Year: 1874

tion. These are expressed in plain terms, and do not affect the questions which arise in this case, and which have been

 discussed at the bar. If, as has always

 been understood, the sovereignty of con- gress, though limited to specified objects, is plenary as to those subjects, the power l over commerce with foreign nations and among the several states is vested in con- gress as absolutely ss it would be in

 single Government. having in it's consti- tuition the same restrictions on the exer-

 else of the power as are found in the con- stitution of the United States"

 1 The wisdom and discretion of congress, thelr indentity with the people and the | influence which their constituents possess 1 at elections, are in this, as in many other instances, Gas that, for instance, of de-

 claring war; the sole restraints on which

 they have relied to secure them from its

 abuse. They are restraints on which the people must rely solely in all representa-

 tive Governments. If the language here quoted gives the true meaning of the con-

 stitution, of which there can be no doubt, ! then the power of congress in the matter

 of controlling and regulating interstate commerce IS co-extensive with the power

 Of the states over their completely inter

 nal commerce, and, If the power of state l over It's own commerce Is, for any reason,

 less than "plenary," then the power of 1 congress within itssphere is necessarily greater than that of such state, for the 1 power of congress can be limited only by

 the terms of the constitution of the Uni ted States. It will hardly be claimed,

 however, at this day that state has no power to fix or limit the charges of rail-

 roads within its territory. That they

 have such power Is now generally conced- ed. The power of the state over the rail

 road commerce within its limits Is not de-

 rived from the fact that railroads are l chartered by the state, but it is derived from the fact that railroads are public highways, and therefore necessarily sub- l ject to legislative control In very re-

 cent case, (Olcott vs. The Supervision, 16

 Wallace, 678,l the Supreme Court of the

 United States say that railroads, though

 constructed by private corporations and

 owned by them, are pubic highways" This has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had | arose whetherd states right of eminent domain could be exercised by a private corporation created for the purpose of constructing railroad. Clearly 1t could 1 not unless taking land for such purpose

 by such an agency is taking land for pub

 lie use. The right of eminent domain nowhere justifies taking property for private use Yet it is doctrine univer- sally accepted that state Legislature may authorize g private corporation to take land for the construction of such road, making compensation to the owner

 What else does this doctrine mean if not that building railroad, though it be built by private corporation, is an act done for public use? And the reason why 1t IS for public use is, that such road Is highway, whether made by the Govern ment itself or by the agency of corporate bodies, or even by individuals when they obtain their power to construct it from legislative grant. 1t would be useless to cite the numerous decisions to this effect which have been made in the state courts,

 We may, however. refer to two or three

 which, exhibit not only the doctrine itself,

 Whether the use of railroad is a public or private one depends in no measure upon the question who constructed it. or who owns 1t. It has never been consider

 ed a matter of any importance that the road was built by the agency of private corporation. No matter who is the agent. the function performed is that of the state. Though the ownership is private. the use is public So turnpikes, bridges ferries, and canals, although made by in

 dlvlduals under public grants, or by com panles, are regarded as pu6lci .juris. The right to exact tolls or charge freiehts IS granted for service to the public

 The owners may be private companies,

 but they are compelled to permit the pub llc to use their works in the manner in which such works can be used. That all persons may not put their own cars upon the road and use their own motive power

 has no bearing upon the question wheth- CT the road is public highway, It bears only upon the mode of use of which the Legislature is the exclusive judge.

 And ln the same case the court says: ''The railroad can therefore be controlled by the state. It's use can be defined: it's tolls and rates for transportation may be limited And since congress may make any regulation concerning commerce among the states which the state can make concerning that which is complete ly internal, 1t follows that since the latter may be regulated by limiting tolls and rates for transportation, SO may the for mer. It would, indeed, be a strange anomaly if line of railroad operating in but one state, and engaged in local com merce only, should be held subject to legislative control in respect to it's charges, while great through line crossing the territory of many states, and largely en- gagged Tn commerce among them, capable of becoming, if uncontrolled, vast and dangerous monopoly, should be held free from such control. And yet such is the inevitable consequence of denial of the power of congress to limit charges upon interstate lines, while granting to the states power to limit such charges unon lines within their borders. The regula- tlon of interstate commerce by state law IS, as Judge Redfeld we'll says, simply impossible" for the plain reason that the laws of 6 state can have no extra territo- r1al force whatever. Redfeld on Rail- ways. vol l, page 722.) In the case of the state freight tax already cited in this report, the court held that the tax upon ton of freight carried rom one state to another was regulation of commerce among the states, and, therefore. that no state can lay or collect such tax. In delivering the opinion of the court. Mir. Justice Strong said: @-

 Then, why is not tax upon freight transported from state to state regula- ton of interstate transportation, and, therefore, a regulation of commerce among the states? Is it not prescribing rule for the transporter by which he is to be controlled in bringing the subjects of commerce into the state and in taking them out? Can any one fail to see that to hK rates for the transporter by which he IS to be controlled in carrying on such commerce Is to prescribe such rule? The proposition that to fix reasonable rates for the government of persons en- gagged in carrying on commerce is legit- innate exercise of the power to regulate such commerce, will appear still more clearly when we consider that, at common law, 1t was violation of the obligation of common carrier to charge unreasonable or excessive compensation for the dis charge of any of his duties. It advocates, 1n arecent argument against the validity of the Illinois law upon this suhieck opd