The present rate is not the result of any "arrangement" between the two carriers for "conBut the Interstate Commerce Act does not tinuous carriage or shipment" from Oregon to include or apply to all the instrumentalities or San Francisco, and vice versa, but only an inagencies used or engaged in interstate com-dependent, although concurrent, reduction of merce. It does not include any water craft, unless it is used in connection with a railway "under a common control, management or arrangement for a continuous carriage or shipment" from one State or Territory of the United States to another, or to or from such State or Territory from or to a foreign country.

UNITED STATES CIRCUIT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA.

Re Petition of the Receivers of the TEXAS

PETITION by the Receivers of the Texas & stantially different from those sur- Pacific R. Co. for a ruling by the court as rounding transportation to other points to their right to establish lower rates at El Paso on said railway as to justify said Com-on traffic to and from Mexico than at other

""

Pardee, C. J., delivered the following opinion :

points to and from which the haul was shorter. | port into and received from Mexico and for The petition stated that the enforcement of delivery at El Paso than is charged at points the "long and short haul" section (§ 4) of the between that city and the points where the Interstate Commerce Law would work irrepar- freights originate and where the distance and able injury to the road under the charge of said haul are shorter. receivers, petitioners; that said section forbids charging less for longer than for shorter haul when the circumstances and conditions are substantially similar;" that the petitioners be- It is considered that the petitioners are correct lieve that the circumstances and conditions in their construction of the Act of Congress aptouching traffic with the Republic of Mexico proved February 4, 1887, commonly known as through El Paso and from the Republic of the Interstate Commerce Law, as to the transMexico to points in the United States are sub-portation of passengers to and from the City of stantially different from those that surround El Paso, in the State of Texas, as in the forethe transportation of freights to other points on going petition set forth. the line of said Texas & Pacific Railway, and that they would be justified in establishing lower rates there on freights transported for ex

And said petitioners are hereby instructed to conduct the same according to their said construction, until further order of the court.

UNITED STATES SUPREME COURT.

WABASH, ST. LOUIS AND PACIFIC
RAILWAY COMPANY, Plff. in Err.,

v.

PEOPLE OF THE STATE OF ILLINOIS.

(From Lawyers' ed. U.S. Reports, Bk. 30, p. 244.) *A Statute of Illinois enacts that if any railroad company shall, within that State, charge or receive for transporting passengers or freight of the same class, the same or a greater sum for any distance than it does for a longer distance, it shall be liable to a penalty for unjust discrimination. The defendant in this case made such discrimination in regard to goods transported over the same road or roads from Peoria in Illinois and from Gilman in Illinois to New York; charging more for the same class of goods carried from Gilman than from Peoria, the former being eighty-six miles nearer to New York than the latter, this difference being in the length of the line within the State of Illinois. 1. This court follows the Supreme Court of Illinois in holding that the Statute of Illinois must be construed to include a transportation of goods under one contract and by one voyage from the interior of the State of Illinois to New York. 2. This court holds further that such a transportation is "commerce among the States," even as to that part of the voyage which lies within the State of Illinois, while it is not denied that there may be transportation of goods which is begun and ended within its limits and disconnected with any carriage outside of the State, which is not commerce among the States.

3. The latter is subject to regulation by the State, and the Statute of Illinois is valid as applied to it. But the former is national in its character, and its

*Head notes by Mr. Justice Miller.

regulation is confided to Congress exclusively, by that clause of the Constitution which empowers it to regulate commerce among the States.

4. The cases of Munn v. Illinois, C. B. & Q. R. R. Co. v. lowa, and Peik v. Chicago & Northwestern R. R. Co., all in 94 U. S. [Bk. 24, L. ed.], examined in regard to this question, and held, in view of other cases decided near the same time, not to establish a contrary doctrine.

5.

6

Notwithstanding what is there said, this court holds now, and has never consciously held otherwise, that a statute of a State, intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to that part of such transmission which may be within the State.

It follows that the Statute of Illinois, as construed by the Supreme Court of the State, and as applied to the transaction under consideration, is forbidden by the Constitution of the United States; and the judgment of that court is reversed.

(Argued Apr. 14, 15, 1886. Decided Oct. 25, 1886.)

IN ERROR to the Supreme Court of the State

of Illinois. Reversed.

The case and agreed statement of facts appear in the opinion.

Messrs. H. S. Greene and W. C. Goudy, for plaintiff in error:

Under section 8 of article 1 of the Constitution, a regulation of commerce which is of a purely local character, and does not admit of general application, may be adopted and enforced by local authority But where the subNOTE.-Constitutional law; regulation of interstate ject of regulation is of national concern, or adCommerce; how far the power of Congress is exclu-mits of one uniform plan or system of regulation, sive. For a full discussion, see Gloucester Ferry it is exclusively within the control of Congress.

Co. v. Pa. 114 U. S. bk. 29. L. ed. p. 158, note.

The subject matter of this Act is the discrimination in the rates charged for carriage. It "For the purposes of the trial of said cause, neither requires the defendant to carry, nor and to save the making of prooi therein, it is prevents it from carrying, any freight between hereby agreed on the part of the defendant this State and other States. It may carry any that the allegations in the first count of the decgoods it chooses, at any time and in any man-laration are true, except that part of said count ner. The Act does not interfere with such commerce. But the defendant being a public servant, it requires it not to injure one citizen of the State by imposing upon him a greater charge than it imposes upon another for a similar service. The charge and collection of exorbitant and discriminating rates constitute a violation of the Act.

The Act in question is not in conflict with any Act of Congress and is within the power of the State to enforce. The grant of commercial power to Congress does not exclude the The first count in the declaration, which is exercise by the State of authority over its sub-referred to in this memorandum of agreement, ject matter.

for transportating twenty-six thousand pounds | Illinois to the State of New York, which falls of goods and chattels from Peoria, in the State within the operation, and is wholly controlled of Illinois, to New York City, the sum of $39, by the terms of the third clause of section eight being at the rate of fifteen cents per hundred of article one of the Constitution of the United pounds for said carload; and that on the same States, which the defendant sets up and relies day it agreed to carry and transport for upon as a complete defense and protection in Isaac Bailey and F. O. Swannell another car- said action. This question of whether the load of goods and chattels from Gilman, in the Statute of Illinois, as applied to the case in State of Illinois, to said City of New York, for hand, is in violation of the Constitution of the which it charged the sum of $65, being at United States, as set forth in the plea, was also the rate of twenty-five cents per hundred raised on the trial by a request of the defendpounds. And it is alleged that the carload ant, the Railroad Company, that the court transported for Elder & McKinney was carried should hold certain propositions of law on the eighty-six miles further in the State of Illionois same subject, which propositions are as folthan the other carload of the same weight. This lows: freight being of the same class in both instanc- The court holds as law that, as the tolls or es, and carried over the same road, except as rates of compensation charged and collected by to the difference in the distance, it is obvious the defendant, in the instance in question, were that a discrimination against Bailey & Swan- for transportation service rendered in transportnell was made in the charges against them as ing freight from a point in the State of Illinois compared with those against Elder & McKin- to a point in the State of New York, under an ney; and this is true whether we regard the entire contract or undertaking to transport such charge for the whole distance from the termi-freight the whole distance between such points, nal points in Illinois to New York City or the proportionate charge for the haul within the State of Illinois.

The language of the statute which is supposed to be violated by this transaction is to be found in chapter 114 of the Revised Statutes of Illinois, section 126. It is there enacted that if any railroad corporation shall charge, collect, or receive for the transportation of any passenger or freight of any description upon its railroad, for any distance within the State, the same or a greater amount of toll or compensation than is at the same time charged, collected, or received for the transportation in the same direction of any passenger or like quantity of freight of the same class over a greater distance of the same road, all such discriminating rates, charges, collections, or receipts, whether made directly or by means of rebate, drawback, or other shift or evasion, shall be deemed and taken against any such railroad corporation as prima facie evidence of unjust discrimination prohibited by the provisions of this Act. The statute further provides a penalty of not over $5,000 for that offense, and also that the party aggrieved shall have a right to recover three times the amount of damages sustained, with costs and attorneys' fees.

To this declaration the Railroad Company demurred. The demurrer was sustained by the lower court in Illinois, and judgment rendered for the defendant. This, however, was reversed by the Supreme Court of that State, and on the case being remanded the demurrer was overruled; and the defendant pleaded, among other things, that the rates of toll charged in the declaration were charged and collected for services rendered under an agreement and undertaking to transport freight from Gilman, in the State of Illinois, to New York City, in the State of New York, and that in such undertaking and agreement the portion of the services rendered or to be rendered within the State of Illinois was not apportioned separate from such entire service; that the action is founded solely upon the supposed authority of an Act of the Legislature of the State of Illinois, approved April 7, 1871; and that said Act does not control or affect or relate to undertakings to transport freight from the State of

66

that the Act of the General Assembly of the State of Illinois, approved May 2, 1873, entitled "An Act to Prevent Extortion and Unjust Discrimination in the Rates Charged for the Transportation of Passengers and Freight on Railroads in This State, and to Punish the Same, and Prescribe a Mode of Procedure and Rules of Evidence in Relation Thereto, and to Repeal an Act Entitled 'An Act to Prevent Unjust Discrimination and Extortion in the Rates to be Charged by the Different Railroads in the State for the Transportation of Freight on Said Roads,' approved April 7, 1871," does not apply to or control such tolls and charges, nor can the defendant be held liable in this action for the penalties prescribed by said Act.

"The court further holds as law that said Act in relation to extortion and unjust discrimination cannot apply to transportation service, rendered partly without the State and consisting of the transportation of freight from within the State of Illinois to the State of New York, and that said Act cannot operate beyond the limits of the State of Illinois.

The court further holds as matter of law that the transportation in question falls within the proper description of 'commerce among the States, and as such can only be regulated by the Congress of the United States under the terms of the third clause of section 8 of article 1 of the Constitution of the United States."

All of these propositions were denied by the court, and judgment rendered against the defendant, which judgment was affirmed by the supreme court on appeal.

The matter thus presented, as to the controlling influence of the Constitution of the United States over this legislation of the State of Illinois, raises the question which confers jurisdiction on this court. Although the precise point presented by this case may not have been heretofore decided by this court, the general subject of the power of the State Legislatures to regulate taxes, fares and tolls for passengers, and transportation of freight over railroads within their limits has been very much considered recently; State Freight Tax Case, 15 Wall. 232 [82 U. S. bk. 21, L. ed. 146]; Munn v. Illinois, 94 U. S. 133 [Bk. 24, L. ed. 86]; Chicago etc. R. R. Co. v. Cutts, Id. 155 [Bk. 24, L. ed., 94];

Peik v. Chicago etc. R. Co.Id. 164 [Bk. 24, L.ed.97]; given an interpretation which makes it apply Stone v. Farmers Loan & Trust Co. 116 U. S. 307 to what we understand to be commerce among [Bk. 29, L.ed. 636]; Gloucester Ferry Co. v. Pa.114 the States, although the contract was made U.S. 204[Bk. 29, L. ed. 162]; Pickard v. Pullman within the State of Illinois, and a part of its Southern Car Co. 117 U. S. 34 [Bk. 29, L. ed. performance was within the same State, we are 785]; and the question how far such regulations, bound, in this court, to accept that construction. made by the States and under state authority, It becomes, therefore, necessary to inquire are valid or void, as they may affect the trans- whether the charge exacted from the shippers portation of goods through more than one State, in this case was a charge for interstate transin one voyage, is not entirely new here. The portation, or was susceptible of a division Supreme Court of Illinois, in the case now be- which would allow so much of it to attach to fore us, conceding that each of these contracts commerce strictly within the State, and so was in itself a unit, and that the pay received much more to commerce in other States. The by the Illinois Railroad Company was the com- transportation, which is the subject matter of pensation for the entire transportation from the the contract, being the point on which the point of departure in the State of Illinois to the decision of the case must rest, was it a transCity of New York, holds that while the Stat-portation limited to the State of Illinois, or was. ute of Illinois is inoperative upon that part of the contract which has reference to the transportation outside of the State, it is binding and effectual as to so much of the transportation as was within the limits of the State of Illinois; People v. Wabash, St. L. & P. R. R. Co. 104 Ill. 476; and undertaking for itself to apportion the rates charged over the whole route, decides that the contract and the receipt of the money for so much of it as was performed within the State of Illinois violate the statute of the State on that subject.

If the Illinois Statute could be construed to apply exclusively to contracts for a carriage which begins and ends within the State, disconnected from a continuous transportation through or into other States, there does not seem to be any difficulty in holding it to be valid. For instance, a contract might be made to carry goods for a certain price from Cairo to Chicago, or from Chicago to Alton. The charges for these might be within the competency of the Illinois Legislature to regulate. The reason for this is that both the charge and the actual transportation in such cases are exclusively confined to the limits of 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, it is not subject to the constitutional provision concerning commerce among the States. It has often been held in this court, and there can be no doubt about it, that there is a commerce wholly within the State which is not subject to the constitutional provision; and the distinction between commerce among the States and the other class of commerce, between the citizens of a single State and conducted within its limits exclusively, is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other. The Daniel Ball v. United States, 10 Wall. 557 [77 U. S. bk. 19. L. ed. 999]; Hall v. De Cuir, 95 U. S. 485 [Bk. 24, L. ed. 547]; Western Union Telegraph Co. v. Texas, 105 U. S. 460 [Bk. 26, L. ed. 1067].

It might admit of question whether the Statute of Illinois, now under consideration, was designed by its framers to affect any other class of transportation than that which begins and ends within the limits of the State. The Supreme Court of Illinois having in this case

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 interstate 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 power on that subject; and to this proposition a large part of the argument of the AttorneyGeneral 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, C. B. & Q. R. R. Co. v. Iowa and Peik v. Chicago & N. W. R. 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 [supra] 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 the case of State Tax on Railway Gross Receipts, 15 Wall. 293 [82 U. S. bk.21, L. ed. 167] 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 instruments 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 the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with interstate 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