portation than that which begins and ends within the limits of the State. The Supreme Court of Illinois having in this case given an interpretation which makes it apply to what we understand to be commerce among the States, although the contract was made within the State of Illinois, and a part of its performance was within the same State, we are bound, in this court, to accept that construction. It becomes, therefore, necessary to inquire whether the charge exacted from the shippers in this case was a charge for interState transportation, or was susceptible of a division which would allow so much of it to attach to commerce strictly within the State, and so much more to commerce in other States. The transportation, which is the subjectmatter, being the point on which the decision of the case must rest, was it a transportation limited to the State of Illinois, or was it a transportation covering all the lines between Gilman in the one case and Peoria in the other, in the State of Illinois, and the city of New York, in the State of New York?

The Supreme Court of Illinois does not place its judgment in the present case on the ground that the transportation and the charge are exclusively State commerce; but, conceding that it may be a case of commerce among the States, or inter-State commerce, which congress would have the right to regulate if it had attempted to do so, argues that this statute of Illinois belongs to that class of commercial regulations which may be established by the laws of a State until congress shall have exercised its powers on that subject; and to this proposition a large part of the argument of the attorney-general of the State before us is devoted, although he earnestly insists that the statute of Illinois, which is the foundation of this action,is not a regulation of commerce, within the meaning of the constitution of the United States. In support of its view of the subject the Supreme Court of Illinois cites the cases of Munn v. Illinois, Chicago, etc. R. Co. v. Iowa, and Peik v. Chicago, etc. R. Co., above referred to. It cannot be denied that the general language of the court in these cases, upon the power of congress to regulate commerce, may be susceptible of the meaning which the Illinois court places upon it. In Munn v. Illinois, 94 U. S. 133, the language of this court upon that subject is as follows: "We come now to consider the effect upon this statute of the power of congress to regulate commerce. It was very properly said in Case of State Tax on Railway Gross Receipts, 15 Wall. 293, that 'it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the constitution.' The warehouses of these plaintiffs in error are situated, and their business carried on exclusively, within the limits of the State of Illinois. They are used as instrument by those engaged in State, as well as those engaged in interState commerce, but they are no more necessarily a part of commerce itself than the dray or cart by which, but for them, grain would be transferred

from one railroad station to another. Incidentally they may become connected with inter-State commerce, but not necessarily so. Their regulation is a thing of domestic concern, and. certainly, until congress acts in reference to their interState relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of congress, in respect to inter-State commerce; but we do say that upon the facts, as they are represented to us in this record, that has not been done."

In the case of Chicago, etc. R. Co. v. Iowa, 94 U. S. 155, which directly related to railroad transportation, the language is as follows: "The objection that the statute complained of is void, because it amounts to a regulation of commerce among the States, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic concern. It is employed in State, as well as in inter-State commerce, and, until congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in doing so those without may be indirectly affected."

But the strongest language used by this court in these cases is to be found in Peik v. Chicago, etc. R. Co., 94 U. S. 164, as follows: "As to the effect of the statute as a regulation of inter-State commerce. The law is confined to State commerce, or such inter-State commerce as directly affects the people of Wisconsin. Until congress acts in reference to the relations of this company to interState commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations. Incidentally these may reach beyond the State. But certainly, until congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without."

These extracts show that the question of the right of the State to regulate the rates of fares and tolls on railroads, and how far that right was affected by the commerce clause of the constitution of the United States, was presented to the court in those cases. And it must be admitted that, in a general way, the court treated the cases then before it as belonging to that class of regulations of commerce which, like pilotage, bridging navigable rivers, and many others, could be acted upon by the States, in the absence of any legislation by congress on the same subject. By the slightest attention to the matter, it will be readily seen that the circumstances under which

a bridge may be authorized across a navigable stream within the limits of a State for the use of a public highway, and the local rules which shall govern the conduct of the pilots of each of the varying harbors of the coast of the United States, depend upon principles far more limited in their application and importance than those which should regulate the transportation of persons and property across the half or the whole of the continent, over the territories for half a dozen States, through which they are carried without change of car or breaking bulk.

Of the members of the court who concurred in those opinions, there being two dissentients, but three remain, and the writer of this opinion is one of the three. He is prepared to take his share of the responsibility for the language used in those opinions, including the extracts above presented. He does not feel called upon to say whether those extracts justify the decision of the Illinois court in the present case. It will be seen from the opinions themselves, and from the arguments of counsel presented in the reports, that the question did not receive any very elaborate consideration, either in the opinions of the court or in the arguments of counsel; and the question how far a charge made for a continuous transportation over several States, which included a State whose laws were in question, may be divided into separate charges for each State, in enforcing the power of the State to regulate the fares of its railroads, was evidently not fully considered. These three cases, with others concerning the same subject, were argued at the same time by able counsel and in relation to the different laws affecting the subject, of the States of Illinois, Iowa, Wisconsin, and Minnesota; the main question in all the cases being the right of the State to establish any limitation upon the power of the railroed companies to fix the price at which they would carry passengers and freight. It was strenuously denied, and very confidently, by all the railroad companies, that any legislative body whatever had a right to limit the tolls and charges to be made by the carrying companies for transportation. And

the great question to be decided, and which was decided, and which was argued in all those cases, was the right of the State within which a railroad company did business to regulate or limit the amount of any of these traffic charges. The importance of that question overshadowed all others, and the case of Munn v. Illinois, was selected by the court as the most appropriate one in which to give its opinion on that subject; because that case presented the question of a private citizen, or unincorporated partnership, engaged in the warehousing business in Chicago, free from any claim of right or contract under an act of incorporation of any State whatever, and free from the question of continuous transportation through several States. And in that case the court was presented with the question, which it decided, whether any one engaged in a public business, in which all the

public had a right to require his service, could be regulated by acts of the legislature, in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services.

The railroad companies set up another defense, apart from denying the general right of the legislature to regulate transportation charges, namely, that in their charters from the States they each had a contract, express or implied, that they might regulate and establish their own fares and rates of transportation. These two questions were of primary importance, and though it is true that, as incidental or auxiliary to these, the question of the exclusive right of congress to make such reglations of charges as any legislative power had the right to make, to the exclusion of the States, was presented, it received but little attention at the hands of the court, and was passed over with the remarks in the opinions of the court which have been cited.

The Case of State Freight Tax, 15 Wall. 232, which was decided only four years before these cases, held an act of the legislature of Pennsylvania void, as being in conflict with the commerce clause of the constitution of the United States, which levied a tax upon all freight carried through the State by any railroad company, or into it from any other State, or out of it into any other State, and valid as to all freight, the carriage of which was begun and ended within the limits of the State, because the former was a regulation of interstate commerce, and the latter was a commerce solely within the State, which it had a right to regulate. And the question now under consideration-whether these statutes were of a class which the legislature of the States could enact in the absence of any act of congress on the subject -was considered and decided in the negative.

It is impossible to see any distinction, in its effect upon commerce of either class, between a statute which regulates the charges for transportation and a statute which levies a tax for the benefit of the State upon the same transportation; and, in fact, the judgment of the court in the State Freight Tax Case rested upon the ground that the tax was always added to the cost of transportation, and thus was a tax, in effect, upon the privilege of carrying the goods through the State. It is also very difficult to believe that the court consciously intended to overrule the first of these cases without any reference to it in the opinion.

At the very next term of the court, after the delivery of these opinions, the case of Hall v. DeCuir, 95 U. S. 485, was decided, in which the same point was considered, in reference to a statute of the State of Louisiana, which attempted to regulate the carriage of passengers upon railroads, steamboats and other public conveyances, and which provided that no regulations of any companies engaged in that business should make any discrimination on aecount of race or color. This statute, by its terms, was limited to persons en

gaged in that class of business within the State, as is the one now under consideration; and the case presented in the statute was that of a person of color who took passage from New Orleans for Hermitage, both places being within the limits of the State of Louisiana, and was refused accommodations in the general cabin on account of her color. In regard to this the court declared that, "for the purposes of this case, we must treat the act of Louisiana of February 23, 1869, as requiring those engaged in inter-State commerce to give all persons traveling in that State, upon the public conveyances employed in such business equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color.

We have no

thing whatever to do with it as a regulation of internal commerce, or as affecting anything else than commerce among the States." And, speaking in reference to the right of the States in certain classes of interstate commerce to pass laws regulating them, the opinion says: "The line which separates the powers of the States from this exclusive power of congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances, it would be a useless task to undertake to fix an arbitrary rule by which the line must, in ail cases, be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved; but we think it may safely be said that State legislation whioh seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent intent in the management of his business throughout his entire voyage. * * * It was to meet just such a case that the commercial clause in the constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributcries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not be but productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers, and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to pas

sengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other, another. Commerce cannot flourish in the midst of such embarrassments."

The applicability of this language to the case now under consideration, of a continuous transportation of goods from New York to central Illinois, or from the latter to New York, is obvious, and it is not easy to see how any distinction can be made. Whatever may be the instrumentalities by which the transportation from one point to the other is effected, it is but one voyage,—as much so as that of the steamboat on the Mississippi river. It is not the railroads themselves that are regulated by this act of the Illinois legislature so much as the charge for transportation; and, in language just cited, if each one of the States through whose territories these goods are transported can fix its own rules for prices, for modes of transit, for times and modes of delivery, and all the other incidents of transportation to which the word "regulation" can be applied, it is readily seen that the embarrassments upon interstate transportation, as an element of interstate commerce, might be too oppressive to be submitted to. "It was," in the language of the court cited above, "to meet just such a case that the commerce clause of the constitution was adopted." It cannot be too strongly insisted upon that the right of continuous transportation, from one end of the country to the other, is essential, in modern times, to that freedom of commerce, from the restraints which the States might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to congress the power to regulate commerce among the States, and with foreign nations, as this court has said before, was among the most important of the subjects which prompted the formation of the constitution. Cook v. Pennsylvania, 97 U. S. 574; Brown v. Maryland, 12 Wheat. 446. And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the States which was deemed essential to a more perfect union by the framers of the constitution, if, at every stage of the transportation of goods and chattels through the country, the State within. whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce.

The argument on this subject can never be better stated than it is by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 195, 196. He there demonstrates that commerce among the States, like commerce with foreign nations, is necessarily a commerce which crosses State lines, and extends into the States, and the power of congress to regulate it exists wherever that commerce is found. Speaking of navigation as an element of commerce, which it is only as a means of transporta

tion, now largely superseded by railroads, he says: "The power of congress, then, comprehends navagation within the limits of every State in the union, so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States, or with the Indian tribes.' It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters (the Hudson river) to which the prohibition now under consideration applies." Page 197. So the same power may pass the line of the State of Illinois, and act upon its restriction upon the right of transportation extending over several States, including that one.

In the case of Telegraph Co. v. Texas, 105 U. S. 460, the court held that "a telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods," and that "both companies are instruments of commerce, and their business is commerce itself." And relying upon Case of State Freight Tax, 15 Wall. 232, already referred to, the court said that a tax by the State of Texas upon all messages carried within its borders was forbidden by the commerce clause of the constitution, as being a tax upor commerce among the States; and observed that "the tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. * Clearly, if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and interstate commerce, and beyond the power of the State. That is fully established in the cases already cited."

* *

In the case of Welton v. Missouri, 91 U. S. 275, it was said: "It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of a national importance, and admits and requires uniformity of regulation. The very object of investing this power in the general government was to insure this uniformity against discriminating State legislation."

The County of Mobile v. Kimball, 102 U. S. 691, the same idea is very clearly stated in the following language: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce, as thus defined, there can be only one system of rules, applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore, permissible. Language affirming the

exclusiveness of the grant of power over commerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxiliary to commerce."

In the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 204, s. c., 5 Sup. Ct. Rep. 826, decided two years ago, the court declared, without dissent, that "it needs no argument to show that the commerce with foreign nations and between the States, which consists in the transportation of persons and property between them, is a subject of national character, and requires uniformity of regulation." And still later, in the case of Pickard v. Pullman Southern Car Co., 117 U. S. 34, s. c., 6 Sup. Ct. Rep. 635,,the whole subject is very fully re-examined; and a tax of the State of Tennessee upon sleeping cars of that company, which were used in carrying passengers through the State, and into it and out of it, was held void as a regulation of commerce among the States.

The case of Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, s. c., 6 Sup. Ct. Rep. 334, 388, 1191, argued at the same term as the present, while it does not decide the latter, evidently does not support the construction placed by the Supreme Court of Illinois upon the case of Munn v. Illinois, and the other cases on which the court relies.

We must therefore hold that it is not, and never has been, the deliberate opinion of a majority of this court that a statute of a State which attempts to regulate the fares and charges by railroad companies within its limits, for a transportation which constitutes a part of commerce among the States, is a valid law.

Let us see precisely what is the degree of interference with transportation of property or persons from one State to another which this statute proposes. A citizen of New York has goods which he desires to have transported by the railroad companies from that city to the interior of the State of Illinois. A continuous line of rail over which a car loaded with goods can be carried, and is carried habitually, connects the place of shipment with the place of delivery. He undertakes to make a contract with a person engaged in the carrying business at the end of this route from whence the goods are to start, and he is told by the carrier: "I am free to make a fair and reasonable contract for this carriage to the line of the State of Illinois, but when the car which carries these goods is to cross the line of that State, pursuing at the same time this continuous track, I am met by a law of Illinois which forbids me to make a free contract concerning this transportation within that State, and subjects me to certain rules by which I am to be governed as to the charges which the same railroad company in Illinois may make, or has made, with reference to other persons and other places of delivery." So that while that carrier might be willing to carry these goods from the city of New York to the city of Peoria at the rate of 15 cents per hundred pounds, he is not permitted to do so, because the