Lake Shore Railway Company v. Ohio ex rel. Lawrence/Dissent Shiras

Mr. Justice SHIRAS filed the following dissenting opinion:

The constitution of the United States, in its eighth section, confers upon congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes, and to establish post offices and post roads.

In pursuance of this power, congress, on June 15, 1866, enacted that 'every railroad company in the United States, whose road is operated by steam, its successors and assigns, is hereby authorized to carry upon and over its road, boats, bridges and ferries, all passengers, troops, government supplies, mails, freight and property on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportation of the same to the place of destination.' Rev. St. § 5258.

By the act of February 4, 1887, entitled 'An act to regulate commerce' (24 Stat. 379), congress created the interstate commerce commission, and enacted that the provisions of that act should 'apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management or arrangement, for a continuous carriage or shipment from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States * *  * ,' and that it should be unlawful for any common carrier, subject to the provisions of the act, to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedules, carriage in different cars, or by other means or devices, the carriage of freight from being continuous from the place of shipment to the place of destination.

It was said by this court in California v. Central Pac. R. Co., 127 U.S. 39. 8 Sup. Ct. 1080, that:

'It cannot at the present day be doubted that congress, under the power to regulate commerce among the several states, as well as to provide for postal accommodations and military exigencies, had authority to pass such laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce. Without authority in congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce. This power in former times was exerted to a very limited extent, the Cumberland or National road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water, and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed, and led to the conclusion that congress has plenary power over the whole subject. Of course, the authority of congress over the territories of the United States, and its power to grant franchises exercisable therein, are, and ever have been, undoubted. But the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing states as well as territories, and employing the agency of state as well as federal corporations.'

In the case of Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U.S. 184, 16 Sup. Ct. 700, the validity of the act of February 4, 1887, was sustained; and its provisions were held applicable even to a railroad company whose entire road was within the limits of the state of its creation, when, by agreeing to receive goods by virtue of foreign through bills of lading, and to participate in through rates and charges, it became part of a continuous line of transportation.

By an act approved February 23, 1869, the state of Louisiana forbade common carriers of passengers to make discrimination on account of race or color. A person of color took passage upon a steamboat plying between New Orleans and Vicksburg, in the state of Mississippi, and was carried from New Orleans to her place of destination within Louisiana, and being refused accommodations, on account of her color, in the cabin specially set apart for white persons, brought an action in the district court for the parish of New Orleans, under the provisions of the act above referred to. By way of defense it was insisted that the statute was void, in respect to the matter complained of, because, as to the business of the steamboat, it was an attempt to regulate commerce between the states, and therefore in conflict with the constitution of the United States. The state court held that the statute was valid, and the case was brought to this court, where the judgment of the state court was reversed. The reasoning of the court is so closely applicable to the case before us that we quote a considerable part of the opinion:

'We think it may be safely 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 come 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 business throughout his entire voyage. His disposition of passengers taken up and put down within the state, or taken up within to be carried without, cannot but affect in a greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the state must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced.

'It was to meet just such a case that the commercial clause in the consitution 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 hardships. 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 connot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a state line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and, to secure, it, congress, which is untrammeled by state lines, has been invested with the exclusive legislative power of determining what such regulations shall be. If this statute can be enforced against those engaged in interstate commerce, it may as well be against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on board, would be compelled to carry all (white and colored) in the same cabin during his passage down the river, or be subject to an action for damages, exemplary as well as actual, by any one who felt himself aggrieved because he had been excluded on account of his color.

'This power of regulation may be exercised without legislation as well as with it. By refraining from action, congress, in effect, adopts as its own regulations those which the common law, or the civil law where that prevails, has provided for the government of each business, and those which the states, in the regulation of their domestic concerns, have established affecting commerce, but not regulating it, within the meaning of the constitution. In fact, congressional legislation is only necessary to cure defects in existing laws, as they are discovered, and to adapt such laws to new developments of trade. As was said by Mr. Justice Field, speaking for the court in Welton v. Missouri, 91 U.S. 282: 'Inaction by congress is equivalent to a declaration that interstate commerce shall remain free and untrammeled.' Applying that principle to the circumstances of this case, congressional inaction left the captain of the steamboat to adopt such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him most for the interest of all concerned. The statute under which this suit is brought, as construed by the state court, seeks to take away from him that power, so long as he is within Louisiana; and while recognizing to the fullest extent the principle which sustains a statute, unless its unconstitutionality is clearly established, we think this statute, to the extent that it requir § those engaged in the transportation of passengers among the states to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional and void. If the public good requires such legislation, it must come from congress, and not from the states.' Hall v. De Cuir, 95 U.S. 485.

I am not able to think that this decision is satisfactorily disposed of, in the principal opinion, by citing it, and then dismissing it with the observation that it is not perceived that there is any conflict between it and that now made.

The state of Illinois 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 pensation 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 road, all such discriminating rates, charges, collections, or receipts, whether made directly, or by the means of rebate, drawback, or other shift or evasion, shall be deemed and taken against any such railroad company as prima facie evidence of unjust discrimination prohibited by the provisions of the act. The act further provided a penalty of not over $5,000, and also that the party aggrieved should have a right to recover three times the amount of demages sustained, with costs and attorney's fees. Rev. St. Ill. c. 114, § 126.

An action to recover penalties under this statute was brought by Illinois against the Wabash, St. Louis & Pacific Railway Company, an Illinois corporation, in which the allegations were that the railroad company had charged Elder & McKinney for transporting goods from Peoria, in the state of Illinois, to New York City, at the rate of 15 cents per 100 pounds for a carload; that on the same day the railroad company had charged one Bailey for transporting similar goods from Gilman to New York City at the rate of 25 cents per 100 pounds per car load; that the car load for Elder & McKinney was carried 86 miles further in the state of Illinois than the other car load of the same weight; that this freight being of the same class in both instances, and over the same road, except as to the difference in the distance, made a discrimination forbidden by the statute, whether the charge was regarded for the whole distance from the terminal point in Illinois to New York City, or the proportionate charge for the haul within the state of Illinois. Judgment went against the company in the courts of the state of Illinois, and the case was brought to this court.

It was here strenuously contended that, 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 and passengers are brought from, or carried to, points without the state, and are therefore in the course of transportation from any state, or to another state. And of that view were several justices of this court, who, in the opinion filed on their behalf, cited the very cases that are cited and relied on in the majority opinion in the present case.

But the court did not so hold, and its reasoning is so plainly applicable to the question now before us that it may well be quoted at some length.

After having reviewed some of the previous cases, and having quoted those passages in the opinion of the court in Hall v. Du Cuir, 95 U.S. 485, which have hereinbefore been quoted, Mr. Justice Miller, giving the opinion of the court, proceeded as follows:

'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 the 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 terms and modes of delivery, and all the other incidents of transportation to which the word 'regulation' can be applied, it is readily seen that the embarrassments upon interstate transportation, as an element of interstate commerce, might be too oppressive to be submitted to. 'It was,' in the language of the court cited above, 'to meet just such a case that the commerce clause of the constitution was adopted.'

'It cannot be too strongly insisted upon that the right of continuous transportation from one end of the country to the other is essential, in modern times, to that freedom of commerce from the restraints which the states might choose to impose upon it, that the commerce clause was intended to secure. This caluse, giving to congress the power to reglate 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 sericusly embarrassing this commerce.

'The argument on this subject can never be better stated than it is by Chief Justice Marshall in Gibbons v. Ogden. 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.' So the same power may pass the line of the state of Illinois, and act upon its restriction upon the right of transportation extending over several states, including that one.

'In the case of Telegraph Co. v. Texas, 105 U.S. 460, the court held that a telegraph company occupies the same relation to commerce, as a carrier of messages, that a railroad company does as a carrier of goods, and that both companies are instruments of commerce, and their business is commerce itself. * *  * 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 nations 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 Mobile Co. v. Kimball, 102 U.S. 702, the same idea is very clearly stated in the following language: Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce, as thus defined, there can be only one system of rules, applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate states is not, therefore, permissible. Language affirming the exclusiveness of the grant of power over commerce, as thus defined, may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxilliary to commerce.' * *  * We must therefore hold that it is not, and never has been, the deliberate opinion of a majority of this court that the 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 the transportation of property or person 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 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 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 reilroad company has already charged at the rate 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 car load; but he 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 car load of the same class of freight over the same line of road from Gilman to New York. Thus, 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 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 compelled by heavy penalties to conform to, in regard to commerce among the states, when applied to transportation 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, betters fits it to establish just and equitable rates.

'Of the justice of property 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 the Illinois court concedes 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.' Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, 7 Sup. Ct. 4.

This case, so recent, and so elaborately considered, has not received adequate attention in the opinion of the court in the present case.

The legislature of Illinois, by the statute of February 10, 1851, incorporated the Illinois Central Railroad Company, and empowered it to construct and maintain a railroad, with one or more tracks, from the southern terminus of the Illinois & Michigan Canal to a point at the city of Cairo, with the same to the city of Chicago, on Lake Michigan, and also a branch via the city of Galena to a point on the Mississippi river opposite the town of Dubupue, in the state of Iowa. The Chicago, St. Louis & New Orleans Railroad Company, which was a consolidated company, formed under the legislatures of the states of Louisiana, Mississippi, Tennessee, and Kentucky, whose line extended from New Orleans to the Ohio river, built a railroad bridge across the Ohio river to low-water mark on the Illinois side, to which the jurisdiction of the state of Kentucky extended. The north end of this bridge was at a part of Cairo about two miles north of the station of the Illinois Central Railroad Company in that city, and the peculiar conformation of the land and water made it impracticable to put the bridge nearer the junction of the Ohio and Mississippi rivers. By this bridge the road of the Illinois Central Railroad Company was thereby connected with that of the Chicago, St. Louis & New Orleans Railroad Company. Thereafter the Illinois Central Railroad Company put on a daily fast-mail train, to gun from Chicago to New Orleans, carrying passengers as well as the United States mail, not going to or stopping at its station in Cairo, but local trains adequate to afford accommodations for passengers to or from Cairo were run daily on that part of the railroad between the bridge junction and Cairo. By a subsequent act of 1889 it was enacted by the legislature of Illinois that 'every railroad corporation shall cause its passenger trains to stop upon its arrival at each station, advertised by such corporation as a place for receiving and discharging passengers upon and from such trains, a sufficient length of time to receive and let off such passengers with safety: provided, all regular passengers trains shall a stop a sufficient length o time, at the railroad station of county seats, to receive and let off passengers with safety.'

In April, 1891, a petition was filed in the circuit court for Alexander county, in the state of Illinois, by the county attorney in behalf of the state, alleging that the Illinois Central Railroad Company ran its southbound fast-mail train through the city of Cairo, two miles north of its station in that city, and over a bridge across the station in that city, and over road with other roads south of that river, without stopping at its station in Cairo, and praying for a writ of mandamus to compel it to cause all its passenger trains coming into Cairo to be brought down to that station, and there stopped a sufficient length of time to receive and let off passengers with safety.

The railroad company contended that the statute did not require its fast-mail train to be run to and stopped at its station in Cairo, and that the statute was contrary to the constitution of the United States, as interfering with interstate commerce, and with the carrying of the United States mail. The court granted the writ of mandamus, and the railroad company appealed to the supreme court of the state, which affirmed the judgment, and held that the statute of Illinois concerning the stoppage of fast-mail train to be taken to cause its fast-mail train to be taken into its station at Cairo, and be stopped there long enough to receive and let off passengers with safety, and that statute, so construed, was not an unconstitutional interference with interstate commerce, or with the carrying of the United States mails. The case was brought to this court, where the judgment of the supreme court of Illinois was reversed in a unanimous opinion delivered by Mr. Justice Gray. Illinois Cent. R. Co. v. Illinois, 163 U.S. 142, 16 Sup. Ct. 1096. After recting several statutes of Illinois and of congress, particularly the act of June 15, 1866, wherein congress, for the declared purpose of facilitating commerce among the several states, and the postal and military communications of the United States, authorized every railroad company in the United States whose road was operated by steam to carry over its road, bridges, and ferries, as well passengers and freight, as government mails, troops, and supplies, from one state to another, and to connect, in any state authoritizing it to do so, with roads of other states, so as to form a continuous line of transportation, the court proceeded to say:

'The effect of the statute of Illinois, as construed and applied by the supreme court of the state, is to require a fast-mail train, carrying interstate passengers and the United States mails from Chicago, in the state of Illinois, to places south of the Ohio river, over an interstate highway established by authority of congress, to delay the transportation of such passengers and mail, by turning aside from the direct interstate route, and running to a station three miles and a half away from a point on that route, and back again to the same point, and thus traveling seven miles which form no part of its course, before proceeding on its way, and to do this for the purpose of discharging and receiving passengers at that station, for the interstate travel to and from which, as is admitted in this case, the railroad company furnishes other and ample accommodation. This court is unanimously of opinion that this requirement is an unconstitutional hindrance and obstruction of interstate commerce, and of the passage of the mails of the United States. Upon the state of facts presented by this record, the duties of the Illinois Central Railroad Company were not confined to those which it owed to the state of Illinois under the charter of the company and other laws of the state, but included distinct duties imposed upon the corporation by the constitution and laws of the United States.

'The state may doubtless compel the railroad company to perform the duty imposed by its charter of carrying passengers and goods between its termini within the state. But so long, at least, as that duty is adequately performed by the company, the state cannot, under the guise of compelling its performance, interfere with the performance of paramount duties to which the company has been subjected by the constitution and laws of the United States.

'The state may make reasonable regulations to secure the safety of passengers, even on interstate trains, while within its borders. But the state can do nothing which will directly burden or impede the interstate traffic of the company, or impair the usefulness of its facilities for such traffic.'

Beyond the bare allegation that the case of Illinois Cent. R. Co. v. Illinois is not inconsistent with the views expressed in the present case, no attempt is made to compare or reconcil the principles involved in the two cases. It is, indeed, said that the Ohio statute 'does not require the defendant company to turn any of its trains from their direct interstate route'; and the remark of the court in the Illinois case is cited, in which it was said, 'The question whether a statute which merely required interstate railroad trains, without going out of their course, to stop at county seats, would be within the constitutional power of the state, is not presented, and cannot be decided, upon this record.' Reference is also made to the case of Gladson v. Minnesota, 166 U.S. 427, 17 Sup. Ct. 627, as removing any doubt as to the scope of the decision in the Illinois case.

But an examination of that case will show that no question was presented or decided as to the power of a state to compel interstate railroad trains to stop at all county seats through which they might pass. On the contrary, the court was careful to say (distinguishing it from the Illinois case), 'But in the case at bar the train in question ran wholly within the state of Minnesota, and could have stopped at the county seat of Pine county without deviating from its course,' and to point out that the statute of Minnesota expressly provided that 'this act shall not apply to through railroad trains entering this state from any other state, or to transcontinental trains of any railroad.'

On what, then, does the court's opinion rely to distinguish the Illinois case from the present case? Merely that the through train in the one case was obliged to go out of its direct route some three or four miles, while in the other the obligation is to stop at towns through which the trains pass. But what was the reason why this court held that the Illinois statute was void as an interference with interstate commerce? Was not the delay thus caused the sole reason? And is there any difference between a delay caused by having to go a few miles out of a direct course in a single instance, and one caused by having to stop at a number of unimportant towns? Probably the excursion to the Cairo station did not detain the Illinois train more than half an hour; and it is admitted in the present case that the number of villages in Ohio through which the trains passed were 13, and that the average time required to stop a train of cars and receive and leave off passengers would be 3 minutes at each station, to say nothing of the time expended in losing and in regaining headway. Besides the delays thus caused, there would be many inconveniences to the railroad companies and to the traveling public occasioned by interfering with regulations made for the comfort and safety of through passengers.

Telegraph Co. v. James, 162 U.S. 650, 16 Sup. Ct. 934, is cited by the court as sustaining its present position. But that was a case in which the legislation of the state was of a nature that was in aid of the performance of the duty of the company that would exist in the absence of any such statute, and was in no wise obstructive of its duty as a telegraph company; and the decision of this court was expressly put upon that ground. It was pointed out in the opinion that the legislation in question could in no way affect the condu t of the company with regard to the performance of its duties in other states, and that such important particular distinguished the case from Hall v. De Cuir, 95 U.S. 485, and from Telegraph Co. v. Pendleton, 122 U.S. 347, 7 Sup. Ct. 1126.

Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 169 U.S. 311, 18 Sup. Ct. 335, is cited as adjudging that a statute of Virginia defining the obligations of carriers who accept for transportation anything directed to points of destination beyond the termini of their own lines of routes was not, in its application to interstate business, a regulation of interstate commerce, within the meaning of the constitution. But the holding in that case simply was that the statute in question did not attempt to substantially regulate or control interstate shipments, but merely established a rule of evidence, ordaining the character of proof by which a carrier may show that, although it received goods for transportation beyond its own line, nevertheless by agreement its liability was limited to its own line; that the lawful exercise by a state of its power to determine the form in which contracts may be proven does not amount to a regulation of interstate commerce. The reasoning of the court went upon the assumption that if the statute was not merely a rule of evidence, but an attempt to regulate interstate commerce, it would have been void.

Reference is also made in the principal opinion to Railway Co. v. Haber, 169 U.S. 613, 18 Sup. Ct. 488. There an attack was made on the validity of legislation of the state of Kansas subjecting any person or persons who should bring into that state any cattle liable or capable of communicating 'Texas or splenetic fever' to any domestic cattle of Kansas to a civil action for damages. In such an action it was contended on behalf of the defendant that the Kansas statutes were an interference with the freedom of interstate commerce, and also covered a field of action actually occupied by congressional legislation, known as the 'Animal Industry Act.' But it appeared that the Kansas act under which the action was brought was passed in 1885, and amended in 1891, and that congress had previously invited the authorities of the states and territories concerned to co-operate for the extinction of contagious or communicable cattle diseases. Act May 29, 1884 (23 Stat. 31). And accordingly a majority of this court held that the statutory provisions or Kansas were not inconsistent with the execution of the act of congress, but constituted an exercise of the co-operation desired. Otherwise the case would have fallen within the ruling in Railroad Co. v. Husen, 95 U.S. 465, where a similar statute of the state of Missouri, passed before the legislation of congress, and prohibiting the bringing of Texas cattle into the state of Missouri between certain times fixed by the statute, was held to be in conflict with the commerce clause of the constitution, and not a legitimate exercise of the police power of the state.

The case of Hennington v. Georgia, 163 U.S. 299, 16 Sup. Ct. 1086, demands notice. In it was involved the validity of what is known as the 'Sunday Law' of Georgia. That statute forbade the running in Georgia of railroad freight trains on the Sabbath day. The supreme court of Georgia held the statute to be a regulation of internal police, and not of commerce, and that it was not in conflict with the constitution of the United States, even as to freight trains passing through the state from and to adjacent states, and laden exclusively with freight received on board before the trains entered Georgia, and consigned to points beyond its limits.

It was shown in that case that it had been the policy of Georgia, from the earliest period of its history, to forbid all persons, under penalties, from using the Sabbath as a day of labor and for pursuing their ordinary callings, and that the legislation in question was enacted in the exercise of that policy. It was said in the opinion of the upreme court of Georgia (17 S. E. 1009), which was brought to this court for review, that, 'with respect to the selection of the particular day in each week which has been set apart by our statute as the rest day of the people, religious views and feelings may have had a controlling influence. We doubt not that they did have, and it is notable that the same views and feelings had a very powerful influence in dictating the policy of setting apart any day whatever as a day of enforced rest.' And it was said in the opinion of this court that, 'in our opinion, there is nothing in the legislation in question which suggests that it was enacted with the purpose to regulate interstate commerce, or with any other purpose than to prescribe a rule of civil duty for all who on the Sabbath day are within the territorial jurisdiction of the state.'

If, as has often been said, Christianity is part of the common law of the several states, and if the United States, in their legislative and executive departments throughout the country, since the foundation of the government, have recognized Sunday as a day of rest and freedom from compulsory labor, then such a law as that of Georgia, being based upon a public policy common to all the states, might be sustained.

But, if put upon the ground now declared in the opinion of the court in the present case, namely, as an exercise of the police power of the state, and as such paramount to the control of congress in administering the commerce clause of the constitution, then it is apparent, as I think, that the decision in Hennington v. Georgia was wrong, and the judges dissenting in that case were right.

For if, as a mere matter of local policy, one state may forbid interstate trains from running on the Christian Sabbath, an adjoining state may select the Jewish or Seventh-Day Sabbath as the day exempt from business. Another state may choose to consecrate another day of the week, in commemoration of the Latter-Day Saint and Prophet who founded such state, as the proper day for cessation from daily labor. Or, what is more probable, one or more of the states may think fit to declare that one day in seven is not a sufficient portion of the time that should be exempted from labor, and establish two or more days of rest. The destructive effect of such inconsistent and diverse legislation upon interstate commerce, carried on in trains running throughout the entire country, is too obvious to require statement or illustration.

But, whatever may be said of the decision in Hennington v. Georgia, it is, as I think, quite apparent that the Ohio legislation now under consideration cannot be reconciled with the principles and conclusions of the other cases cited.

The principal facts of this case, as found by the trial court, were: 'That the defendant company is a corporation organized under the laws of the states of New York, Pennsylvania, Ohio, Indiana, Michigan, and Illinois, and that its railroad is operated from Chicago to Buffalo. That said defendant was on and prior to October 9, 1890, and has been ever since, engaged in carrying passengers and freight over said railroad, through and into each of said several states, and is, and was then, engaged in the business of interstate commerce, both in the carriage of passengers and freight from, into, and through said states. That said defendant did not on said 9th day of October, 1890, nor shortly prior thereto, or since, up to the time of the commencement of this suit, run daily, both ways or either way, over said road, through the village of West Cieveland, three regular trains, nor more than one regular train each way, carrying passengers, which were not engaged in interstate commerce, and that did not have upon them passengers who had paid through fare, and were entitled to ride on said trains going in the one direction from the city of Chicago to the city of Buffalo, and those going in the other direction from the city of Buffalo through said states to the city of Chicago. That on or about the said day the defendant o erated but one regular train, carrying passengers each way, that was not engaged in carrying such through passengers, and said train did stop at West Cleveland on the day aforesaid for a time sufficient to receive and let off passengers. That the through trains that passed through West Cleveland on the said day were train No. 1 (limited express), with two express cars, one coach, and three sleepers, from New York to Chicago; train No. 11 (fast mail), with five United States mail cars, one coach and sleeper, from New York to Chicago. Train No. 21 had one United States mail car, two baggage and express cars, four coaches, and one sleeper, from Cleveland to Chicago. These were Western trains. That the Eastern trains were limited express No. 4, with one baggage and express car and three sleepers, from Chicago to New York; train No. 6, with one baggage and express car, three coaches, and two sleepers, from Chicago to New York; train No. 24, with one United States mail, two baggage and express cars, and seven coaches, from Chicago to Buffalo; train No. 14, with three United States mail cars and one sleeper, from Chicago to New York. That the average time of delay necessarily required to stop a train of cars, and sufficient time to receive and let off passengers, would be three minutes. And that the number of cities and villages in the state of Ohio, containing three thousand inhabitants each, through which the aforesaid trains of the defendant passed on said day, were thirteen.'

It is therefore a conceded fact in the case that the through trains which the legislature of Ohio seeks to compel to stop at prescribed villages and towns in that state are engaged in carrying on interstate commerce by the transportation of freight and passengers. It is obvious, further, that such trains are within section 5258 of the Revised Statutes of the United States, authorizing such railroad companies 'to carry upon and over its road, boats, bridges and ferries, all passengers, troops, government supplies, mails, freight and property on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportaion of the same to the place of destination.'

It is also plain that the defendant railroad company, and such of its trains as were engaged in interstate commerce are within the scope and subject to the regulations contained in the 'act to regulate commerce,' approved February 4, 1887, creating the interstate commerce commission.

The theory on which passenger trains to traverse several states or the entire continent are prepared is necessarily and widely different from that followed in making up ordinary trains to do a wayside business. There must be provision for sleeping at night and for furnishing meals. In order that each and every passenger may receive the accommodation for which he pays, the seats are sold in advance, and with reference to the number of through passengers. To enable such trains to maintain the speed demanded, the number of the cars for each train must be limited, and they are advertised and known as 'limited trains. A traveler purchasing tickets on such trains has a right to expect that he will be carried to his journey's end in the shortest possible time consistent with safety. The railroad companies compete for business by holding out that they run the fastest trains, and those most certain to arrive on time. A company which, by its own regulations or under coercion of a state legislature, stopped its through trains at every village, would soon lose its through business, to the loss of the company and the detriment of the traveling public.

Nor must the necessity of the speedy transit of the United States mails be overlooked. The government has not thought fit to build and operate railroads over which to transport its mails, but relies upon the use of roads owned by state corporations operating connecting roads. And it appears from the find ngs in this case that the defendant's through trains are engaged by the government in the transportation of its mails. The business, public and private, that depends on hourly and daily communication by mail, is enormous, and it would be intolerable if such necessary rapidity of intercourse could be controlled and trammeled by legislation like that in question.

It was pointed out in Hall v. De Cuir that, although the statute of Louisiana which sought to regulate the manner in which white and colored passengers should be carried was restricted by its own terms to the limits of the state, yet such regulation necessarily affected steamboats running through and beyond the state, because such regulation might change at every state line.

A similar but much greater inconvenience would be occasioned by attempting by state legislation to interfere with the movements of through trains. If, for instance, and as is often the case, the through trains were full of through passengers, there would be no advantage to local travel for them to stop at the way stations, for there would be no room or accommodation for the occasional passengers. Nor would that difficulty be obviated by attaching to each train coaches for use at the way stations. Such additional coaches would impede the speed of the through trains, and interfere with the business of the local trains.

In Wabash, St. L. & P. Ry. Co. v. Illinois it was said, replying to the argument that the state statute applied in terms only to transportation within the state: '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 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. * *  * As restricted to a transportation which begins and ends within the limits of the state, it (the regulation) 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 a principle of this kind, and each one of the states shall attempt to establish its own rates of transporation, its own methods to prevent discrimination in freights, 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.'

In Illinois Cent. R. Co. v. Illinois, stress was justly laid on the manifest purpose of congress to establish a railroad in the center of the continent, connecting the waters of the Great Lakes with those of the Gulf of Mexico, for the benefit of interstate commerce, as well as of the military and postal departments of the government.

A similar purpose has been manifested by congress, in the legislation hereinbefore referred to, by authorizing the formation of continuous lines of transportation, by creating a permanent commission to supervise the transactions of railroad companies so far as they affect interstate commerce, and by employing such continous and connecting roads for the transportation of its mails, troops, and supplies.

These views by no means result in justifying the railroad company defendant in failing to supply the towns and villages through which it passes with trains adequate and proper to transact local business. Such failure is not alleged in this case, nor found to be a fact by the trial court. And, if the fact were otherwise, the remedy must be found in suitable legislation or legal proceedings, not in an enactment to convert through into local trains.

Some observations may be ventured on the reasoning employed in the opinion of the court. It is said:

'In what has been said we have assumed that the statute is not in itself unreasonable. In our judgment, this assumption is not unwarranted. The requirement that a railroad company whose road is operated within the state shall cause three (each way) of its regular trains carrying passengers, if so many are run daily (Sundays excepted), to stop at any station, city, or village of three thousand inhabitants, for a time sufficient to receive and let off passengers, so far from being unreasonable, will subserve the public convenience.'

But the question of the reasonableness of a public statute is never open to the courts. It was not open even to the supreme court of the state of Ohio to say whether the act in question was reasonable or otherwise. Much less does the power of the legislature of Ohio to pass an act regulating a railroad corporation depend upon the judgment or opinion of this court as to the reasonableness of such an act.

And again: 'It was for the state of Ohio to take into consideration all the circumstances affecting passenger travel within its limits, and, as far as practicable, make such regulations as far as practicable, make such regulations as were just to all who might pass to ignore the convenience of its own people, whether traveling on this road from one point to another within the state, or from places in the state to places beyond its limits, or the convenience of those outside the state who wished to come into it, and look only to the convenience of those who desired to pass through the state without stopping.'

It was, I respectfully submit, just such action on the part of the state of Ohio, and just such reasoning made to support that action, that are forbidden by the constitution of the United States and by the decisions of this court, hereinbefore cited. If each and every state through which these interstate highways run could take into consideration all the circumstances affecting passenger travel within its limits, and make such regulations as in the opinion of its legislature are 'just and for the convenience of its own people,' then we should have restored the confusion that existed in commercial transactions before the adoption of the constitution, and thus would be overruled those numerous decisions of this court nullifying state legislation proceeding on such propositions.

'Any other view of the relations between the state and the corporation created by it would mean that the directors of the corporation could manage its affairs solely with reference to the interests of stockholders, and without taking into consideration the interests of the general public. It would mean, not only that such directors were the exclusive directors of the manner in which the corporation should discharge the duties imposed upon it in the interest of the public, but that the corporation, by reason of being engaged in interstate commerce, could build up cities and towns at the ends of its line, or at favored points, and by that means destroy or retard the growth and prosperity of intervening points. It would mean that the defendant railway company could, beyond the power of the state to prevent it, run all of its trains through the state without stopping at any city within its limits, however numerous the population of such cities.'

I am unable to perceive in the views that prevailed in the Louisiana and Illinois cases any foundation whatever for such observations. In those cases it was expressly conceded that in the regulation of commerce within the state, and in respect to the management of trains so engaged, the authority of the state legislature is supreme. And, in the argument in behalf of the defendant company in this case, a similar admission is made.

It is fallacious, as I think, to contend that the hio legislation in question was enacted to promote the public interest. That can only mean the public interest of the state of Ohio, and the reason why such legislation is pernicious and unsafe is because it is based upon a discrimination in favor of local interests, and is hostile to the larger public interest and convenience involved in interstate commerce. Practically, there may be no real or considerable conflict between the public interest that is local and that which is general. But, as the state legislatures are controlled by those who represent local demands, their action frequently results in measures detrimental to the interests of the greater public; and hence it is that the people of the United States have, by their constitution and the acts of congress, removed the control and regulation of interstate commerce from the state legislatures.

Countenance seems to be given in the opinion of the majority to the contention that the power of congress over the regulation of interstate commerce is not exclusive, by the observation that 'the plaintiff in error accepted its charter subject necessarily to the condition that it would conform to such reasonable regulations as the state might from time to time establish, that were not in violation of the supreme law of the land. In the absence of legislation by congress, it would be going very far to hold that such an enactment as the one before us was in itself a regulation of interstate commerce,' when applied to trains carrying passengers from one state to another.

But it has already been shown that congress has legislated expressly in relation to interstate trains and railroads, has made rules and regulations for their control, and has established a tribunal to make other rules and regulations.

Besides, as was observed by Mr. Webster in his argument in Gibbons v. Ogden, 9 Wheat. 17:

'The state may legislate, it is said, whenever congress has not made a plenary exercise of its power. But who is to judge whether congress has made this plenary exercise of power? It has done all that it deemed wise, and are the states now to do whatever congress has left undone? Congress makes such rules as in its judgment the case requires, and those rules, whatever they are, constitute the system. All useful regulations do not consist in restraint, and that which congress sees fit to leave free is a part of the regulation as much as the rest.'

Attention is called to the fact that in the cases of De Cuir v. Hall, Wabash Ry. Co. v. Illinois, and Illinois R. R. Co. v. Illinois, there were no specific regulations by congress as to providing separate accommodations for white and black passengers, as to rates of freight to be charged on interstate commerce, or as to stopping through trains at prescribed places; yet legislation by the states on those subjects was held void by this court, as a trespass on the field of interstate commerce.

'The power of congress to regulate commerce among the several states, when the subjects of that power are national in their nature, is also exclusive. The constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free, except as congress might impose restraint. Therefore it has been determined that the failure of congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states.' In re Rahrer, 140 U.S. 545, 11 Sup. Ct. 865.

Mr. Justice BREWER, Mr. Justice WHITE, and Mr. Justice PECKHAM concur in this dissent.