security of investors and for the good of the public, that some limitation upon the powers of the State legislatures guilty of such action should exist, and it will be interesting to inquire by what means and in what measure the railroads have escaped these threatened attacks, and to what provisions in the Federal Constitution or its Amendments their success is attributable. It will be found that the sole protection has resided either in the interstate commerce clause of the Constitution or the Fourteenth Amendment thereof relating to due process of law and the equal protection of the laws, and that the provision in the Constitution in regard to the impairment of a charter by a State legislature in the cases that so far have arisen has proved of no avail. It is a peculiar fact, which has often occurred, however, in the development of the history of the Constitution, and which has recently been commented upon by the Supreme Court in In re Debs, 158 U. S. 564, 590, that the clauses of the Constitution the interpretation of which has been invoked, although in no sense having changed their meaning, may be sought to be applied to a state of facts which did not exist, and was not contemplated, when the clauses were originally adopted. For example, in the present instance, as has been said, when the interstate commerce clause which forms part of the original Constitution was drafted, there was not a railroad within the whole area of the United States; and, so far as the Fourteenth Amendment to the Constitution, relating to due process of law and the equal protection of the laws, is concerned, that was adopted merely as a consequence of the war, and with a view solely to the status of the then recently freed slave. But, nevertheless, constitutional provisions are of universal, and not particular application, and, although unchangeable, operate frequently under different conditions and upon separate states of facts. To cite In re Debs, supra, at page 590:—

"Up to a recent date commerce, both interstate and international, was mainly by water, and it is not strange that both the legislation of Congress. and the cases in the courts have been principally concerned therewith. The fact that in recent years interstate commerce has come mainly to be carried on by railroads and over artificial highways has in no manner narrowed the scope of the constitutional provision, or abridged the power of Congress over such commerce. On the contrary, the same fulness of control exists in the one case as in the other, and the same power to remove obstructions from the one as from the other.

"Constitutional provisions do not change, but their operation extends

to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so is it with the grant to the national government of power over interstate commerce. The Constitution has

not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop."

II.

DEFINITION OF INTERSTATE COMMERCE.

It will be most convenient, for present purposes, to define first what transportation by railroad constitutes State, and what interstate commerce; and, in the discussion of the question, to divide such transportation into the following several possible classes:

(1) Traffic taken up within a State and carried to another point therein; as, for example, a haul from A, in Massachusetts, to B, in Massachusetts.

(2) Traffic taken up within a State and carried to another point therein, but, upon the journey, transported through another State; as, for example, a haul from A, in Massachusetts, to B, in Massachusetts, passing through Vermont.

(3) Traffic through or across a State; as, for example, a haul from C, in Vermont, to D, in Connecticut, through or across Massachusetts.

(4) Traffic taken up inside of a State and carried without; as, for example, a haul from A, in Massachusetts, to C, in Vermont. (5) Traffic taken up outside of a State and brought within; as, for example, a haul from C, in Vermont, to A, in Massachusetts.

(6) Traffic carried over a road wholly within a State, but in continuous transit from a point without said State to a point within, or from a point within to a point without; as, for example, a haul from A, in Massachusetts, to B, in Massachusetts, or from B, in Massachusetts, to A, in Massachusetts, over a Massachusetts railroad between said A and B, being part of a carriage, however, from C, in Vermont, to A, in Massachusetts, or from A, in Massachusetts, to C, in Vermont, over said Massachusetts railroad and another and separate railroad from said B to said C.

(1) A, in Massachusetts, to B, in Massachusetts. There can be no question that a carriage of this character is domestic commerce, and not interstate, and that the same is within the exclusive control of the State. Wabash, St. Louis, & Pacific Railway Co. v. Illinois, 118 U. S. 557. Miller, J., in this case, at page 564, says:

"For instance, a contract might be made to carry goods for a certain price from Cairo to Chicago, or from Chicago to Alton. . . . Both the charge and the actual transportation in such cases are exclusively confined to the limits of the territory of the State, and is not commerce among the States, or interstate commerce, but is 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 [a State statute], it is not subject to the constitutional provision concerning commerce among the States."

The court here was speaking of a carriage in Illinois by an Illinois corporation, but the remarks would have held equally true of a carriage in the State by a United States corporation.1

(2) A, in Massachusetts, to B, in Massachusetts, through Vermont. A carriage of this character has been decided to be of the same nature as the preceding, and therefore to be State, and not interstate commerce. Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S. 192. The question in issue here was whether a tax by the State of Pennsylvania upon the gross receipts of a Pennsylvania railroad corporation was valid, if such receipts included the Pennsylvania portion of receipts arising from freight transported between two points in Pennsylvania, but in the course of transit carried through New Jersey. It was admitted, in the decision of the court, (contra, however, to the principle of State Tax on Railway Gross Receipts, 15 Wall. 284,) that a tax upon gross receipts was the same as a tax based upon the number of tons of merchandise hauled; and that, if the transportation in question consisted of interstate commerce, it was protected by the Constitution from taxation. In other words, the sole issue in the case was whether the facts as established presented a case of interstate commerce, or, to put the inquiry of the court itself, at page 201: –

"Is such intercourse consisting of continuous transportation between two points in the same State made interstate, because in its accomplishment some portion of another State may be traversed?"

1 Union Pacific Railway Company v. Goodridge, 149 U. S. 680. See also Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 334, 335.

And the court, by Fuller, C. J., answered the proposition in the negative, and held the tax to be constitutional.

The reason given for the decision is not wholly satisfactory, and furnishes no sufficient explanation of the result. An effort was made by the court to distinguish the case from the principle of Coe v. Errol1 and Lord v. Steamship Co.," but with questionable success. In the former case the court, by Bradley, J., said: —

"This question does not present the predicament of goods in course of transportation through a State, though detained for a time within the State by low water or other causes of delay, as was the case of the logs cut in the State of Maine, the tax on which was abated by the Supreme Court of New Hampshire. Such goods are already in the course of commercial transportation and are clearly under the protection of the Constitution." (p. 525.)

The court, in Lehigh Valley Railroad Company v. Pennsylvania, supra, commenting upon the statement just quoted, observed:

"These logs were also in course of transportation from the place of cutting to another place likewise in Maine, and, as that transportation required them to arrive and remain for a time in New Hampshire, the predicament in that regard was referred to in the opinion by way of argument, as being such that New Hampshire could not impose a burden on that transportation. But the right of Maine to tax them was not disputed." (pp. 202, 203.)

It is difficult to understand why, if it was not disputed, it was therefore necessarily admitted, for the question was not discussed at all in the opinion, and the whole reasoning of the case would seem to indicate that Maine had not such a right. The theory which the court had in mind when it said that New Hampshire could not tax Maine logs passing through New Hampshire on the way from one point in Maine to another was, that they became part of interstate commerce from the date that they started in course of transportation; Coe v. Errol, supra; and if they had become such, it would follow of course that, while in course of transit, they were as much under protection from the laws of Maine as they were from those of New Hampshire. In any event, the effect of the dictum is to hold them to be unquestionably removed, after starting upon their journey, from the general mass of prop

1 116 U. S. 517.

2 102 U. S. 541.

erty of either State, and therefore free from State control; and there appears no way to reconcile the two cases in this particular.

Lord v. Steamship Company,' in Lehigh Valley Railroad Co. v. Pennsylvania, supra, was also distinguished, or rather overruled upon the ground upon which it had been decided, and supported upon another. That was a case in which the issue was whether Congress had the power to regulate the liability of the owners. of vessels navigating the high seas, but engaged only in the transportation of freight and passengers between ports in the same State. Waite, C. J., in delivering the opinion of the court, rested it solely upon the commercial clause of the Constitution, and expressly omitted all reference to the judicial power of the United States over cases of admiralty and maritime jurisdiction. He said:

"She [the Ventura] was navigating among the vessels of other nations, and was treated by them as belonging to the country whose flag she carried. True, she was not trading with them, but she was navigating with them, and consequently with them was engaged in commerce. If in her navigation she inflicted a wrong on another country, the United States, and not the State of California, must answer for what was done. In every just sense, therefore, she was while on the ocean engaged in commerce with foreign nations, and as such she and the business in which she was engaged were subject to the regulating power of Congress."

The terms of the contract of carriage, therefore, were held to be subject to the control of Congress, and that although the transportation was between ports in the same State. The question, it is true, affected an instrument of commerce as well as a mere contract for carriage, but the reason that the transportation was held a transaction of interstate commerce was that the carriage was upon the high seas out of the jurisdiction of the State. It does not differ in principle from the case of goods passing out of a State and into it again while in continuous transit between two points in the same State, and if it is good law, Lehigh Valley Railroad Co. v. Pennsylvania, supra, is not. Undoubtedly, however, as the court says in the latter case, the decision can be justified on the principle of In re Garnett,2 by holding the statute a modification by Congress of the general admiralty and maritime law, and the case is perhaps more properly based upon that

1 102 U. S. 541.

2 141 U. S. I.