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;
     (b)  Regulation by taxation;
     (c)  The Interstate Commerce Act.
53. The Anti-trust law.
54. Telegraphs.
55. Commerce with the 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  regulating 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  vigor 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 traffic. (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 government 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  harbors (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

33.  Foreign commerce  is, obviously,  that which  is carried  on
between a  foreign port,  or a  point in a foreign country, 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 cf 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  favoritism  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  Puerto 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 other  hand,  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.  Section  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 any 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 harbor
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)


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 color, "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 harbor, 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 harbor, 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 commercial  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 harbor, 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)


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 collect 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  harbors 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)


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 one 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 non-navigable  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 incorporated 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  harbors, (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  harbors, 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 harbors  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  harbors 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 vessel's. (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 eases  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 their  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; (160)  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 therefor,  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 products 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,  non-discriminating 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 ground  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  ten-pound 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."


(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  color, of signals "any person not having received from a
state board a certificate of freedom from color blindness." (210)
A state  may require  railways to provide separate accommodations
for white and colored 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 ear  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 harbors.  (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  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. (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 highways  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.

     If transportation  rates could be treated, without reference
to the public interest as subjects of private bargain between the
railway and  its customers, it would be lawful for the railway on
the one hand to demand whatever sum, however exorbitant, that the
necessities of  its customer would compel him to pay, and for the
customer, on  the other hand, to have his goods carried as nearly
free as  possible. But that duty to the public which requires the
railway to  carry all  freight at  a reasonable  rate defines  as
reasonable that  rate which  not only  adequately remunerates the
railway for  the transportation  of the  particular freight,  but
also enables  it to  carry that  freight without prejudice to its
performance of its duty of transporting other classes of freight.
In other  words, neither  the customer,  nor the  railway can  be
permitted to  ignore the  fact that the railway is not a private,
but a  common carrier,  and that,  therefore, its charges must be
fixed with  reference to  its performance  of duties to others as
well as to the particular customer.

     Local freight  costs the railways more than through freight.
By reason  of the  fluctuation in  its demand  upon the  terminal
facilities, rolling  stock, and labour it involves a large outlay
in capital  and in cost of administration, with uncertainty as to
the amount  of return  in any  given period.  It necessitates the
frequent transportation  of light loads, and a consequent loss of
income  from   unused  facilities   and  unemployed  labour.  Its
necessary sidings,  switches, and  frogs increase  the perils  of
operation. On  the other hand, through freight can be transported
in full loaded cars, and with the minimum of labour, by reason of
certainty as  to the  duration of  the trip  and the demands upon
that labour.

     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 maybe 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,  and the  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
motive power  and rolling stock, and the possibility of obtaining
a full  return freight;  third, the  length of  the haul  and the
favorable or  unfavorable character  of the  grades;  fourth  the
degree of  expedition required,  and the consequent accommodation
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

     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.

     It is  true that  the sum  of the  par of the share and debt
capital of  every railway line does not always accurately express
the exact  amount of capital invested in the line. In some cases,
more, or  less, of the share capital is only water, and even more
or less  of the  debt capital may have been issued at a discount.
In other  cases, and  this is  certainly true  of the great trunk
lines, the  sum of  the par  of the share and debt capital is, by
reason of past expenditure of income in betterments, and, in some
cases and  to large  amounts, by  reason of  issues of additional
share capital  at a  premium, very  much  less  than  the  amount
actually invested in the line.


(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
which 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 other 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 through another state, the tax being "determined
in respect  of receipts  for  the  proportion  of  transportation
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  within 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)

     A state  may not  impose a capitation tax on persons leaving
the  state   by  railroad,   stage  coach,  or  otherwise.  (253)
Curiously enough, this case is referred to in the later judgments
as if  it had  been decided on the ground taken in the dissenting
judgment(254) that  the tax was void because it imposed "a burden
upon commerce  among the several states," whereas the judgment of
the court  was put(255)  on the  ground that  a state  tax on the
interstate transportation  of passengers is void because it is an
interference with  the freedom of transit of citizens to the seat
of government   and  is consequently  an  infringement  upon  the
federal  supremacy.   A  state   may  not  impose,  as  affecting
interstate commerce,  a tax  on freight.  (256)   A state may not
impose a privilege tax at a fixed rate per car on all cars run by
railways not  owning the cars, so far as affects cars used in the
transportation of passengers into, through, or out of, the state.
(257)   A state  may not,  so far as affects interstate commerce,
tax the gross receipts of corporations engaged in the business of
running cars  over any  of the  railways of  the state.  (258)  A
state may  not tax  the gross  receipts of  the transportation of
passengers or  goods in  interstate commerce.  (259)  A state may
not require  a railway company, being a link in a through line of
interstate transportation,  to pay  a license fee for maintaining
an office for the sale of tickets. (260)  A state may not require
an agent  of an  interstate transportation  line to pay a license
fee for  soliciting passenger  traffic between  points  in  other
states; (261)  nor require agents of foreign express companies to
take out  licenses, and  satisfy the  state authorities  that the
company has  an actual  capital to the amount fixed in the taxing
(262) statute.  A state  may not, directly or indirectly, tax the
importation of  passengers. (263)  A state may not impose a stamp
duty upon  bills of lading for the transportation of goods from a
port in  one state to a port in another. (264)  While a state may
tax the  property of those persons, natural or corporate, who may
be by  residence  subject  to  its  jurisdiction,  even  if  that
property be  invested in  ships, (265)  yet a  state may  not tax
property invested  in shipping,  whose owners  are not personally
subject to its jurisdiction, and which come into its ports in the
pursuit of  commerce, (266)  and this  exemption is not adversely
affected by  a temporary  enrollment of  a ship  in a port of the
taxing state.  (267)   Nor can a state tax shipping as such, when
engaged in  foreign or  interstate commerce, though its owners be
subject to  its  jurisdiction,  (268)  for  taxation  so  imposed
amounts to a regulation of commerce. (269)


(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, facilitated 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  the 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
circumstances 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  commission;
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  incriminate  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 Commerce 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 incriminate  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  acquire 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 favorable 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, therefore,  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 endeavor
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.

     It is  said that  the "trusts" have "a tendency to monopoly.
"The fact is that, except in the cases of patents and copyrights,
and of  those who control the sole and exclusive source of supply
of a  natural produce  it is  not possible  in this  day  of  the
world's history  to maintain  and enforce, more than temporarily,
extortionate  prices,   for  the  reason  that  there  is  always
available a large amount of uninvested capital seeking profitable
employment and  keenly watching for opportunities of remunerative
investment.  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  manufactures, was  the  great  cause  of  the  War  of
Independence. When  the successful 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  endeavored 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, with or
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."

     The first  of the  congressional antitrust  acts  (301)  was
drawn by  Senator Hoar,  (302) and  was passed  because  of  some
unintelligent clamor 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
commerce; subjects  to forfeiture, seizure, and condemnation "any
property owned  under any  contract, or  by any  combination,  or
person, 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  3rd 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)  In 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 intercourse, and that the ownership or transfer
of shares  in a  corporation created by a state cannot be said to
be in  any sense  commercial intercourse,  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
     enforceable 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 to
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  and 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  reasonable 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 2nd 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
after 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 the  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   conflicting   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 ownership. (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.


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.

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 treaty making 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)


(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. 

(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.

(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  ingenious 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,

(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  grslzing  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 iexports from the TJnited 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  McNiel, 13  Wall. 236; Wilson v. MeNamee, 102 U.S. 

(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.

(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.

(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

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

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

(136) South Caxolina 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;  Vicks     burg   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,

(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,

(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.,

(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

(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 practicallyy, 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 wsa, 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 loeally 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

(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 G6n6rale 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;  llth  ]Pebruary,
     1893, 27  Stat. 443;  2nd March,  1893, 27  Stat.  531;  1st
     April, 1896,  29 Stat. 85; 8th February, 1895, 28 Stat. 643;
     3d Mareh,  1901, 31  Stat. IL446;  llth 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.,

(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

(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

(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.; @er, 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.,

(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.

(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

(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,

(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. 

(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 Whiskev, 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.

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C. Stuart Patterson