brown v. Houston, 114 U. S.
622; Emert v. Missouri, 156 id. 296.

(165) Ward v. Maryland, 12 Wall. 418. Bradlev J., concurred, but
held that the license required would be equally void if it imposed
upon residents the same burden for selling goods as it imposed upon
nonresidents, for it would be in fact a duty upon importations from
one state to another.

(166) Welton v. Missouri, 91 U. S. 275; Webber v. Virginia, 103 id.
344.

(167) Guy v. Baltimore, 100 U. S. 434.

(168) Corson v. Maryland, 120 U. S. 502, 506.

(169) Walling v. Michigan, 116 U. S. 446.

(170) Lyng v. Michigan, 135 U. S. 161.

(171) Brimmer v. Rebman, 138 U. S. 78.

(172) Voight v. Wright, 141 U. S. 62.

(173) Act of 8th August, 1890, 26 Stat. 313, C. 728.

(174) Leisy v. Hardin, 135 U. S. 100.

(175) Seott v. Donald, 165 U. S. 58, 100.

(176) Hinson v. Lott, 8 Wan. 148. 

(177) M. Co v. Gage, 100 U. S. 676; Emert v.Missouri, 156 id. 296;
v. Farley, 159 id. 263.

(178) Ficklen v. Shelby County Taxing District, 145 U. S. 1.

(179) R. D. Co. v. orister, 179 U. S. 445.

(180) Downham v. Alexandria council, l0 wall. 173; Brenian v.
Titusville, 153 U. S. 289; Stockard v. Morgan, 185 id. 27.

(181) Robbins v. Shelby County Taxing District, 120 U. S. 489, 494.

(182) Asher v. Texas, 128 r. S. 129; Brennan v. Titusville, 153 id.
289; N. & W. Ry. v. Sims, 191 id. 441; cf. A. S. & W. Co v. Speed,
192 id. 500.

(183) Robbins v. Shelby County Taxing District, 120 U. S. 489, 501.

(184) Crutcher v. Kentucky, 141 U. S. 47, 57.

(185) 12 Wheat. 419,

(186) P. 441.

(187) P. 447.

(188) P. 443.

(189) Woodruff v. Parham, 8 Wall. 123; A. S. & W. Co. v. Speed, 192
U. S. 500.

(190) Woodruff v. Parham, 8 Wall. 123.

(191) Brown v. Houston, 114 U. S. 622; P. & S. C. Co. v. Bates, 156
id. 577.  (192) Bowman v. C. & N. W. Ry., IL25 U. S. 465. Waite, C.
J., and Harlan and Gray, JJ., dissented.

(193) Leisy v. Hardin, 135 U. S. 100. Harlan, Grav, and Drewer, JJ.,
dissented.

(194) Act of 8th August, 1890, 26 Stat. 313, C. 728.

(195) License Cases, 5 How. 580.

(196)In re Rahrer, 140 TJ. S. 545.

(197) Harlan, Gray, and Brewer, JJ., concurred in the judgment, but
not in all the reasoning of the court.

(198) Scott v. Donald, 165 U. S. 58, 100.

(199) Act of N August, 1886, 2 4 Stat. 209, c. 840.

(200) Plumley v. Massachusetts, 155 U. S. 461, Fuller, C. J., and
Field and Brewer, JJ., dissenting. See also Crossman v. Lurman, 192
U. S. 189.

(201) Schollenberger v. Pennsylvania, 171 U. S. 1. Harlan and Gray,
JJ., dissented.

(202) Austin v. Tennessee, 179 U. S. 343. White, J., concurred, and
Fuller, C. J., and Brewer, Shiras, and Peckham, JJ., dissented.

(203) P. 359.

(204) Gibbons v. Ogden, 9 Wheat. 203, 235.

(205) Searight v. Stokes, 3 How. 151; N., M. & Co. v. Ohio, ibid.
720; Achison v. Huddleson, 12 id. 293.

(206) R. Co. v. Fuller, 17 Wall 560.

(207) Munn v. lllinois, 94 U. S. 113; Budd v. New York, 143 id. 517;
Brass v. North Dakota, 153 id. 391.

(208) C., B. & Q. R. v. Iowa, 94 U. S. 155; Peik v. C. & N. W. Ry.,
ibid. 164. Field and Strong, IJ., dissented in each case.

(209) Stone v. F. L. m& T. Co., 116 U. S. 307; Stone v. T. C. R.,
ibid. 347; Stone v. N. 0. & N. E. R., ibid. 352.

(210) N., C. & S. L. Ry. v. Alabama, 128 U. S. 96.

(211) L., N. 0. & T. Ry. v. Mississippi, 133 U. S. 587. Harlan and
Bradley, JJ., dissented. C. & 0. Ry. v. Kentucky, 179 U. S. 388.

(212) He@gtou v. Georgia, :163 U. S. 299.

(213) N. Y., N. H. & H. R. v. New York, 165 U. S. 628.

(214) N. Y., N. H. & H. R. v . New York, supra.

(215) Gladson v. Minnesota, 166 U. S. 427; cf. L. S. & M. S. Ry. 'V.
Ohio, 173 id. 285; I. C. R. v. llliinois, 163 id. 142.

(216) C., M. & S. P. Ry. v. Solan, 169 U. S. 133.

(217) R. & A. R. v. P. T. Co., 169 U. S. 311.

(218) L. S. & M. S. RY. v. Ohio, 173 U. S. 285.

(219) M., K. & T. Ry. v. McCann, 174 U. S. 580.

(220) Erb v. Morasch, 177 U. S. 584.

(221) W., M. & P. R. v. Jacobson, 179 U. S. 287.

(222) M. P. Ry. v. Mackey, 127 U. S. 205.

(223) M. P. Ry. v. Humes, 115 U. S. 512.

(224) M. & S. L. R. v. Beckwith, 129 U. S. 26.

(225) M. & S. L. R. v. Minnesota, 193 U. S. 53.

(226) The License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall.
129; Beer Co. v. Massachusetts, 97 U. S. 25; Poster V. Kang@, 112
id. 201; Mugler v. Kansas, 123 id. 623; Act of 8th August, 1890, 26
Stat. 313, c. 728, legislatively limiting the operation of Leisy v.
Hardin, 135 U. S. 100

(227) Crossman v. Lurman, 192 U. S. 189.

(228) Escanaba Co. v. Chicago, 107 U. S. 678.

(229) Finning v. Gregoire, 16 How. 524, 534; Conway v. Taylor, 1
Black, 603

(230) The James Gray v. The John Fraser, 21 How. 184.

(231) R. Co. v. Richmond, 9(5 U. S. 521.

(232) W., S. L. & P. Ry. v. Lllinois, 118 U. S. 557. Waite, C. J.,
and Bradley and Gray, JJ., dissented.

(233) L. & N. R. t,. Eubank, 184 U. S. 27. Gray and Brewer, ii.,
dissented. G., C. & S. F. Ry. v. Helfley, 158 id. 98.

(234) 1. C. R. v. Illinois, 163 U. S. 142.

(235) C., C., C. &St. L. Ry. v. Illinois, 177 U. S. 514; Gladson v.
Minnesota, 166 id. 427.

(236) Sinnot v. Davenport, 22 How. 227; Foster v. Davenport, ibid,
244. New York V. Miln, 11 Pet. 102, from the judgment in which
Marshall, C. J., and Story, J., dissented, though not formally, is
practically overruled.

(237) Bowman v. C. & N. W. Ry., 125 U. S. 465.

(238) Ilanley v. K. C. S. Ry., 187 U. S. 617.

(238) a C., M. & St. P. Ry v. Tompkins, 176 U. S. 167, 173.

(238) b Stone v. F. L. & T. Co., 116 U. S. 307; Dow v. Beidelnian,
125 id. 680, 689; G. R. & B. Co. v. Smith, 128 id. 174, 179; C., M.
& St. P. Ry. v. Minnesota, 134 id.,618, 458; C. & G. T. Ry. v.
Wellman, 143 ii. 339, 344; Budd v. New York, ibid. 517, 547. Until
Congress otherwise directs, a state may regulate the intrastate
rates of railways chartered by the United States: Smyth v. Ames, 169
U. S. 466; Reagan v. M. T. Co., 154 id. 413.

(238) c L. S. & M. S. Ry. V. Smith, 173 U. S. 684.

(238) d C. & G. T. Ry. v. Wellman, 143 U. S. 339, 344.

(238) e Reagan t,. F. L. & T. Co., 154 U. S. 362, 399.

(238) f Reagan v. P. L. & T. Co., supra; St. L. & S. F. Ry. v. Gill,
156 U. S. 649, 657; C. & L. T. IL Co. v. Sandford, 164 id. 578, 584;
C., B. & Q. R. v.

(238) g M. & St. L. Ry. v. Minnesota, 186 U. S. 287.

(238) h Smyth v. Ames, 169 U. S. 466, 546; 171 id. 361.

(238) i See also S. D. L. & T. Co. v. National City, 174 U. S. 739,
757; Stanislaus County v. S. J & K. R. C. & I. Co., 192 id. 201; S.
D. L. & T. Co v. Jasper, 189 id. 439.

(239) Act of 3d August, 1882, 23 Stat. 214; The Head Money Cases,
112 U.S. 580.

(240) Per Miller, J., 112 U. S. 594.

(241) B. & 0. R. v. Maryland, 21 Wall. 456. Miller, J., page 475,
dissented, holding that the state could not raise a revenue from all
persons going from, or through, the state by railway to a point
beyond the state. And compare Allen v. P. P. C. Co., 191 U. S. 171.

(242) Minot v. P., W. & B. R., The Delaware Railroad Tax Case, 18
Wall. 206.

(243) Maine v. G. T. Ry., 142 U. S. 217. Bradley, Harlan, Lamar, and
Browin, JJ., dissented. A state cannot, upon this principle, tax a
corporation created by an act of Congress: California v. C. P. E.,
127 U. S. 1. Arad a state cannot tax the right of transporting
interstate passengers within its borders: Allen P. P. C. Co., 191 U.
S. 171.

(244) N. Y., L. E. & W. R. v. Pennsylvania, 158 U. S. 431.

(245) P. P. C. Co. v. Pennsylvania, 141 U. S. 18. (Field, Bradley,
and Haxlan, JJ., dissented, on the ground that the tax was in
reality imposed on cars which only came within the state in pursuit
of commerce, and was, therefore, void under the principle of Hays v.
P.M.S. Co., 17 How. 596) P.P.C. Co. v. Hayward, 141 U.S. 36;
C.,C.,C.&S.L.Ry. v. Backus, id. 439; A.R.T. Co. v. Hall, 174 id. 70;
U.R.T. Co v. Lynch, 177 id. 149. And a state, in taxing an express
or telegraph company, may regard the mileage or property within the
state not strictly locally but part of a system operated in several
states: A. E. Co. v. Ohio, 165 U. S. 194, 166 id. 185; A. E Co. v.
Kentucky, ibid. 171; W. U. T. Co. V. Missouri, 190 id. 412; cf.
Fargo v. Hart, 193 id. 490.

(246) Osborne v. Florida, 1164 U. S. 650; P. Co v. Adams, 189 id.
420. See also Allen u. P. P. C. Co, 191 id. 171.

(247) Ashley v. Ryan, 153 U. S. 436.

(248) L. V. R. v. Pennsylvania, 145 U. S. 192.

(249) New York v. Knight, 192 U. S. 21.

(250) Woodruff v. Parham, 8 Wall. 123.

(251) Brown v. Houston, 114 U. S. 622; P. & S. C. Co. v. Bates, 156
id. 577.

(252) Coe v. Errol, 116 U. S. 517.

(253) Crandall v. Nevada, 6 Wall. 35.

(254) By Chase, C. J., and Clifford, J.

(255) By Miller, J.

(256) The State Freight Tax, 15 Wall. 232; Swayne and Davis, JJ.,
dissented; E. Ry. v. Pennsylvan 5 Wall. 282.

(257) Packard v. P. S. C. Co, 117 U. S. 34; Tennessee v. P. S. C.
Co., ibid. 51. See also Allen v. P. P. Co., 191 id. 171.

(258) Fargo v. Michigan, 121 U. S. 230.

(259) P. & S. S. Co. v. Pennsylvania, 122 U. S. 326, overruling the
State Tax on Railway Gross Receipts, 15 Wall. 284, from the judgment
in which Miller, Field, and Hunt, JJ., had dissented.

(260) N. & W. R. v. Pennsylvania, 136 U. S. 114.

(261) McCall v. California, 136 U. S. 104; Fuller, C. J., and Brewer
and. Gray, JJ., dissented.

(262) Crutcher v. Kentucky, 141 U. S. 47.

(263) The Passenger Cases, 7 How. 283; Taney, C. J., and Daniel,
Nelson, and Woodbury, JJ., dissented; Henderson v. The Mayor, 92
U.S. 259; Chy Lung v. Freeman, ibid. 275; People v. Compagnie
Generale Transatlantique, 107 U.S. 59.

(264) Almy v. California, 24 How. 169, as explained by Miner, J., in
Woodruff v. Parham, 8 Wall. 124, 137.

(265) T. Co. v. Wheeling, 99 U. S. 273; W. P. Co. v. East St. Louis,
107 id. 365.

(266) Hays v. P. M. S. Co., 17 How. 596; St. Louis v. W. F. Co., 11
W&U. 423; G. P. Co. v. Pennsylvania, 114 U. S. 196.

(267) Morgan v. Parham, 16 Wall. 471; Act of 18th February, 1793, 11
Stat. 306.

(268) Moran v. New Orleans, 112 U. S. 69; S. S. Co. v. Portwardens,
6 Wall. 31.

(269) Harman v. Chicago, 147 U. S. 396.

(270) Act 4th February, 1887, 24 Stat. 379, as amended by Acts of
7th August, 1888, 25 Stat. 382; 2nd March, 1889, 25 Stat. 855; 10th
February, 1891, 26 Stat. 743; 11th February, 1893, 27 Stat. 443;
2nd March, 1893, 27 Stat. 531; 1st April, 1896, 29 Stat. 85; 8th
February, 1895, 28 Stat. 643; 3d March, 1901, 31 Stat. IL446; 11th
February, 1903, 32 Stat. 823; 19th February, 1903, 32 Stat. 847; 2nd
March, 1903, 32 Stat. 943.

(271) T. & P. Ry. v. 1. C. C., 16" U. S. 197.

(272) I. C. C. v. Brimson, 154 U. S. 447.

(273) C., N. 0. & T. P. Ry. V. I. C. C., 162 U. S. 184; I. C. C. v.
C., N. 0. & T. P. Ry., 167 id. 479; Harlan, J., dissented.

(274) I. C. C. v. A. M. Ry., 168 TJ. S. 144.

(275) I. C. C. v. A., T. & S. P. R., 149 U. S. 264.

(276) 1. C. C. v. Brimson, 154 U. S. 447.

(277) I. C. C. v. Brimson, 154 U. S. 447; Fuller, C. J., and Brewer
and Jackson, JJ., dissented, and Field, J., did not sit.

(278) 27 Stat. 44@ c. 83.

(279) Counselman v. Hitchcock, 14:2 U. S. 547.

(280) Brown v. Walker, 161 U. S. 591; Shiras, Gray, and White, JJ.,
dissented.

(281) C., N. 0. & T. P. Ry. v. I. C. C., 162 U. S. 184.

(282) Parsoias v. C. & N. W. Ry., 167 U. S. 447.

(283) 1. C. C. v. B. & 0. R., 145 U. S. 263.

(284) 1. C. C. v. D., G. H. & M. Ry., 167 U. S. 633.

(285) Wight v. U. S., 167 U. S. 512.

(286) M. C. P. & S. Co. v. Insurance Co. of N. A., 151 U. S. 368.

(287) U. S. v. T. M. P. A., 166 U. S. 290.

(288) Parsons v. C. & N. W. Ry., 167 U. S. 447.

(289) 1. C. C. v. A. M. Ry., 168 U. S. 144.

(290) T. & P. Ry. v. T. C. C., 162 U. S. 197.

(291) T. & P. Ry. v. I. C. C., 162 U. S. 197.

(292) 1. C. C. v. A. M. Ry., 168 U. S. 144; L. & N. IR. v. Behlmer,
175 id. 648; E. T., V. & G. Ry. v. I. C. C., 181 id. 1; I. C. C. V.
L. & N. R., 190 id. 273.

(293) R. Co. v. Fuller, 17 Wall. 560.

(294) W., S. L. & P. Ry. v. luinois, 118 U. S. 5.i7; Waite, C. J.,
and Bradley and Gray, JJ., dissented.

(295) L. & N. R. v. Eubank, 1 84 U. S. 27; Gray and Brewer, JJ.,
dissented; G.1 C. & S. P. Ry. v. Hefley, 158 U. S. 98.

(296) 1. C. C. v. Baird, 194 U. S. 25.

(297) Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598; (1892), C. A.
43.

(298) Mrs. Green, "Town Life in the XV Century."

(299) 188 U. S. 373.

(300) Democracy and Liberty, Vol. 11, page 463.

(301) 2nd July, 1890, 26 Stat. 209.

(302) Autobiography of Hon. Geo. F. Hoar, Vol. 11, page 363.

(303) 32 Stat. 823.

(304) 32 Stat. 825.

(305) 32 Stat. 854.

(306) 32 Stat. 1031,1062.

(307) U. S. v. J. T. A., 171 U. S. 505.

(308) 193 U. S. 197.

(309) Fuller, C. J., and Peckbaim and Holmes, JJ., concur.

(310) U. S. v. J. T. A., 171 U. S. 505.

(311) 166 U. S. 290.

(312) 171 U. S. 505.

(313) 171 U. S. 578.

(314) U. S. v. J. T. A., 171 U. S. 505.

(315) In his dissentiug judgment in N. S. Co. v. U. S., 193 U. S.
197, 400.

(316) Matthew v. A. P. of N. Y., 136 N. Y. 333.

(317) 193 U. S. 357.

(318) 18 193 U. S. 197.

(319) Per Peckham, J., in FIopkins v. U. S., 171 U. S. 578, 592.

(320) U. S. v. T. M. F. A., 166 U. S. 290; U. S. v. J. T. A., 171
id. 505.

(321) N. S. Co. v. U. S., 193 U. S. 393.

(322) Act 4th February, 1887, 24 Stat. 379, C. 104, and its
supplements, supra, Section 49.

(323) See the dissenting judgment of Wite, J., in U.S. v. T.M.F.A.,
166 U.S. 357 et seq.

(324) Minnesota v. N. S. Co., 194 U. S. 48.

(325) Connolly V. U. S. P. Co., 184 U. S. 540.

(326) Bement v. N. H. Co., 186 U. S. 70, 88.

(327) In re Debs, 64 Fed. 724, 745, 755, 158 U. S. 564. See 'The Law
of Contracts in Restraint of Trade, with special Reference to
Trusts, "by George Stuart Patterson, Esq.

(328) A.P. & S. Co. V. U. S., 175 U. S. 211.

(329) Montague v. Lowry, 193 U. S. 38.

(330) U. S. v. T. M. F. A., 166 U. S. 290; Gray, Shiras, and White,
JJ., dissented; U. S. v. J. T. A., 171 id. 505; Gray, Shiras and
White, JJ., dissented, and McKenna, J., did not sit.

(331) N. S. Co. v. U. S. 193 U. S. 197; Harlan, Brown, McKenna, and
Day, JJ., concurred in the judgment read by Harlan, J., and Brewer,
J., concurred in the decree, but did not concur in all the reasoning
of Harlan, J.; per, C. J., and Peckham, White, and Holmes, JJ.,
dissented.

(332) Bement v. N. H. Co., 186 U. S. 70; Harlan, Gray, and White,
JJ., did not sit in this case.

(333) U. S. v. E. C. Knight Co., 156 U. S. 1. Harlan, J., dissented.

(334) Hopkins v. U. B., 171 U. S. 5T8; Anderson v. U. S., ibid. 604.
Harlan, J., dissented in both cases. In the first case it was held
to be an immaterial circumstance that the local market was situated
partly in one state and partly in another state. In the last case
the facto differed only in that the parties to the agreement were
purchasers of property upon their own account.

(335) U.S. v. T. M. F. A., U. S. v. J. T. A., and N. S. Co. V. U. S.

(336) 4th February, 1887, 24 Stat. 379, c. 104.

(337) Smyth v. Ames, 169 U. S. 466.

(338) 25 Stat. 855.

(339) 32 Stat. 847.

(340) Hare v. L. & N. R., 2 J. & H. Ch. 80, 103; M. & L. R. v. C.
R., 66 N. H. 100. See Report XIV of the Interstate Commerce
Commission.

(341) 193 U. S. 197.

(342) 156 U. S. 1.

(343) See the view of Holmes, J., 193 U. S. 405.

(344) 193 U. S. 197.

(345) U. S. v. Isham, 17 WalL 506.

(346) Act of 24th July, 18616, 14 Stat. 221; Rev. Stat. 5263, etc.

(347) Congress, by Act of 8th June, 1872, c. 335, 17 Stat. 308; Rev.
Stat. 3964, declared all railway lines in the United States to be
post roads.

(348) This act does not apply to telephone companies: Richmond v. S.
B. T. Co., 174 U. S. 761.

(349) W. U. T. Co. v. James, 162 U. S. 650.

(350) St. Louis v. W. U. T. Co., 148 U. S. 92; P. T. C. Co. v.
Baltimore, 156 id. 210. See also W. U. T. Co. v. New Hope, 187 id.
419; but of. A. & P. T. Co. v. Philadelphia, 190 id. 160; P. T. C.
Co. v. New Hope, 192 id. 55; P. T. C. Co. 'V. Taylor, ibid. 64.

(351) Massachusetts v. W. U. T. Co., 141 U. S. 40; P. T. Co. v.
Adams, 155 ia. 688; W. U. T. Co. v. Taggart, 163 id. 1; W. U. T. Co.
v. Missouri, 190 id. 412.

(352) Ratterman v. W. U. T. Co, 127 U. S. 411; P. T. C. Co. v.
Charleston, 153 id. 692.

(353) Rev. Stat., see. 5263, etc.

(354) P. T. Co. v. W. U. T. Co., 96 U. S. 1.

(355) W. U. T. Co. v. Texas, 105 U. S. 460.

(356) W. U. T. Co. v. Pendleton, 122 U. S. 347.

(357) Leloup v. Port of Mobile, 127 U. S. 640 (overruling Osborne v.
Mobile, 16 Wall. 479); W. U. T. Co. v. Alabama, 132 U. S. 472.

(358) W. U. T. Co.,v. Massachusetts, 125 U. S. 530.

(359) Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6
id. 515; Cherokee Nation v. S. K. Ry., 135 U. S. 641.

(360) Worcester v. Georgia, 6 Pet. 515.

(361) Cherokee Nation v. S. ]K. Ry.7 135 U. S. 641.

(362) U. S. v. Holliday; U. S v. Haas, 3 Wall. 407.

(363) U. S. v. Forty-three Gallons of Whiskey, 9,3 U. S. 188. As to
the term "Indian Country," see Ex parte Crow Dog, 109 U. S. 556; U.
S. v. Le Bris, 121 id. 278. The subject of the exercise by the
states of their Powers of taxation, and of police regulation, as
affecting commerce, is more fully treated in other chapters of this
book.

