Page:The Green Bag (1889–1914), Volume 19.pdf/176

 MONOPOLY AND THE LAW enormous proportions, local and interstate so intermingled, that it may become impos sible to separate it on state lines, to dis tinguish between earnings purely within the state and those earnings which are inter state, or to properly separate the expenses of the service in each case. If that time comes, we believe the Congress will be justified in regulating all of the commerce upon the lines of transportation engaged in interstate commerce. This is, perhaps, an advanced doctrine, and may to some extent shock the sensibilities of those who have strong views upon the reserved rights of the state. But it is a serious question whether the immense commerce of this country can be controlled and regulated effectively except through single federal power. Divided au thority, except where the subjects over which that authority is exercised are entirely distinct and separate so that there can be no clash, is always dangerous and ineffective. Let us consider this a moment. Taking into consideration that state and interstate commerce are carried on together by the same facilities, in the same trains and cars, by the same employees; that no division is made at state lines; that the density of traffic varies in different localities; that there is no possible way of accurately arriving at the expense of doing each class of business; that general expenses cannot be apportioned; that all apportionment is necessarily a mere estimate, — is it unrea sonable to say that there is no accurate way of arriving at what would be a reasonable rate of income for carrying the separate classes of traffic, or dividing upon state lines the commerce of the country? If it be true that the rules suggested by the courts are to be finally established as the basis of reasonable earnings, to-wit, a fair income upon the capital invested in the transporta tion, we are immediately confronted with a most difficult proposition. It is impossible to determine what proportion of capital is invested in interstate business. Shall the Interstate Commerce Commission allow

a fair income upon the entire capital, taking into consideration alone the earnings from interstate business and excluding the income from state traffic, or shall the state Com missions allow a reasonable income upon the same theory, taking into consideration alone state traffic? This might result in allowing the railway company double earn ings, or it might result in one commission allowing no profit whatever, and requiring the railway company to obtain its income from the other class of traffic. I suggest, with these questions before us, whether it is not in the power of the federal authority to take exclusive control of all the regulation of rates upon lines engaged in interstate commerce. When it comes to the control of corpora tions and individuals in interstate com merce under the Sherman Act, the courts do not stop because some of the corpora tions or individuals may also be engaged in intra-state commerce. In other words it has been decided that because a part of the business done by a combination of separate corporations in restraint of trade is intra-state, this in no way affects the power of Congress over the > combina tion, if it is also engaged in interstate commerce; and such combinations have been restrained and entirely dissolved, although the effect has been to stop that part of the commerce within the control of the states. May it not therefore be the ulti mate result of this question, that where the instrumentality, the railway, is engaged in interstate commerce, the power of Con gress attaches and it may regulate all of its business? I am not speaking of those lines of railway exclusively within the states and not engaged in any respect in interstate commerce. I do not suggest these questions with a view to encouraging the interposition of technical questions, in order to render the administration of this law ineffective, but, on the contrary, I believe it is the duty of the courts, while keeping in view