A statute of Illinois enacts that if any railroad company shall,
within that state, charge or receive for transporting passengers or
freight of the same class, the same or a greater sum for any
distance than it does for a longer distance, it shall be liable to
a penalty for unjust discrimination. The defendant in this case
made such discrimination in regard to goods transported over the
same road or roads from Peoria in Illinois and from Gilman in
Illinois to New York, charging more for the same class of goods
carried from Gilman than from Peoria, the former being eighty-six
miles nearer to New York than the latter, this difference being in
the length of the line within the State of Illinois.
Held:
(1) This Court follows the Supreme Court of Illinois in holding
that the statute of Illinois must be construed to include a
transportation of goods under one contract and by one voyage from
the interior of the State of Illinois to New York.
(2) This Court holds further that such a transportation is
"commerce among the states" even as to that part of the voyage
which lies within the State of Illinois, while it is not denied
that there may be a transportation of goods which is begun and
ended within its limits, and disconnected with any carriage outside
of the state, which is not commerce among the states.
Page 118 U. S. 558
(3) The latter is subject to regulation by the state, and the
statute of Illinois is valid as applied to it. But the former is
national in its character, and its regulation is confided to
Congress exclusively, by that clause of the Constitution which
empowers it to regulate commerce among the states.
(4) The cases of
Munn v. Illinois, 94 U. S.
113;
Chicago v. Burlington & Quincy Railroad Co.
v. Iowa, 94 U. S. 155, and
Peik v. Chicago & Northwestern Railway, 94 U. S.
164, examined in regard to this question, and held, in
view of other cases decided near the same time, not to establish a
contrary doctrine.
(5) Notwithstanding what is there said, this Court holds now,
and has never consciously held otherwise, that a statute of a
state, intended to regulate or to tax or to impose any other
restriction upon the transmission of persons or property or
telegraphic messages from one state to another, is not within that
class of legislation which the states may enact in the absence of
legislation by Congress, and that such statutes are void even as to
that part of such transmission which may be within the state.
(6) It follows that the statute of Illinois, as construed by the
supreme court of the state and as applied to the transaction under
consideration, is forbidden by the Constitution of the United
States, and the judgment of that court is reversed.
The case is stated in the opinion of the Court.
Page 118 U. S. 560
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a writ of error to the Supreme Court of Illinois. It was
argued here at the last term of this Court. The case was tried in
the court of original jurisdiction on an agreed statement of facts.
This agreement is short, and is here inserted in full:
"For the purposes of the trial of said cause, and to save the
making of proof therein, it is hereby agreed on the part of the
defendant that the allegations in the first count of the
declaration are true, except that part of said count which avers
that the same proportionate discrimination was made in the
transportation of said property -- oil-cake and corn -- in the
State of Illinois that was made between Peoria and the City of New
York, and Gilman and New York City, which averment is not admitted
because defendant claims that it is an inference from the fact that
the rates charged in each case of said transportation
Page 118 U. S. 561
of oil-cake and corn were through rates, but it is admitted that
said averment is a proper one."
The first count in the declaration which is referred to in this
memorandum of agreement charged that the Wabash, St. Louis and
Pacific Railway Company had, in violation of a statute of the State
of Illinois, been guilty of an unjust discrimination in its rates
or charges of toll and compensation for the transportation of
freight. The specific allegation is that the railroad company
charged Elder & McKinney for transporting 26,000 pounds of
goods and chattels from Peoria, in the State of Illinois, to New
York City, the sum of $39, being at the rate of 15 cents per
hundred pounds for said carload; and that on the same day, they
agreed to carry and transport for Isaac Bailey and F. O. Swannell
another carload of goods and chattels from Gilman, in the State of
Illinois, to said City of New York, for which they charged the sum
of $65, being at the rate of 25 cents per hundred pounds. And it is
alleged that the carload transported for Elder & McKinney was
carried eighty-six miles further in the State of Illinois than the
other carload of the same weight. This freight being of the same
class in both instances, and carried over the same road except as
to the difference in the distance, it is obvious that a
discrimination against Bailey & Swannell was made in the
charges against them, as compared with those against Elder &
McKinney, and this is true whether we regard the charge for the
whole distance from the terminal points in Illinois to New York
City or the proportionate charge for the haul within the State of
Illinois.
The language of the statute which is supposed to be violated by
this transaction is to be found in c. 114 of the Revised Statutes
of Illinois, § 112. It is there enacted that if any railroad
corporation shall charge, collect, or receive for the
transportation of any passenger or freight of any description upon
its railroad for any distance within the state the same or a
greater amount of toll or compensation than is at the same time
charged, collected, or received for the transportation in the same
direction of any passenger or like quantity of freight of
Page 118 U. S. 562
the same class over a greater distance of the same road, all
such discriminating rates, charges, collections, or receipts,
whether made directly or by means of rebate, drawback, or other
shift or evasion, shall be deemed and taken against any such
railroad corporation as
prima facie evidence of unjust
discrimination prohibited by the provisions of this act. The
statute further provides a penalty of not over $5,000 for that
offense, and also that the party aggrieved shall have a right to
recover three times the amount of damages sustained, with costs and
attorney's fees.
To this declaration the railroad company demurred. The demurrer
was sustained by the lower court in Illinois and judgment rendered
for the defendant. This, however, was reversed by the supreme court
of that state, and, on the case's being remanded, the demurrer was
overruled and the defendant pleaded, among other things, that the
rates of toll charged in the declaration were charged and collected
for services rendered under an agreement and undertaking to
transport freight from Gilman, in the State of Illinois, to New
York City, in the State of New York, and that in such undertaking
and agreement, the portion of the services rendered or to be
rendered within the State of Illinois was not apportioned separate
from such entire service; that the action is founded solely upon
the supposed authority of an Act of the Legislature of the State of
Illinois approved April 7, 1871, and that said act does not control
or affect or relate to undertakings to transport freight from the
State of Illinois to the State of New York, which falls within the
operation, and is wholly controlled by the terms of the third
clause of Section 8 of Article I of the Constitution of the United
States, which the defendant sets up and relies upon as a complete
defense and protection in said action.
This question of whether the statute of Illinois, as applied to
the case in hand, is in violation of the Constitution of the United
States, as set forth in the plea, was also raised on the trial by a
request of the defendant, the railroad company, that the court
should hold certain propositions of law on the same subject, which
propositions are as follows:
"The court holds as law that, as the tolls or rates of
compensation
Page 118 U. S. 563
charged and collected by the defendant in the instance in
question were for transportation service rendered in transporting
freight from a point in the State of Illinois to a point in the
State of New York, under an entire contract or undertaking to
transport such freight the whole distance between such points, that
the Act of the General Assembly of the State of Illinois approved
May 2, 1873, entitled"
"An act to prevent extortion and unjust discrimination in the
rates charged for the transportation of passengers and freight on
railroads in this state, and to punish the same, and prescribe a
mode of procedure and rules of evidence in relation thereto, and to
repeal an act entitled 'An act to prevent unjust discrimination and
extortion in the rates to be charged by the different railroads in
the state for the transportation of freight on said roads.'
approved April 7, 1871,"
"does not apply to or control such tolls and charges, nor can
the defendant be held liable in this action for the penalties
prescribed by said act. The court further holds as law that said
act in relation to extortion and unjust discrimination cannot apply
to transportation service rendered partly without the state and
consisting of the transportation of freight from within the State
of Illinois to the State of New York, and that said act cannot
operate beyond the limits of the State of Illinois. The court
further holds as matter of law that the transportation in question
falls within the proper description of 'commerce among the states,'
and as such can only be regulated by the Congress of the United
States under the terms of the third clause of Section 8 of Article
I of the Constitution of the United States."
All of these propositions were denied by the court, and judgment
rendered against the defendant, which judgment was affirmed by the
supreme court on appeal.
The matter thus presented as to the controlling influence of the
Constitution of the United States over this ligislation of the
State of Illinois raises the question which confers jurisdiction on
this Court. Although the precise point presented by this case may
not have been heretofore decided by this Court, the general subject
of the power of the state legislatures to
Page 118 U. S. 564
regulate taxes, fares, and tolls for passengers and
transportation of freight over railroads within their limits has
been very much considered recently --
State
Freight Tax Case, 15 Wall. 232;
Munn v.
Illinois, 94 U. S. 133;
Chicago, Burlington & Quincy Railroad v. Iowa,
94 U. S. 155;
Peik v. Northwestern Railway, 94 U. S.
164;
Stone v. Farmers' Loan & Trust Co.,
116 U. S. 307;
Gloucester Ferry Co. v. Pennsylvania, 114
U. S. 204;
Pickard v. Pullman Southern Car Co.,
117 U. S. 34, and
the question how far such regulations, made by the states and under
state authority, are valid or void as they may affect the
transportation of goods through more than one state, in one voyage
is not entirely new here. The Supreme Court of Illinois, in the
case now before us, conceding that each of these contracts was in
itself a unit, and that the pay received by the Illinois railroad
company was the compensation for the entire transportation from the
point of departure in the State of Illinois to the City of New
York, holds that, while the statute of Illinois is inoperative upon
that part of the contract which has reference to the transportation
outside of the state, it is binding and effectual as to so much of
the transportation as was within the limits of the State of
Illinois,
People v. Wabash, St. Louis & Pacific
Railway, 104 Ill. 476, and, undertaking for itself to
apportion the rates charged over the whole route, decides that the
contract and the receipt of the money for so much of it as was
performed within the State of Illinois violate the statute of the
state on that subject.
If the Illinois statute could be construed to apply exclusively
to contracts for a carriage which begin and end within the state,
disconnected from a continuous transportation through or into other
states, there does not seem to be any difficulty in holding it to
be valid. For instance, a contract might be made to carry goods for
a certain price from Cairo to Chicago, or from Chicago to Alton.
The charges for these might be within the competency of the
Illinois Legislature to regulate. The reason for this is that both
the charge and the actual transportation in such cases are
exclusively confined to the limits of the territory of the state,
and are not commerce
Page 118 U. S. 565
among the states, or interstate commerce, but are exclusively
commerce within the state. So far, therefore, as this class of
transportation, as an element of commerce, is affected by the
statute under consideration, it is not subject to the
constitutional provision concerning commerce among the states. It
has often been held in this Court, and there can be no doubt about
it, that there is a commerce wholly within the state which is not
subject to the constitutional provision; and the distinction
between commerce among the states and the other class of commerce
between the citizens of a single state, and conducted within its
limits exclusively, is one which has been fully recognized in this
Court, although it may not be always easy, where the lines of these
classes approach each other, to distinguish between the one and the
other.
The Daniel
Ball, 10 Wall. 557;
Hall v. De Cuir,
95 U. S. 485;
Telegraph Co. v. Texas, 105 U. S. 460.
It might admit of question whether the statute of Illinois now
under consideration was designed by its framers to affect any other
class of transportation than that which begins and ends within the
limits of the state. The Supreme Court of Illinois having in this
case given an interpretation which makes it apply to what we
understand to be commerce among the states, although the contract
was made within the State of Illinois, and a part of its
performance was within the same state, we are bound in this Court
to accept that construction. It becomes, therefore, necessary to
inquire whether the charge exacted from the shippers in this case
was a charge for interstate transportation or was susceptible of a
division which would allow so much of it to attach to commerce
strictly within the state, and so much more to commerce in other
states. The transportation which is the subject matter of the
contract being the point on which the decision of the case must
rest, was it a transportation limited to the State of Illinois, or
was it a transportation covering all the lines between Gilman in
the one case, and Peoria in the other, in the State of Illinois,
and the City of New York, in the State of New York?
The Supreme Court of Illinois does not place its judgment
Page 118 U. S. 566
in the present case on the ground that the transportation and
the charge are exclusively state commerce, but, conceding that it
may be a case of commerce among the states or interstate commerce
which Congress would have the right to regulate if it had attempted
to do so, argues that this statute of Illinois belongs to that
class of commercial regulations which may be established by the
laws of a state until Congress shall have exercised its power on
that subject, and to this proposition a large part of the argument
of the attorney general of the state before us is devoted, although
he earnestly insists that the statute of Illinois, which is the
foundation of this action, is not a regulation of commerce within
the meaning of the Constitution of the United States. In support of
its view of the subject, the Supreme Court of Illinois cites the
cases of
Munn v. Illinois, Chicago, Burlington & Quincy
Railroad v. Iowa, and
Peik v. Chicago & Northwestern
Railway, above referred to. It cannot be denied that the
general language of the Court in these cases upon the power of
Congress to regulate commerce may be susceptible of the meaning
which the Illinois court places upon it.
In
Munn v. Illinois, 94 U. S. 133,
the language of this Court upon that subject is as follows:
"We come now to consider the effect upon this statute of the
power of Congress to regulate commerce. It was very properly said
in Case of
State Tax on Railway Gross
Receipts, 15 Wall. 293, that 'it is not everything
that affects commerce that amounts to a regulation of it, within
the meaning of the Constitution.' The warehouses of these
plaintiffs in error are situated, and their business carried on,
exclusively within the limits of the State of Illinois. They are
used as instruments by those engaged in state as well as those
engaged in interstate commerce, but they are no more necessarily a
part of commerce itself than the dray or cart by which, but for
them, grain would be transferred from one railroad station to
another. Incidentally they may become connected with interstate
commerce, but not necessarily so. Their regulation is a thing of
domestic concern, and, certainly, until Congress acts in reference
to their interstate relations, the
Page 118 U. S. 567
state may exercise all the powers of government over them, even
though in so doing it may indirectly operate upon commerce outside
its immediate jurisdiction. We do not say that a case may not arise
in which it will be found that a state, under the form of
regulating its own affairs, has encroached upon the exclusive
domain of Congress in respect to interstate commerce, but we do say
that upon the facts as they are represented to us in this record,
that has not been done."
In the case of
Chicago, Burlington & Quincy Railroad v.
Iowa, 94 U. S. 155, which
directly related to railroad transportation, the language is as
follows:
"The objection that the statute complained of is void because it
amounts to a regulation of commerce among the states has been
sufficiently considered in the case of
Munn v. Illinois.
This road, like the warehouse in that case, is situated within the
limits of a single state. Its business is carried on there, and its
regulation is a matter of domestic concern. It is employed in state
as well as in interstate commerce, and until Congress acts, the
state must be permitted to adopt such rules and regulations as may
be necessary for the promotion of the general welfare of the people
within its own jurisdiction, even though in doing so those without
may be indirectly affected."
But the strongest language used by this Court in these cases is
to be found in
Peik v. Chicago & Northwestern Railway,
94 U. S. 164, as
follows:
"As to the effect of the statute as a regulation of interstate
commerce. The law is confined to state commerce, or such interstate
commerce as directly affects the people of Wisconsin. Until
Congress acts in reference to the relations of this company to
interstate commerce, it is certainly within the power of Wisconsin
to regulate its fares, etc., so far as they are of domestic
concern. With the people of Wisconsin this company has domestic
relations. Incidentally these may reach beyond the state. But
certainly, until Congress undertakes to legislate for those who are
without the state, Wisconsin may provide for those within, even
though it may indirectly affect those without. "
Page 118 U. S. 568
These extracts show that the question of the right of the state
to regulate the rates of fares and tolls on railroads, and how far
that right was affected by the commerce clause of the Constitution
of the United States, was presented to the Court in those cases.
And it must be admitted that in a general way, the court treated
the cases then before it as belonging to that class of regulations
of commerce which, like pilotage, bridging navigable rivers, and
many others, could be acted upon by the states, in the absence of
any legislation by Congress on the same subject. By the slightest
attention to the matter it will be readily seen that the
circumstances under which a bridge may be authorized across a
navigable stream within the limits of a state for the use of a
public highway, and the local rules which shall govern the conduct
of the pilots of each of the varying harbors of the coasts of the
United States, depend upon principles far more limited in their
application and importance than those which should regulate the
transportation of persons and property across the half or the whole
of the continent, over the territories of half a dozen states,
through which they are carried without change of car or breaking
bulk.
Of the members of the Court who concurred in those opinions,
there being two dissentients, but three remain, and the writer of
this opinion is one of the three. He is prepared to take his share
of the responsibility for the language used in those opinions,
including the extracts above presented. He does not feel called
upon to say whether those extracts justify the decision of the
Illinois court in the present case. It will be seen from the
opinions themselves, and from the arguments of counsel presented in
the reports, that the question did not receive any very elaborate
consideration, either in the opinions of the Court or in the
arguments of counsel, and the question how far a charge made for a
continuous transportation over several states, which included a
state whose laws were in question, may be divided into separate
charges for each state in enforcing the power of the state to
regulate the fares of its railroads was evidently not fully
considered. These three cases, with others concerning the same
subject, were argued at
Page 118 U. S. 569
the same time by able counsel, and in relation to the different
laws affecting the subject, of the States of Illinois, Iowa.
Wisconsin, and Minnesota, the main question in all the cases being
the right of the state to establish any limitation upon the power
of the railroad companies to fix the price at which they would
carry passengers and freight. It was strenuously denied, and very
confidently, by all the railroad companies that any legislative
body whatever had a right to limit the tolls and charges to be made
by the carrying companies for transportation. And the great
question to be decided, and which was decided, and which was argued
in all those cases was the right of the state within which a
railroad company did business to regulate or limit the amount of
any of these traffic charges. The importance of that question
overshadowed all others, and the case of
Munn v. Illinois
was selected by the Court as the most appropriate one in which to
give its opinions on that subject because that case presented the
question of a private citizen or unincorporated partnership engaged
in the warehousing business in Chicago, free from any claim of
right or contract under an act of incorporation of any state
whatever, and free from the question of continuous transportation
through several states. And in that case, the Court was presented
with the question, which it decided, whether anyone engaged in a
public business, in which all the public had a right to require his
service, could be regulated by acts of the legislature in the
exercise of this public function and public duty so far as to limit
the amount of charges that should be made for such services.
The railroad companies set up another defense, apart from
denying the general right of the legislature to regulate
transportation charges -- namely that in their charters from the
states they each had a contract, express or implied, that they
might regulate and establish their own fares and rates of
transportation. These two questions were of primary importance, and
though it is true that, as incidental or auxiliary to these, the
question of the exclusive right of Congress to make such
regulations of charges as any legislative power had the right to
make, to the exclusion of the states, was presented, it
Page 118 U. S. 570
received but little attention at the hands of the Court and was
passed over with the remarks in the opinions of the Court which
have been cited.
The case of
State Freight
Tax, 15 Wall. 232, which was decided only four
years before these cases, held an act of the Legislature of
Pennsylvania void as being in conflict with the commerce clause of
the Constitution of the United States which levied a tax upon all
freight carried through the state by any railroad company, or into
it from any other state, or out of it into any other state, and
valid as to all freight the carriage of which was begun and ended
within the limits of the state, because the former was a regulation
of interstate commerce and the latter was a commerce solely within
the state which it had a right to regulate. And the question now
under consideration -- whether these statutes were of a class which
the legislatures of the states could enact in the absence of any
act of Congress on the subject -- was considered and decided in the
negative.
It is impossible to see any distinction, in its effect upon
commerce of either class, between a statute which regulates the
charges for transportation and a statute which levies a tax for the
benefit of the state upon the same transportation, and in fact the
judgment of the Court in the
State Freight Tax Case rested
upon the ground that the tax was always added to the cost of
transportation, and thus was a tax, in effect, upon the privilege
of carrying the goods through the state. It is also very difficult
to believe that the Court consciously intended to overrule the
first of these cases without any reference to it in the
opinion.
At the very next term of the Court after the delivery of these
opinions, the case of
Hall v. De Cuir, 95 U. S.
485, was decided, in which the same point was considered
in reference to a statute of the state of Louisiana which attempted
to regulate the carriage of passengers upon railroads, steamboats,
and other public conveyances, and which provided that no
regulations of any companies engaged in that business should make
any discrimination on account of race or color. This statute, by
its terms, was limited to persons engaged in that class of
Page 118 U. S. 571
business within the state, as is the one now under
consideration, and the case presented under the statute was that of
a person of color who took passage from New Orleans for Hermitage,
both places being within the limits of the state of Louisiana, and
was refused accomodations in the general cabin on account of her
color. In regard to this, the Court declared that
"for the purposes of this case, we must treat the Act of
Louisiana of February 23, 1869, as requiring those engaged in
interstate commerce to give all persons traveling in that state,
upon the public conveyances employed in such business, equal rights
and privileges in all parts of the conveyance, without distinction
or discrimination on account of race or color. . . . We have
nothing whatever to do with it as a regulation of internal
commerce, or as affecting anything else than commerce among the
states."
And, speaking in reference to the right of the states in certain
classes of interstate commerce to pass laws regulating them, the
opinion says:
"The line which separates the powers of the states from this
exclusive power of Congress is not always distinctly marked, and
oftentimes it is not easy to determine on which side a particular
case belongs. Judges not unfrequently differ in their reasons for a
decision in which they concur. Under such circumstances, it would
be a useless task to undertake to fix an arbitrary rule by which
the line must in all cases be located. It is far better to leave a
matter of such delicacy to be settled in each case upon a view of
the particular rights involved; but we think it may safely be said
that state legislation which seeks to impose a direct burden upon
interstate commerce or to interfere directly with its freedom does
encroach upon the exclusive power of Congress. The statute now
under consideration in our opinion occupies that position. It does
not act upon the business through the local instruments to be
employed after coming within the state, but directly upon the
business as it comes into the state from without or goes out from
within. While it purports only to control the carrier when engaged
within the state, it must necessarily influence his conduct to some
extent in the management of his
Page 118 U. S. 572
business throughout his entire voyage. . . . It was to meet just
such a case that the commercial clause in the Constitution was
adopted. The River Mississippi passes through or along the borders
of ten different states, and its tributaries reach many more. The
commerce upon these waters is immense and its regulation clearly a
matter of national concern. If each state was at liberty to
regulate the conduct of carriers while within its jurisdiction, the
confusion likely to follow could not but be productive of great
inconvenience and unnecessary hardship. Each state could provide
for its own passengers and regulate the transportation of its own
freight, regardless of the interests of others. Nay, more, it could
prescribe rules by which the carrier must be governed within the
state in respect to passengers and property brought from without.
On one side of the river or its tributaries he might be required to
observe one set of rules, and on the other another. Commerce cannot
flourish in the midst of such embarrassments."
The applicability of this language to the case now under
consideration, of a continuous transportation of goods from New
York to central Illinois or from the latter to New York, is
obvious, and it is not easy to see how any distinction can be made.
Whatever may be the instrumentalities by which this transportation
from the one point to the other is effected, it is but one voyage
-- as much so as that of the steamboat on the Mississippi River. It
is not the railroads themselves that are regulated by this act of
the Illinois Legislature so much as the charge for transportation,
and, in language just cited, if each one of the states through
whose territories these goods are transported can fix its own rules
for prices, for modes of transit, for times and modes of delivery,
and all the other incidents of transportation to which the word
"regulation" can be applied, it is readily seen that the
embarrassments upon interstate transportation, as an element of
interstate commerce, might be too oppressive to be submitted to.
"It was," in the language of the Court cited above, "to meet just
such a case that the commerce clause of the Constitution was
adopted." It cannot be too strongly insisted upon that the right of
continuous
Page 118 U. S. 573
transportation, from one end of the country to the other, is
essential in modern times to that freedom of commerce, from the
restraints which the states might choose to impose upon it, that
the commerce clause was intended to secure. This clause, giving to
Congress the power to regulate commerce among the states and with
foreign nations, as this Court has said before, was among the most
important of the subjects which prompted the formation of the
Constitution.
Cook v. Pennsylvania, 97 U.
S. 574;
Brown v.
Maryland, 12 Wheat. 446. And it would be a very
feeble and almost useless provision, but poorly adapted to secure
the entire freedom of commerce among the states which was deemed
essential to a more perfect union by the framers of the
Constitution, if, at every stage of the transportation of goods and
chattels through the country, the state within whose limits a part
of this transportation must be done could impose regulations
concerning the price, compensation, or taxation, or any other
restrictive regulation interfering with and seriously embarrassing
this commerce.
The argument on this subject can never be better stated than it
is by Chief Justice Marshall in
Gibbons
v. Ogden, 9 Wheat. 195,
22 U. S. 196. He
there demonstrates that commerce among the states, like commerce
with foreign nations, is necessarily a commerce which crosses state
lines and extends into the states, and the power of Congress to
regulate it exists wherever that commerce is found. Speaking of
navigation as an element of commerce, which it is only as a means
of transportation, now largely superseded by railroads, he
says:
"The power of Congress, then, comprehends navigation within the
limits of every state in the Union, so far as that navigation may
be in any manner connected with 'commerce with foreign nations, or
among the several states, or with the Indian tribes.' It may, of
consequence, pass the jurisdictional line of New York, and act upon
the very waters [the Hudson river] to which the prohibition now
under consideration applies."
P.
22 U. S. 197. So
the same power may pass the line of the State of Illinois, and act
upon its restriction upon the right of transportation extending
over several states, including that one.
In the case of
Telegraph Co. v. Texas, 105 U.
S. 460,
105 U. S.
465,
Page 118 U. S. 574
the Court held that "a telegraph company occupies the same
relation to commerce as a carrier of messages that a railroad
company does as a carrier of goods," and that "both companies are
instruments of commerce, and their business is commerce itself."
And relying upon the case of
State Freight
Tax, 15 Wall. 232, already referred to, the Court
said that a tax by the state of Texas upon
all messages
carried within its borders was forbidden by the commerce clause of
the Constitution as being a tax upon commerce among the states, and
observed that
"the tax is the same on every message sent, and because it is
sent, without regard to the distance carried or the price charged.
. . . Clearly if a fixed tax for every two thousand pounds of
freight carried is a tax on the freight, or for every measured ton
of a vessel a tax on tonnage, or for every passenger carried a tax
on the passenger, or for the sale of goods a tax on the goods, this
must be a tax on the messages. As such, so far as it operates on
private messages sent out of the state, it is a regulation of
foreign and interstate commerce, and beyond the power of the state.
That is fully established by the cases already cited."
In the case of
Welton v. Missouri, 91 U. S.
275, it was said:
"It will not be denied that that portion of commerce with
foreign countries and between the states which consists in the
transportation and exchange of commodities is of national
importance, and admits and requires uniformity of regulation. The
very object of investing this power in the general government was
to insure this uniformity against discriminating state
legislation."
And in
County of Mobile v. Kimball, 102 U.
S. 691, the same idea is very clearly stated in the
following language:
"Commerce with foreign countries and among the states, strictly
considered, consists in intercourse and traffic, including in these
terms navigation, and the transportation and transit of persons and
property, as well as the purchase, sale, and exchange of
commodities. For the regulation of commerce as thus defined there
can be only one system of rules, applicable alike to the whole
country, and the authority which can act for the whole country can
alone adopt such a system. Action upon
Page 118 U. S. 575
it by separate states is not, therefore, permissible. Language
affirming the exclusiveness of the grant of power over commerce as
thus defined may not be inaccurate, when it would be so if applied
to legislation upon subjects which are merely auxiliary to
commerce."
In the case of
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 204,
decided two years ago, the Court declared without dissent that
"It needs no argument to show that the commerce with foreign
nations and between the states, which consists in the
transportation of persons and property between them, is a subject
of national character, and requires uniformity of regulation."
And still later, in the case of
Pickard v. Pullman Southern
Car Co., 117 U. S. 34, the
whole subject is very fully reexamined and a tax of the state of
Tennessee upon sleeping cars of that company, which were used in
carrying passengers through the state, and into it and out of it,
was held void as a regulation of commerce among the states.
The case of
Stone v. Farmers' Loan & Trust Co.,
116 U. S. 307,
argued at the same term as the present, while it does not decide
the latter, evidently does not support the construction placed by
the Supreme Court of Illinois upon the case of
Munn v.
Illinois, and the other cases on which the Court relies.
We must, therefore, hold that it is not and never has been the
deliberate opinion of a majority of this Court that a statute of a
state which attempts to regulate the fares and charges by railroad
companies within its limits, for a transportation which constitutes
a part of commerce among the states, is a valid law.
Let us see precisely what is the degree of interference with
transportation of property or persons from one state to another
which this statute proposes. A citizen of New York has goods which
he desires to have transported by the railroad companies from that
city to the interior of the State of Illinois. A continuous line of
rail over which a car loaded with these goods can be carried, and
is carried habitually, connects the place of shipment with the
place of delivery. He undertakes to make a contract with a person
engaged in the carrying business at the end of this route from
whence the goods are to
Page 118 U. S. 576
start, and he is told by the carrier:
"I am free to make a fair and reasonable contract for this
carriage to the line of the State of Illinois, but when the car
which carries these goods is to cross the line of that state,
pursuing at the same time this continuous track, I am met by a law
of Illinois which forbids me to make a free contract concerning
this transportation within that state and subjects me to certain
rules by which I am to be governed as to the charges which the same
railroad company in Illinois may make, or has made, with reference
to other persons and other places of delivery."
So that while that carrier might be willing to carry these goods
from the City of New York to the City of Peoria at the rate of
fifteen cents per hundred pounds, he is not permitted to do so
because the Illinois railroad company has already charged at the
rage of twenty-five cents per hundred pounds for carriage to
Gilman, in Illinois, which is eighty-six miles shorter than the
distance to Peoria.
So also, in the present case, the owner of corn, the principal
product of the country, desiring to transport it from Peoria, in
Illinois, to New York, finds a railroad company willing to do this
at the rate of fifteen cents per hundred pounds for a carload, but
is compelled to pay at the rate of twenty-five cents per hundred
pounds, because the railroad company has received from a person
residing at Gilman twenty-five cents per hundred pounds for the
transportation of a carload of the same class of freight over the
same line of road from Gilman to New York. This is the result of
the statute of Illinois, in its endeavor to prevent unjust
discrimination, as construed by the supreme court of that state.
The effect of it is that whatever may be the rate of transportation
per mile charged by the railroad company from Gilman to Sheldon, a
distance of twenty-three miles, in which the loading and the
unloading of the freight is the largest expense incurred by the
railroad company, the same rate per mile must be charged from
Peoria to the City of New York.
The obvious injustice of such a rule as this, which railroad
companies are by heavy penalties compelled to conform to, in regard
to commerce among the states, when applied to transportation
Page 118 U. S. 577
which includes Illinois in a long line of carriage through
several states, shows the value of the constitutional provision
which confides the power of regulating interstate commerce to the
Congress of the United States, whose enlarged view of the interests
of all the states, and of the railroads concerned, better fits it
to establish just and equitable rules.
Of the justice or propriety of the principle which lies at the
foundation of the Illinois statute it is not the province of this
Court to speak. As restricted to a transportation which begins and
ends within the limits of the state, it may be very just and
equitable, and it certainly is the province of the state
legislature to determine that question; but when it is attempted to
apply to transportation through an entire series of states a
principle of this kind, and each one of the states shall attempt to
establish its own rates of transportation, its own methods to
prevent discrimination in rates, or to permit it, the deleterious
influence upon the freedom of commerce among the states, and upon
the transit of goods through those states, cannot be overestimated.
That this species of regulation is one which must be, if
established at all, of a general and national character, and cannot
be safely and wisely remitted to local rules and local regulations,
we think is clear from what has already been said. And if it be a
regulation of commerce, as we think we have demonstrated it is and
as the Illinois court concedes it to be, it must be of that
national character, and the regulation can only appropriately exist
by general rules and principles, which demand that it should be
done by the Congress of the United States under the commerce clause
of the Constitution.
The judgment of the Supreme Court of Illinois is therefore
Reversed, and the case remanded to that court for further
proceedings in conformity with this opinion.
MR. JUSTICE BRADLEY, with whom concurred THE CHIEF JUSTICE and
MR. JUSTICE GRAY, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE GRAY, and myself dissent from the
opinion and judgment of the Court in this case, and I am authorized
to state the reasons upon which our dissent is founded.
Page 118 U. S. 578
The Wabash, St. Louis and Pacific Railway Company, an Illinois
corporation, plaintiff in error, was sued by the State of Illinois
to recover a penalty for the breach of its laws, passed "to prevent
extortion and unjust discrimination in the rates charged for the
transportation of passengers and freight on railroads in the
state." The law sued on was originally passed in 1871, and revised
in 1873, and the material portions of its most important section
are in the following words, to-wit:
"If any such railroad corporation shall charge, collect, or
receive for the transportation of any passenger or freight of any
description upon its railroad for any distance within this state
the same or a greater amount of toll or compensation than is at the
same time charged, collected, or received for the transportation in
the same direction of any passenger or like quantity of freight of
the same class over a greater distance of the same railroad, . . .
or if it shall charge, collect, or receive from any person or
persons for the use and transportation of any railroad car or cars
upon its railroad for any distance the same or a greater amount of
toll or compensation than it at the same time charged, collected,
or received from any other person or persons for the use and
transportation of any railroad car of the same class or number for
a like purpose being transported in the same direction over a
greater distance of the same railroad, . . . all such
discriminating rates, charges, collections, or receipts, whether
made directly or by means of rebate, draw-back, or other shift or
evasion, shall be deemed and taken against any such railroad
corporation as
prima facie evidence of unjust
discrimination prohibited by the provisions of this act, . . .
provided however that nothing herein contained shall be so
construed as to prevent railroad corporations from issuing
commutation, excursion, or thousand-mile tickets as the same are
now issued by such corporations."
A penalty of not less than $1,000 and not more than $5,000 for
the first offense is imposed for the violation of the law, and it
was for this penalty that the company was sued in the Ford County
Circuit Court.
The declaration alleged in substance that the company
Page 118 U. S. 579
charged certain parties fifteen cents per hundred pounds for
carrying a load of freight from Peoria, in the State of Illinois,
to New York, one hundred and nine miles of the distance being in
Illinois, while at the same time it charged certain other parties
twenty-five cents per hundred pounds for carrying a like load of
the same class of freight from Gilman, also in the State of
Illinois, to New York, twenty-three miles of the distance being in
Illinois, both places being on the line of the road. This
allegation was substantially admitted, and judgment was finally
rendered in favor of the state, and was sustained by the supreme
court of the state, to which the present writ of error was
directed.
The main point insisted on by the railway company is its defense
was that the law on which the action was founded is
unconstitutional in its application to their case, as being a
regulation of interstate commerce. They also contended that a gross
charge from Peoria or Gilman to New York was no evidence of any
particular charge within the State of Illinois.
The construction given to the law by the Supreme Court of
Illinois is to be reviewed by us on a writ of error brought for the
purpose of questioning its constitutionality. That construction is
clearly exhibited in the following announcement of the opinion of
that court when the case was brought before it a second time. The
court said:
"We see no reason to depart from the conclusion reached in this
case when it was here before.
See People v. Wabash, St. L.
& P. Railway Co., 104 Ill. 476. But to avoid
misapprehension, we deem it desirable to state explicitly that we
disclaim any idea that Illinois has authority to regulate commerce
in any other state. We understand and simply hold that in the
absence of anything showing to the contrary, a single and entire
contract to carry for a gross sum from Gilman, in this state, to
the City of New York, implies necessarily that that sum is charged
proportionately for the carriage on every part of that distance,
and that a single and entire contract to carry for a gross sum from
Peoria, in this state, to the City of New York, implies the same
thing, and that therefore, when it is shown that there is charged
for carriage upon the same line less
Page 118 U. S. 580
from Peoria to New York (the greater distance) than from Gilman
to New York (the less distance), and nothing is shown to the effect
that such inequality in charge is all for carriage entirely beyond
the limits of this state, a
prima facie case is made out
of unjust discrimination under our statute occurring within this
state. We hold that the excess in the charge for the less distance
presumably affects every part of the line of carriage between
Gilman and the state line proportionately with the balance of the
line. The judgment is affirmed."
Wabash, St. Louis & Pacific Railway v. Illinois,
105 Ill. 236.
We have no doubt that this view of the presumed equal
distribution of the charge to every part of the route is correct.
If one-tenth, or any other proportion, of the whole route of
transportation was in Illinois, the clear presumption is, if
nothing be shown to the contrary (as nothing was shown), that the
like proportion of the whole charge was made for the transportation
in that state.
The principal question in this case, therefore, is whether, in
the absence of Congressional legislation, a state legislature has
the power to regulate the charges made by the railroads of the
state for transporting goods and passengers to and from places
within the state when such goods or passengers are brought from or
carried to points without the state, and are therefore in course of
transportation from another state or to another state. It is
contended that, as such transportation is commerce between or among
different states, the power does not exist. The majority of the
Court so hold. We feel obliged to dissent from that opinion. We
think that the state does not lose its power to regulate the
charges of its own railroads in its own territory simply because
the goods or persons transported have been brought from or are
destined to a point beyond the state in another state.
The case before us is not embarrassed by any allegation of a
contract between the state and the company; it is a question of the
power to regulate, pure and simple. The state has never contracted
away, or attempted to contract away, this power.
Page 118 U. S. 581
It is also unembarrassed by any federal legislation on the
subject. No one disputes that Congress might, if it saw fit, under
its power to regulate commerce among the several states, regulate
the matter under consideration; but it has not done so. The
question rests solely and entirely upon the power of the state,
when unrestrained by any contract or by any action of the
legislative department of the United States. Does it follow, then,
that because Congress has the power to regulate this matter (though
it has not exercised that power), therefore the state is divested
of all power of regulation? That is the question before us.
We had supposed that this question was concluded by the previous
decisions of this Court that all local arrangements and regulations
respecting highways, turnpikes, railroads, bridges, canals,
ferries, dams, and wharves within the state, their construction and
repair, and the charges to be made for their use, though materially
affecting commerce, both internal and external, and thereby
incidentally operating to a certain extent as regulations of
interstate commerce, were within the power and jurisdiction of the
several states. That is still our opinion. It is almost a work of
supererogation to refer to the cases. They are legion. A few only
will be selected and referred to.
The first great case on the subject was that of
Willson v.
Blackbird Creek Co., 2 Pet. 245,
27 U. S. 252,
where the State of Delaware had authorized a dam in a navigable
tidewater creek of that state communicating with Delaware Bay, and
Chief Justice Marshall, delivering the unanimous opinion of the
Court, said:
"The value of the property on its banks must be enhanced by
excluding the water from the marsh, and the health of the
inhabitants probably improved. Measures calculated to produce these
objects, provided they do not come into collision with the powers
of the general government, are undoubtedly within those which are
reserved to the states. But the measure authorized by this act
stops a navigable creek, and must be supposed to abridge the rights
of those who have been accustomed to use it. But this abridgment,
unless it comes in conflict with the Constitution or a law of the
United States,
Page 118 U. S. 582
is an affair between the government of Delaware and its citizens
of which this Court can take no cognizance. The counsel for the
plaintiff in error insist that it comes in conflict with the power
of the United States 'to regulate commerce with foreign nations and
among the several states.' If Congress had passed any act which
bore upon the case, any act in execution of the power to regulate
commerce, the object of which was to control state legislation over
those small navigable creeks into which the tide flows, and which
abound throughout the lower country of the middle and southern
states, we should feel not much difficulty in saying that a state
law coming in conflict with such act would be void. But Congress
has passed no such act. The repugnancy of the law of Delaware to
the Constitution is placed entirely on its repugnancy to the power
to regulate commerce with foreign nations and among the several
states -- a power which has not been so exercised as to affect the
question. We do not think the act empowering the Blackbird Creek
Marsh Company to place a dam across the creek can, under all the
circumstances of the case, be considered as repugnant to the power
to regulate commerce in its dormant state, or as being in conflict
with any law passed on the subject."
This case was, in all things, affirmed by the later case of
Gilman v. City of
Philadelphia, 3 Wall. 713. The Legislature of
Pennsylvania authorized the City of Philadelphia to erect a
permanent bridge across the Schuylkill River (a navigable water) at
the foot of Chestnut Street. It was sought to restrain the erection
of this bridge on the same grounds which had been urged in the
Blackbird Creek Case, but the circuit court of the United
States refused to interfere, and dismissed a bill for an
injunction. The decision was sustained by this Court, which held
that it was for Congress to determine when its full power to
regulate commerce should be brought into activity, and as to the
regulations and sanctions which should be provided, and that until
the dormant power of the Constitution is awakened and made
effective by appropriate legislation, the reserved power of the
states is plenary, and its exercise in good faith cannot be made
the subject of review by this Court.
Page 118 U. S. 583
These principles are reaffirmed in the still more recent case of
Escanaba Company v. Chicago, 107 U.
S. 678. In that case, the authorities of Chicago, under
the powers conferred upon them by the Legislature of Illinois
regulated the times for opening and closing the draws in the
bridges crossing the Chicago River so as to accommodate the local
travel across them at certain times and to allow the passage of
vessels at others. This operated as a regulation of the commerce on
the river, including interstate and foreign, as well as domestic,
commerce. But, there being no legislation of Congress to the
contrary, this Court held that the power was constitutionally
exercised. Commerce was affected; commerce was even incidentally
regulated; but the jurisdiction of the state, and of the city
acting under state authority, was unhesitatingly recognized by the
Court. MR. JUSTICE FIELD, delivering the opinion of the Court,
said:
"The Chicago River and its branches must therefore be deemed
navigable waters of the United States over which Congress, under
its commercial power, may exercise control to the extent necessary
to protect, preserve, and improve the free navigation. But the
states have full power to regulate within their limits matters of
internal police, including in that general designation whatever
will promote the peace, comfort, convenience, and prosperity of the
people. This power embraces the construction of roads, canals, and
bridges, and the establishment of ferries, and it can generally be
exercised more wisely by the states than by a distant authority. .
. . Nowhere could the power to control the bridges in that city,
their construction, form, and strength, and the size of their
draws, and the manner and times of using them be better vested than
with the state, or the authority of the city upon whom it has
devolved that duty. When its power is exercised so as to
unnecessarily obstruct the navigation of the river or its branches,
Congress may interfere and remove the obstruction, . . . but until
Congress acts on the subject, the power of the state over bridges
across its navigable streams is plenary."
The doctrines announced in these cases apply not only to dams in
and bridges over navigable streams, but to all structures
Page 118 U. S. 584
and appliances in a state which may incidentally interfere with
commerce, or which may be erected or created for the furtherance of
commerce, whether by water or by land. It is matter of common
knowledge that from the beginning of the government, the states
have exercised almost exclusive control over roads, bridges,
ferries, wharves, and harbors. No one has doubted their right to do
so. It is recognized in the great case of
Gibbons v.
Ogden, 9 Wheat. 1, where Chief Justice Marshall,
after enumerating some of the powers reserved to the states,
says:
"They form a portion of that immense mass of legislation which
embraces everything within the territory of a state not surrendered
to the general government, all which can be most advantageously
exercised by the states themselves. Inspection laws, quarantine
laws, health laws of every description, as well as laws for
regulating the internal commerce of a state and those which respect
turnpike roads, ferries, etc., are component parts of this
mass."
And he adds (what is very pertinent to this discussion):
"No direct general power over these objects is granted to
Congress, and consequently they remain subject to state
legislation. If the legislative power of the Union can reach them,
it must be for national purposes; it must be where the power is
expressly given for a special purpose, or is clearly incidental to
some power which is expressly given. "
The case of
Transportation Co. v. Parkersburg,
107 U. S. 691,
related to wharves. The City of Parkersburg had built certain
wharves for the accommodation of vessels, principally steamboats,
navigating the Ohio River. The transportation company, being the
owner of several steamboats plying on that river, complained of the
wharfage charges as being extortionate and an unconstitutional
interference with the commerce of the Ohio River. It was shown that
the charges were imposed by authority derived from the state laws,
and we held that until Congress interfered, the charge for wharfage
was a matter of state law and of state jurisdiction. We then
said:
"Wharves, levees, and landing places are essential to commerce
by water no less than a navigable channel and a clear river. But
they are attached to the land; they are private
Page 118 U. S. 585
property, real estate, and they are primarily, at least, subject
to the local state laws. . . . Until Congress has acted, the courts
of the United States cannot assume control over the subject as a
matter of federal cognizance. It is Congress, and not the judicial
department, to which the Constitution has given the power to
regulate commerce with foreign nations and among the several
states. The courts can never take the initiative on the
subject."
There is a class of subjects, it is true, pertaining to
interstate and foreign commerce which require general and uniform
rules for the whole country, so as to obviate unjust
discriminations against any part, and in respect of which local
regulations made by the states would be repugnant to the power
vested in Congress, and therefore unconstitutional; but there are
other subjects of local character and interest which not only admit
of, but are generally best regulated by, state authority. This
distinction is pointed out and enforced in the case of
Cooley v. Port Wardens of
Philadelphia, 12 How. 299. In that case, it was
held that the pilotage regulations of the different ports of the
country belong to the latter class, and are susceptible of state
regulation. This case has been approved in several subsequent
decisions.
Gilman v. Philadelphia, ubi supra; 73 U.
S. Nevada, 6 Wall. 35,
73 U. S. 42;
Ex Parte
NcNeill, 13 Wall. 236;
Osborne v.
Mobile, 16 Wall. 482;
Railroad Co. v.
Fuller, 17 Wall. 569;
The
Lottawanna, 21 Wall. 581,
88 U. S. 582;
Packet Co. v. Keokuk, 95 U. S. 88;
Pound v. Turck, 95 U. S. 462;
Hall v. De Cuir, 95 U. S. 488;
Wilson v. McNamee, 102 U. S. 575;
Mobile Co. v. Kimball, 102 U. S. 698;
Packet Co. v. Catlettsburg, 105
U. S. 562.
It is hardly necessary to argue that in reference to this rule,
railroads, canals, turnpikes, bridges, ferries, and wharves belong
to the category of local subjects, local means, and local aids of
commercial intercourse. Congress may establish national roads,
canals, and bridges, it is true, but we speak of those (hitherto
the most part) which are constructed and established under state
authority, and in reference to these it seems to us very clear
that, in the absence of congressional
Page 118 U. S. 586
legislation to the contrary, they are not only susceptible of
state regulation, but properly amenable to it, irrespective of
other considerations to which we shall refer.
The highways in a state are the highways of the state.
Convenient ways and means of intercommunication are the first
evidence of the civilization of a people. The highways of a country
are not of private, but of public, institution and regulation. In
modern times, it is true, government is in the habit, in some
countries, of letting out the construction of important highways,
requiring a large expenditure of capital, to agents, generally
corporate bodies created for the purpose, and giving to them the
right of taxing those who travel or transport goods thereon as a
means of obtaining compensation for their outlay. But a
superintending power over the highways, and the charges imposed
upon the public for their use, always remains in the government.
This is not only its indefeasible right, but is necessary for the
protection of the people against extortion and abuse. These
positions we deem to be incontrovertible. Indeed, they are adjudged
law in the decisions of this Court. Railroads and railroad
corporations are in this category.
Now, since every railroad may be, and generally is, a medium of
transportation for interstate commerce, and affects that commerce;
and since the charges of fare and freight for such transportation
affect and incidentally regulate that commerce; and since the
railroad could not be built, and the charges upon it could not be
exacted, without authority from the state, it follows as a
necessary consequence that the state, in the exercise of its
undoubted functions and sovereignty, does, in the establishment and
regulation of railroads, to a certain and a very material extent,
not only do that which affects, but incidentally regulates,
commerce. It does so by the very act of authorizing the
construction of railroads, and the collection of fares and freights
thereon. No one doubts its powers to do this. The very being of the
plaintiffs in error, the very existence of their railroad, the very
power they exercise of charging fares and freights, are all derived
from the state. And yet, according to the argument of the
plaintiffs in error, pursued to its legitimate consequences, the
act of the state in doing all this ought to be
Page 118 U. S. 587
regarded as null and void because it operates as a regulation of
commerce among the states. Not only does the right to charge fares
and freights at all come to a railroad company from the grant of
the state, but the amount of such charges is also regulated by the
state law, either by the charter of the company, or by legislative
regulations, or by the general law that the charges shall be
reasonable, and that is state law, and not United States law. Where
else but from the laws of the state does the railroad company get
its right to charge any fares or freight at all? And since its
being, its franchises, its powers, its road, its right to charge
all come from the state and are the creation of state law, how can
it be contended that the state has no power of regulation over
those charges and over the conduct of the company in the
transaction of its business while acting within the state and using
its railroad lying within the bounds of the state?
Omne majus
continet in se minus. If the state created the company and its
franchises, it surely may make regulations as to the manner of
using them.
It is evident from what has been said that the dealing of a
state with a railroad corporation of its own creation, in
authorizing the construction and maintenance of its road and the
charge of fares and freights thereon, is, in its purpose, a matter
entirely aside from that kind of regulation of commerce which is
obnoxious to the provisions of the Constitution. There is not a
particle of doubt that it was the right of the state to prescribe
the route of the plaintiff's road -- it might be in a direction
north and south, or east and west; it might be by one town, or by a
different town. It was its right to prescribe how the road should
be built; what means of locomotion should be used on it; how fast
the trains might run; at what stations they should stop. It was its
right to prescribe its charges, and to declare that they should be
uniform, or, if not uniform, how otherwise. This certainly was the
right of the state at the inception of the charter, and every one
of these things would most materially affect commerce, not only
internal, but external; and yet not one of them would be repugnant
to the power of Congress to regulate commerce within the meaning of
the Constitution.
Page 118 U. S. 588
Suppose the original charter of the railroad company in this
case had contained precisely the provision against discriminating
charges which is contained in the general law now complained of --
could the company disregard the conditions of its charter, and defy
the authority of the state? We think it clear that it could not.
But if the state had the power to impose such a condition in the
original charter, it must have the same power at any time
afterwards, for the exercise of the power in the original grant
would be just as repugnant to the Constitution, and no more, as the
exercise of it at a subsequent period. The regulation of charges is
just as unconstitutional in a charter as in a general law.
To sum up the matter in a word, we hold it to be a sound
proposition of law that the making of railroads and regulating the
charges for their use is not such a regulation of commerce as to be
in the remotest degree repugnant to any power given to Congress by
the Constitution, so long as that power is dormant and has not been
exercised by Congress. They affect commerce, they incidentally
regulate it, but they are acts in relation to the subject which the
state has a perfect right to do, subject always to the controlling
power of Congress over the regulation of commerce when Congress
sees fit to act.
It is only for the sake of convenience that the state lets out
its railroads to private corporations. It might construct them
itself. Suppose it had done so in this case -- could not the state
have instituted such rates of freight and fare as it pleased?
Certainly it could. It might have made them uniform, as the present
law requires them to be, or it might have made them discriminative
between different places, and no one could have called it to
account. Instructions in the form of laws, or in the form of orders
made by a state board, might have been given to the superintendents
of the road, acting in behalf of the state, to adopt the one course
or the other. Could the agents of the state, acting under such
instructions, have been interfered with by the judicial department
on the ground of unconstitutionality? Certainly not; certainly not
unless discriminations were made to the prejudice of the citizens
of other states, or of the products of other states.
Page 118 U. S. 589
The State of New York built and owns the Erie Canal. Did any
court ever attempt to control that state in its regulation of tolls
on the canal, even though made for the purpose of affecting the
relative movement of goods on the canal and the railroads of the
state? We presume that no such attempt was ever made, or would be
successful if made.
It is true, and this we concede, that if the laws of a state
discriminate adversely to the citizens or products of other states,
whether the railroads belong to the state or to private
corporations, the courts might interfere on the ground of the
repugnancy of such regulations to that freedom of commerce which
Congress by its nonaction on the subject has indicated shall exist.
This has been frequently decided.
Welton v. Missouri,
91 U. S. 282;
Brown v. Houston, 114 U. S. 622,
114 U. S. 631,
and cases there cited. But no such discrimination is made by the
law in question.
We also concede that any taxes, duties, or impositions upon
interstate commerce -- that is, upon the commerce itself, carried
on over the railroads of the state -- would interfere with the
freedom of such commerce and would be repugnant to the presumed
intention of Congress. This has frequently been decided.
Crandall v.
Nevada, 6 Wall. 35;
State
Freight Tax Cases, 15 Wall. 232;
Coe v.
Errol, 116 U. S. 517, and
the authorities cited in the latter case. But the present is not a
case of that kind and has no semblance of likeness to it. All such
discriminations, taxes, duties, and impositions are direct
regulations and burdens upon the commerce itself, and come fairly
within the exclusive prerogatives of Congress.
The distinction between such burdens and charges for service
rendered is well explained in the case of
Gloucester Ferry Co.
v. Pennsylvania, 114 U. S. 196,
114 U. S. 217,
where MR. JUSTICE FIELD, delivering the unanimous opinion of the
court in relation to ferries says:
"It is true that from the earliest period in the history of the
government, the states have authorized and regulated ferries not
only over waters entirely within their limits, but over waters
separating them, and it may be conceded that in many respects the
states can more advantageously manage such interstate ferries than
the general government,
Page 118 U. S. 590
and that the privilege of keeping a ferry, with a right to take
toll for passengers and freight, 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. Still the fact remains that such a ferry
is a means, and a necessary means, of commercial intercourse
between the states bordering on their dividing waters, and it must
therefore be conducted without the imposition by the states of
taxes or other burdens upon the commerce between them. Freedom from
such impositions does not, of course, imply exemption from
reasonable charges, as compensation for the carriage of persons in
the way of tolls or fares, or from the ordinary taxation to which
other property is subjected, any more than like freedom of
transpiration on land implies such exemption. Reasonable charges
for the use of property, either on water or land, are not an
interference with the freedom of transportation between the states
secured under the commercial power of Congress. . . . That freedom
implies exemption from other charges than such as are imposed by
way of compensation for the use of the property employed, or for
the facilities afforded for its use, or as ordinary taxes upon the
value of property."
This subject in many of its aspects was considered by this Court
in the case of
Railroad Company v.
Maryland, 21 Wall. 456. In that case, in a charter
for constructing and operating a railroad from Baltimore to
Washington, authority was given to the company to charge two
dollars and a half for each passenger, and it was stipulated that
the company should pay to the state one-fifth of the whole amount
received for the transportation of passengers on the road. The
company sued for a return of the sums paid on this account as being
exacted by an unconstitutional law. It was insisted that the
reservation was equivalent to the imposition of a tax on
passengers, and therefore a restriction of free intercourse and
traffic between different states, much of the travel being that of
passengers coming from or going to other states. The argument that
the reservation of one-fifth of the passage money necessitated an
increased charge upon the passenger
Page 118 U. S. 591
was met by this Court as follows:
"Had the state built the road in question, it might to this day
have charged two dollars and fifty cents for carrying a passenger
between Baltimore and Washington. So might the railroad company,
under authority from the state, if it saw fit to do so. This
unlimited right of the state to charge, or to authorize others to
charge, toll, freight, or fare for transportation on its roads,
canals, and railroads, arises from the simple fact that they are
its own works, or constructed under its authority. It gives them
being. It has a right to exact compensation for their use. It has a
discretion as to the amount of that compensation. That discretion
is a legislative, a sovereign discretion, and in its very nature is
unrestricted and uncontrolled. . . . The exercise of this power on
the part of a state is very different from the imposition of a tax
or duty upon the movements or operations of commerce between the
states. Such an imposition, whether relating to persons or goods,
we have decided the states cannot make, because it would be a
regulation of commerce between the states in a matter in which
uniformity is essential to the rights of all, and therefore
requiring the exclusive legislation of Congress.
Crandall v.
Nevada, 6 Wall. 42;
State Freight Tax
Cases, 15 Wall. 232,
82 U. S.
279. It is a tax because of the transportation, and is
therefore virtually a tax on the transportation, and not in any
sense a compensation therefor, or for the franchise enjoyed by the
corporation that performs it. . . . The question is practically
reduced to this: what amounts to a regulation of commerce between
the states? This is often difficult to determine. In view, however,
of the very plenary powers which a state has always been conceded
to have over its own territory, its highways, its franchises, and
its corporations, we cannot regard the stipulation in question as
amounting to either of these unconstitutional acts. It is not
within the category of such acts. It may incidentally affect
transportation, it is true, but so does every burden or tax imposed
on corporations or persons engaged in that business. Such burdens,
however, are imposed
diverso intuitu, and in the exercise
of an undoubted power. "
Page 118 U. S. 592
But it is needless to multiply citations which establish or
recognize the principles which govern the present case. The very
point in question has been already expressly decided by this Court.
We refer to the case of
Peik v. Chicago & Northwestern
Railway, 94 U. S. 164. That
was a bill filed by the bondholders of the company to restrain the
Railroad Commissioners of Wisconsin from enforcing a law of that
state limiting the rate of charges for transporting passengers and
freights on the railroads of the state. The bill, among other
things, complained that the classes of freight established by § 3
of the act were different from those established by the laws of
Illinois, Iowa, and Minnesota for the transportation of freight
upon the railroads of the same company in those states, and
rendered it practically impossible to carry on the business of
transporting freight from Wisconsin to either to those states, and
that the 18th section (limiting the rates) was a regulation of
interstate commerce. The act excepted from its operation the case
of freight or passengers carried from one state to another state
entirely through or across the State of Wisconsin. It did operate
on freight and passengers carried from another state to any point
within the State of Wisconsin, or from any such point to another
state. The Chief Justice, in delivering the opinion of the Court,
states the precise question to be decided as follows:
"These suits present the single question of the power of the
Legislature of Wisconsin to provide by law for a maximum of charge
by the Chicago and Northwestern Railway Company for fare and
freight upon the transportation of persons and property carried
within the state, or taken up outside the state and brought within
it, or taken up inside and carried without."
He then, after disposing of certain other questions relating to
the consolidation of the company with an Illinois company, disposes
of the main question as follows:
"As to the effect of the statute as a regulation of interstate
commerce. The law is confined to state commerce, or such interstate
commerce as directly affects the people of Wisconsin. Until
Congress acts in reference to the relations of this company to
interstate commerce, it is certainly within the power of Wisconsin
to regulate
Page 118 U. S. 593
its fares, etc., so far as they are of domestic concern. With
the people of Wisconsin this company has domestic relations.
Incidentally, these may reach beyond the state. But certainly,
until Congress undertakes to legislate for those who are without
the state, Wisconsin may provide for those within, even though it
may indirectly affect those without."
The law was sustained and the bill of complaint was
dismissed.
We do not see how this case can be distinguished from that now
under consideration. The fact that in
Peik's Case there
was a classification of freights and a limitation of charges, and
in the present case a prohibition of discrimination in the charges,
is a distinction without a difference. The opinion is brief, it is
true, but all the principles involved in it were so fully discussed
in the cases immediately preceding, beginning with that of
Munn
v. Illinois, that no extended discussion of
Peik's
Case was deemed necessary. All the justices who concurred in
the opinion were entirely satisfied with it. The cases were all
argued at the same time or in reference to each other, and were
considered together. But there stands the judgment of the Court,
and, in our apprehension, the judgment in the present case is
directly opposed to it.
We have omitted to cite a number of cases corroborating the
views we have expressed. The case of
State Tax
on Railway Gross Receipts, 15 Wall. 284, is
weighted with arguments and considerations in this direction. We
would also refer to the cases of
Osborne v.
Mobile, 16 Wall. 482;
Railroad
Co. v. Fuller, 17 Wall. 560;
Railroad
Commission Cases, 116 U. S. 307,
116 U. S.
334-335.
It is supposed that the decision in
Hall v. De Cuir,
95 U. S. 485,
supports the contention of the plaintiffs in error. We think not.
What was that case? A statute of Louisiana, as construed by its
courts, prohibited those engaged in the business of carrying
passengers in that state (including those engaged in interstate
commerce) from making any discrimination on account of race or
color in the use of the accommodations of their conveyances -- a
direct regulation of commerce, and within the reason of the tax
cases before referred to. A steamer which regularly plied between
New Orleans and
Page 118 U. S. 594
Vicksburg had a cabin specially set apart for white persons, and
De Cuir, a colored person, being refused admission to that cabin,
sued for damages. We held that the law (as above suggested) was a
direct regulation of commerce and a burden upon it. It compelled
the steamboat proprietor to place colored persons traveling from
one place to another in Louisiana in the cabin set apart for white
persons, many of whom were bound to another state, and therefore in
its operation was a regulation of interstate commerce. It was
against the rule that in the absence of action by Congress,
commerce must remain free and untrammeled. By that rule, the
proprietor of the vessel was at liberty to adopt such reasonable
rules and regulations for the disposition and comfort of passengers
upon his boat, while pursuing its voyage, as seemed to him most for
the interest of all concerned. The statute took away from him this
power so long as he was within Louisiana. We especially
distinguished the case from those of
Munn v. Illinois, Peik v.
Railroad Co., and the cognate cases, as belonging to a
different category and governed by different considerations; and
the difference between them seems to us very apparent.
The Chief Justice, in delivering the opinion of the Court,
said:
"There can be no doubt but that exclusive power has been
conferred upon Congress in respect to the regulation of commerce
among the several states. The difficulty has never been as to the
existence of this power, but as what is to be deemed an
encroachment upon it, for, as has been often said, 'legislation may
in a great variety of ways affect commerce and persons engaged in
it without constituting a regulation of it within the meaning of
the Constitution.'
Sherlock v. Alling, 93 U. S.
103;
State Tax on Railway Gross
Receipts, 15 Wall. 284. Thus in
Munn v.
Illinois, 94 U. S. 113, it was decided that
a state might regulate the charges of public warehouses, and in
Chicago, Burlington & Quincy Railroad v. Iowa,
94 U. S.
155, of railroads situate entirely within the state,
even though those engaged in commerce among the states might
sometimes use the warehouses or the railroads in the prosecution of
their business."
After referring to the cases of dams and bridges over navigable
waters, and of turnpikes and ferries, the
Page 118 U. S. 595
Chief Justice continued:
"By such statutes, the states regulate, as a matter of domestic
concern, the instruments of commerce situated wholly within their
own jurisdictions and over which they have exclusive governmental
control, except when employed in interstate commerce. As they can
only be used in the state, their regulation for all purposes may
properly be assumed by the state until Congress acts in reference
to their foreign or interstate relations. When Congress does act,
the state laws are superseded only to the extent that they affect
commerce outside the state as it comes within the state."
He then added:
"But we think it may safely be said that state legislation which
seeks to impose a direct burden upon interstate commerce or to
interfere directly with its freedom does encroach upon the
exclusive power of Congress. The statute now under consideration,
in our opinion, occupies that position. It does not act upon the
business through the local instruments to be employed after coming
within the state, but directly upon the business as it comes into
the state from without or goes out from within."
The distinction here taken seems to us sound, and to distinguish
the present case from that of
De Cuir. In the
Peik case and others of like character, the state
regulated the charges made upon an instrument of commerce (a
railroad) situated within the state and under its jurisdiction,
such charges being made by virtue of the state's authority. In the
De Cuir case, it attempted, as the law operated, to
regulate the manner of carrying passengers on an instrument of
commerce having no fixed location, but plying on navigable waters
within and without the stat -- in other words, it attempted to
regulate interstate commerce itself, directly, in a matter in which
it had no special prerogative to legislate.
Other cases are referred to by the plaintiffs in error in
support of their contention, but we think that no case can be found
which is not clearly distinguishable from the present on some or
one of the grounds already referred to.
The inconveniences which it has been supposed in argument would
follow from the execution of the laws of Illinois we think have
been greatly exaggerated. But if it should be found to present any
real difficulty in the modes of transacting
Page 118 U. S. 596
business on through lines, it is always in the power of Congress
to make such reasonable regulations as the interests of interstate
commerce may demand, without denuding the states of their just
powers over their own roads and their own corporations.