But in Gibbons v. Ogden, the same Chief Justice said: "the power to regulate is to prescribe THE RULE by which the commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent * * * * * as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States the government, in regulating commerce between foreign nations among the States, may use means that also may be employed by a State in the exercise of its acknowledged powers; that, for example, of regulating commerce within a State and * The power "to regulate commerce here meant to be granted, was that power to regulate commerce, which previously existed in the States." (9 Wheat., 197, 204, 207). But with all the above amplification which gives to Congress all the power which the States have (and which they still retain undiminished although they give it) and which interprets the right of Congress to regulate interstate commerce, to include a right also to regulate the internal commerce of any one State-it does not seem to be anywhere exactly stated that Congress may regulate any one single detail in the internal operation of any one single instrument of commerce, such as a railway company, and so determine what rate or tariff or classification of freights between what two points shall be a legal and proper, and what illegal and improper. And even the language of Waite, C. J., in delivering the opinion in a late case (Pennsylvania Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9), does not seem, broad as it is, to include it. The Chief Justice's language was as follows: power conferred upon Congress to regulate commerce with foreign nations and among the several States is not confined to the instrumentalities of commerce known or in use when the Constitution was adopted, but keeps pace with the progress of the country, and adapts itself to the new developments of time and circumstances. It was intended for the government of the business to which it relates at all times and under all circumstances, and it is not only the right, but the duty of Congress to take care "The that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily incumbered by State legislation." It will be observed that the Chief Justice (after declaring that a telegraph company occupies the same relation to commerce as a carrier of messages, as a railroad company does as a carrier of goods), based his decision on the right of THE STATES to equality, so far as commerce between them was concerned, and to see that the legislation of any one STATE did not operate as a commercial discrimination against any other. This, at any rate, is exactly consonant with holding of the same court in the earlier case of Welton v. Missouri, 91 U. S. 275, viz.: "It (the grant of power to Congress) covers property which is transported as an article of commerce, from foreign countries or among the States, from hostile or interfering State legislation until it has mingled with and become a part of the general property of the country, and protects it even after it has entered a State, from any burdens imposed by reason of its foreign origin." Again, the power is co-extensive with the subject on whom it acts, and cannot be stopped at the external boundary of a State, but must enter its interior. (Marshall, C. J., in Brown v. Maryland, 12 Wheat. 446.) "The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State and some acting through two or more States, does not in any respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of commerce." (Field, J., The Daniel Bull, 10 Wall. 557, 565.) In the above decisions it would appear that what was insisted on was the right of each State to equal commercial privileges with all the rest; and even the exact words of the decision of Field, J. (in Sherlock v. Alling, 93 U. S. 99, 103), in which he holds that the constitutional power of Congress to regulate commerce "authorizes legislation with respect to all the subjects of * * * interstate commerce, the persons engaged in it, and the instruments by which it is carried on," do not seem to cover THE TARIFFS charged by the "instruments," at any rate unless they discriminate against States. In Canada Southern Railway Co. v. Bridge Co., 8 Federal Reports, 190, it was held, indeed, "that Congress may, in the exercise of its power to regulate commerce, prescribe the charges for the use of a bridge over a navigable stream." But the charge was an arbitrary one, or, if not arbitrary, at least bearing some desired proportion to a fixed sum, such as the cost of the bridge, or the average expenses of keeping the bridge in repair. But railway tariffs are not rigid or arbitrary; nor could a railway company be found so superior to the fluctuations of value of material, rates of wages, cost of material, etc., as to make rigid and arbitrary rates. So long as States are not discriminated against, where is there a decision which prevents a railway company from being as much its own judge of the conditions under which it can afford to do business as the grocer or the butcher who watches the markets, and sells his molasses or his beeves at one rate by retail and another by wholesale? But the times when the fathers provided that there should be no discriminations against STATES are not these times. There were no Pacific Railroads-indeed, no railroads at all, State or Interstate. Hereafter it may be argued that, since those words did not contemplate-could not have contemplated-railroads, which were yet to be conceived in the brain of man, it is unconstitutional to apply them to railroads at all. But let us waive that question here. The words "discrimination between States " then could not have certainly contemplated the problems of freight tariffs arising in 1887, just a century later, when almost every railroad in the country was the contracting agent of every other, and receivers of freights for points indifferently upon the Atlantic or Pacific, or Lake or Gulf ports, and every conceivable point anywhere between, in an area of 8,832,000 square miles. The term discrimination against a state at that date could only have meant the debarment of the citizens of one State from transportation privileges into another State, which were granted to a third. How possibly in 1787 could a state of affairs have been contemplated when the enforcement of a "short and long haul clause in a Federal statute should make the wheat and corn and hogs of Kansas, Missouri, Iowa, Nebraska and Minnesota, and the cattle of Texas, New Mexico and Colorado (undiscovered countries then, not even indicated upon the maps of the world), not worth shipment to New York or Baltimore at the rates which railroads, to pay running expenses, charge Pennsylvania, Virginia and New York farmers. Very possibly in the days when our fathers put that clause into the constitution, years ago, potatoes were imported into Boston from Scotland and sold at a profit. But here, in January, 1888, Scotch potatoes have been imported into Boston, and have been sold at a profit, simply because, under the clause they then draughted, a law has been passed providing that the railway systems of the United States (which the poets who were then contemporaries never dreamed of in their wildest flights), should not charge more for a short than for a long haul under substantially similar circumstances and conditions." Is the Interstate Commerce Law intended to put the United States back into the condition in which they were in 1787? I quote from a late authority, which seems to suggest something of the sort: "The humblest artisan, mechanic, and farmer now finds a small advance upon fuel, and every article that he eats or wears, luxuries and necessities as well, and when he becomes educated up to the fact that the advance upon all these articles is owing to this law, which bars the free interchange of commodities throughout our vast domain, which has hitherto existed under the untrammeled laws of trade and business, he will be heard from." The fact undoubtedly is that the interstate law has introduced the protection of distance for localities, especially to the advantage of Western manufacturers against Eastern manufacturers, and to the disadvantage of the Eastern consumer of Western products. The untrammeled traffic before the law was passed made the breaking down of this barrier of distance possible by cheap through rates. I have said that the history of the railway in the United States was a history of freight reduction. Let me quote here a couple |