gress will expressly provide for those cases in which the interest of the nation, and the discharge of federal duties, if any are imposed, require the exemption of the road from state control.

49

In Smyth v. Ames this principle is approved, in that case the court holding that even the express reservation by Congress of the authority to reduce rates of fare when found unreasonably high, and to fix rates and establish them by law whenever the net earnings of the road, ascertained upon a named basis, should exceed a certain amount, was not to be taken as evidence that Congress, when not itself acting, desired to exempt the road from state regulation as to charges for transportation begun and completed within the State. "It ought not to be supposed," the court say, "that Congress intended, that, so long as it forbore to establish rates on the Union Pacific Railroad, the corporation itself could fix such rates for transportation as it saw proper, independently of the rights of the States through which the road was constructed to prescribe regulations for transportation beginning and ending within their respective limits. Congress not having exerted this power, we do not think that the national character of the corporation constructing the Union Pacific Railroad stands in the way of a State prescribing rates for transporting property on that road wholly between points within its territory."

§ 344. Routes Running Outside the State but with Both Terminals Within the State.

It is established that a State may not, without violating the Commerce Clause, fix and enforce rates for the continuous transportation of goods between two points within the State, when a part of the route is, however, outside the State. The doctrine though not at first very positively stated may be considered as firmly adopted since the decision of IIanley v. Kansas City Southern R. Co.50

It would seem that the doctrine as to the taxation of receipts for transportation over routes running outside the State but between

49 169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819.

50 187 U. S. 617; 23 Sup. Ct. Rep. 214; 47 L. ed. 333. See also U. S. v. D. L. & W. R. Co. (C. C.), 152 Fed. Rep. 269.

points within the State is not to be so strictly construed against the States as is that of the regulation of the rates. This is on the theory that the transportation over such routes is a unit and must be charged for as such, whereas a tax on the railway company based on the amount of transportation over its roads within the State is a reasonable one. Such a tax as this was upheld in Lehigh Valley R. Co. v. Pennsylvania" and, it is to be admitted, that the language employed by the court would seem to indicate that commerce carried on between two points within the same State is to be considered in all cases domestic even when part of the route lies outside the State.52 But when the attempt was made to apply the same doctrine to the state regulation of rates, the court, in Hanley v. Kansas City Southern R. Co. speaking of the decisions of state courts which had applied the doctrine of the Lehigh case to rate regulation said: "We are of opinion that they carry their conclusion too far. That [the Lehigh case] was the case of a tax, and was distinguished expressly from an attempt of a State directly to regulate the transportation while outside its borders."

51 145 U. S. 192; 12 Sup. Ct. Rep. 806; 36 L. ed. 672.

52 The court say: The question "is simply whether, in the carriage of freight and passengers between the points in one State, the mere passage over the soil of another State renders that business foreign, which is domestic. We do not think that such a view can be reasonably entertained, and are of opinion that this taxation is not open to constitutional objection by reason of the particular way in which Philadelphia was reached from Mauch Chunk."

CHAPTER XLIII.

FEDERAL LEGISLATIVE POWER OVER INTERSTATE COMMERCE.

§ 345. Federal Legislation.

In the chapters which have gone before, the extent of the powers of the States with reference to interstate commerce has been considered. In the present chapter we shall have to deal with the extent of the regulative, that is to say, of the legislative power, granted to Congress by the Commerce Clause.

Until 1887 the constitutional power granted the Federal Government by the Commerce Clause was employed by that government only by way of preventing the exercise of unconstitutional powers by the States. No attempt up to this time was made to put into exercise the affirmative legislative powers granted by that clause. In 1887, however, an act of Congress was passed establishing the Interstate Commerce Commission, and laying down certain regulations in accordance with which interstate commerce should be carried on, and providing for the enforcement of these regulations by the Commission and by the federal courts. In 1890 by the so-called Sherman Anti-Trust Act, interstate commerce was subjected to still further regulation; and, by the act of 1906, the whole matter of regulating railway rates subjected to affirmative federal control. By these and by other less important legislative acts, as well as by other and more radical measures which have been urged for enactment by Congress, the question as to the extent of the legislative powers of Congress with reference to foreign and interstate commerce has become one of great present importance. The character of the legislation already enacted will appear in the discussion which is to follow.

Over interstate commerce, the Federal Government has an authority equal in extent to that possessed by the States over domestic commerce or by the United States with reference to foreign commerce. This the Supreme Court has repeatedly declared.'

1"The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations." Brown v. Houston, 114 U. S. 622; 5 Sup. Ct. Rep. 1091;

The control of interstate and foreign commerce being granted to the Federal Government without limitation, the grant is, according to the general principle governing the interpretation of grants of federal power, construed to be plenary. This was stated in absolute terms by Marshall in Gibbons v. Ogden,2 and has never been questioned. "This power," said the Chief Justice, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress 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." 3

§ 346. Federal Police Regulations.

Congress has enacted various laws for the regulation of interstate and foreign commerce, which, so far as their substance is concerned, may properly be denominated police regulations. Among them are those relating to the use of safety appliances, hours of service of employees, monthly reports of accidents, arbitration of controversies between railroads and their employees, the 29 Wh. 1; 6 L. ed. 23.

3 In Champion v. Ames (188 U. S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 492) the court, after a review of adjudged cases, say: "The cases cited. show that the power to regulate commerce among the several States is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions in the exercise of power as are found in the Constitution of the United States; that such power is plenary, complete in itself, and may be exerted by Congress to the utmost extent, subject only to such limitations as the Constitution imposes upon the exercise of the powers granted by it; and that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts, simply because, in their opinion, such regulations may not be the best or most effective that could be employed."

exclusion of impure goods and lottery tickets from interstate transportation, employers' liability, etc. Strictly speaking, however, the constitutional authority for this legislation has not been derived from any general "police power" possessed by the Federal Government, but from the grant of authority in the Commerce Clause. That these laws, in so far as they are constitutional, draw their validity from this clause and not from a federal police power is a corollary from the general doctrine that the General Government possesses no powers whatever except by way of express grant, and powers implied from such grants."

$347. Prohibition of Interstate Commerce.

That the power to regulate includes the power to prohibit the interstate transportation of at least certain classes of commodities has been placed beyond question by the decision of the court in Champion v. Ames.5

That Congress might prohibit commerce with the Indians had been decided in United States v. Holliday, but for the authority so to do resort did not have to be had exclusively to the Commerce Clause. So also the power of Congress to prohibit foreign commerce was early exercised in the so-called Embargo Acts of the time of the War of 1812, but here also a source of authority outside of the Commerce Clause could, if necessary, be found, namely, in the control of international relations. When, however, the question came as to prohibitions upon interstate commerce, the argument was made that "regulation" might be federally exercised only for the maintenance of perfect equality as to commercial rights among the States, and for the protection and encouragement, and not for the destruction of interstate trade. The authority of Congress to exclude diseased cattle, dangerous explosives, and goods and persons infected with disease, was conceded, for thereby, it was pointed out, legitimate interstate commerce was in effect protected from injury or destruction. But when the question arose

4 Cf. Columbia Law Review, IV, 563, article "Is there a Federal Police Power? by Paul Fuller.

5 188 U. S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 492.

63 Wall. 407; 18 L. ed. 182.