Page:Harvard Law Review Volume 1.djvu/188

 State long-and-short-haul law could not practically be applied to the part of interstate transportation taking place within the State without materially affecting the rate for the transportation taken as a whole, and this obvious effect of the law indicates a purpose on the part of the Legislature to regulate interstate rates.

Directly opposed to the theory that a State law is to be deemed a regulation of foreign or interstate commerce, without regard to its purpose or object, if it impose a burden or restriction upon such commerce which the Court deem unreasonable, are the bridge cases. It is well settled that a State may authorize the obstruction of a navigable stream or other body of water by dams or bridges in any manner it may see fit. In Gilman v. Philadelphia, 3 Wall. 713, the Court say: “It must not be forgotten that bridges which are connecting parts of turnpikes, streets, and railroads are means of commercial transportation, as well as navigable waters, and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs. It is for the municipal power to weigh the considerations which belong to the subject, and to decide which shall be preferred, and how far either shall be made subservient to the other. The States have always exercised this power, and from the nature and objects of the two systems of government they must always continue to exercise it, subject, however, in all cases, to the paramount authority of Congress, whenever the power shall be exerted within the sphere of the commercial power which belongs to the nation.” This doctrine that the States have absolute power to obstruct their navigable waters with such bridges or dams as in their judgment are required to meet the public need, and that this judgment is not reviewable by the Courts, however serious the obstruction of interstate or foreign navigation may be, is utterly opposed to the doctrine that a State law operating upon foreign or interstate commerce, but not intended to regulate it, will, nevertheless, be held unconstitutional, as regulation of such commerce, if, in the opinion of the Court, they impose unreasonable restrictions or burdens upon foreign or interstate commerce. If the latter doctrine is to be deemed established by the cases, then the bridge and dam cases must be regarded as an exception to the general rule.

The case known as the State Freight Tax Case seems to be largely responsible for the dicta and reasoning that appear