reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised." 73

True, in the case just referred to, the court was not called upon to construe express language of grant, but rather of restriction. But correct constitutional interpretation must necessarily be the same in both directions, as is explained in this case, namely, liberal construction, yet at the same time fidelity to both the spirit and purpose of the instrument.

Let us consider in more detail the cases relied upon in the Minnesota opinion to establish the principle of a dominant federal and a servient state power over intrastate rates. The first cases considered by the court are the Granger Cases. We have already analyzed the language of these cases when they were considered under the Extreme States' Rights Period, and we found that the dormant power referred to in all of them was the dormant power of Congress over interstate commerce, for the question was whether the states could regulate this commerce in the absence of congressional regulation, and not, as in the Minnesota Cases, whether Congress could ever regulate intrastate commerce. Obviously the questions are totally different. This part of the decisions in the Granger Cases, is, as we have seen, and as the court in the Minnesota Cases points out, no longer law because soon repudiated in the case of Wabash, St. L. & P. Ry. Co. v. Illinois. "But," said Mr. Justice Hughes in referring to this case, "no doubt was entertained of the state's authority to regulate rates for transportation that was wholly intrastate." 74 More than this, Mr. Justice Miller, in delivering the opinion of the court, and in repudiating the doctrine of the earlier cases that until Congress acted, the states might regulate interstate commerce, used these words: "Though it is true that . . . the question of the exclusive right of Congress to make such regulations 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." 75 All of these remarks have been quoted. This principle received no attention at the hands of the court in the Wabash Case. How then can any of these cases be properly considered as authority, in even the slightest degree, for the principle of a dominant federal and a servient state power as announced by Mr. Justice Hughes?

From the remaining case relied upon by the court in this branch of its opinion, namely, Stone v. Farmers' Loan and Trust Co., one of the so-called Railroad Commission cases, to which reference has already been made in this article, Mr. Justice Hughes quotes the following language, affirming the plenary power of the state over its internal commerce and giving no suggestion that this power is servient to Congress: "It [the state], may, beyond all question, by the settled rule of decision in this court, regulate freights and fares for business done exclusively within the state, and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi." 76

So much for the cases relied upon by the court in the first part of its opinion. In the second part of its opinion, wherein the scope of the Interstate Commerce Act is discussed (which we shall consider later), numerous other cases of similar import are cited, but in none of them is language found which in any way qualifies the principle that the state's power over intrastate rates is plenary. "The decisions of this court since the passage of the act to regulate commerce," says Mr. Justice Hughes, "have uniformly recognized that it was competent for the state to fix such rates, applicable throughout its territory. If it be said that in the contests that have been waged over state laws during the past twenty-five years, the question of interference with interstate commerce by the establishment of state-wide rates for intrastate traffic has seldom been raised, this fact itself attests the common conception of the scope of state authority." "7 Then follows an analysis of decisions, all of which confirm in unmistakable terms the plenary power of the states.7

78

75 118 U. S. 569-70 (1886). 77 230 U. S. 423.

76 116 U. S. 307, 334 (1886).

78 Ibid., 423-33. It must, in fairness, be admitted that the principle of the Minnesota decision seems to have been predicted, with little reasoning, however, in one or

Transportation is wholly within a state or it is not. There can be no doubt as to the separability. The adjudications by the Supreme Court dealing with the question of when an interstate shipment ceases to be such and becomes intrastate, and also with the taxation of the gross receipts of carriers are entirely sufficient to set at rest any doubt on this point.79 Clearly, if intrastate business is separable from interstate business, so must intrastate rates be separable from interstate rates, because rates are the symbol of business. They are the receipts which are declared separable for the purpose of taxation. If separable for that purpose, why are they not equally separable for the purpose of regulation? Suppose, for example, a railroad doing solely an intrastate business, operating in and out of the same terminals, as another railroad engaged solely in interstate business. Suppose, further, that the former road, in order to get the business of the latter, by fostering certain intrastate localities, greatly reduces its rates to these localities, which the interstate road either does not reach, or if it does, then only by an interstate route. Can it be denied that the economic necessity thus imposed upon the latter road to reduce its rates in order to meet the competition of the former is clear and direct? Yet can there be any question whatsoever as to the complete separability and independence of the two railroads, and therefore of their respective businesses? Suppose, further, that the state itself elected to construct and operate the purely intrastate railroad, instead of merely regulating it under private ownership. Could not the state have put into effect any rates that it chose, provided only they were not so exorbitant as to be confiscatory to the public? Certainly, and no authority, upon com

two opinions of courts of inferior jurisdiction, and by one or two authors. See especially Woodside v. Tonopah & G. R. Co., 184 Fed. 358; "Congress and Intrastate Commerce," 9 COL. L. REV. 38, by David W. Fairleigh. Mr. Fairleigh bases his argument on the theory of agency, which is unconvincing, and unsupported by authority. 79 See three articles by the author, “Constitutional Limitations upon State Taxation of Foreign Corporations," II COL. L. REV. 393; "The Commerce Clause and Intrastate Rates," 12 COL. L. REV. 321; “The Vanishing Rate-making Power of the States," 14 COL. L. REV. 122. See also United States Express Co. v. Minnesota, 223 U. S. 335; Atchison, etc. Ry. Co. v. O'Connor, 223 U.S. 280; Oklahoma v. Wells, Fargo & Co., 223 U. S. 298; Bacon v. Illinois, 227 U. S. 504; Susquehanna Coal Co. v. South Amboy, 228 U. S. 665; Baltic Mining Co. v. Massachusetts, 231 U. S. 68; Gulf, Colorado & S. F. Ry. Co. v. Texas, 204 U. S. 403; Ohio R. R. Commission v. Worthington, 225 U. S. 101.

plaint that interstate rates were thereby affected, could have called it to account. If such would be the position of a state operating its own intrastate lines, wherein lies the difference when it authorizes a corporation, as its creature and agent, to perform the same function?

It may be asked, why may not Congress regulate intrastate rates, if it may require, as the Supreme Court has decided, 80 the use of safety appliances on purely intrastate trains? The reason is that while interstate and intrastate rates may be interdependent for economic or geographical reasons, this is not the same direct interdependence that necessarily exists between trains or cars operated over the same tracks. A rate is a charge for, not an instrument of transportation. Of course, physical interdependence is not per se the one and only criterion by which we determine whether or not the necessity for uniformity is real or potential, but this much we must find, namely, that the exercise of state authority, whether it be regulatory of rates, hours of labor, employers' liability, the equipment or inspection of rolling stock, or what not, necessarily impinges upon and burdens in a relatively immediate way the full exercise of federal authority. We do so find in the case of safety appliances, because of the direct connection between the equipment used in the two kinds of traffic. There is an inseparable interdependence of the very objects of the legislation.81 But the court did not, nor can it find the same relation between interstate and intrastate rates. Why then, if these two classes of rates are separable, should the court say that the action or non-action of Congress is the controlling factor? If these two classes of rates are separable, the power of the state over the intrastate rates must be plenary and exclusive, not servient, unless we do violence to the very words of the Constitution and to that long line of decisions, beginning with Gibbons v. Ogden, which have just been analyzed.

The decision in Southern Railway Co. v. United States, the safetyappliance case, just referred to, clarifies, when properly analyzed,

80 Southern Railway Co. v. United States, 222 U. S. 20 (1911). See also Southern Railway Co. v. Crockett, 234 U. S. 725.

81 A somewhat kindred situation arose in the car distribution cases. See Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452 (1910); Baltimore & Ohio R. R. Co., ex rel. Pitcairn Coal Co., 215 U. S. 481 (1910); Morrisdale Coal Co. v. Penna. R. R. Co., 230 U. S. 304 (1913).

the distinction which, it is believed, underlies the Minnesota Cases. In every case cited by the Supreme Court to prove the principle that the plenary nature of the state's power depended upon the non-action of Congress, the legislation in question operated directly upon the instrumentalities of interstate commerce or upon the very subject-matter of interstate commerce itself. Herein lies the distinguishing feature which the court seems disposed to overlook. The character of the legislation clearly shows this: pilotage regulations, protection and improvement of navigable waters, regulation of wharfage charges or tolls, quarantine regulations, inspection laws, laws governing nonfeasance or misfeasance of interstate carriers. These involve no question of regulation by a state of a purely internal matter, but rather the regulation by a state of matters on their face interstate, and therefore governed, as we have seen, by the principle of concurrent powers. It was over these very matters that the controversy, out of which finally emerged the principle of concurrent powers, was waged for many years, and the whole basis of the controversy was the fact that these matters were interstate.

A case not referred to by the court, Interstate Commerce Commission v. Goodrich Transit Company,82 may seem at first blush to bridge the gap between the cases referred to, and to establish a precedent for the court's reasoning in the Minnesota Cases. In that case it was held that the Interstate Commerce Commission could compel an interstate carrier to disclose the records of all its business, including that which is purely intrastate. In answer to the argument that this was an unconstitutional usurpation of power by the federal government, the court replied that "the requiring of information concerning a business is not a regulation of that business." 83 Similarly, the court had previously held that because an injury to an interstate employee might be inflicted by a purely intrastate employee, the second federal employers' liability act covering such a case was not thereby invalid as a regulation of intrastate commerce, because, as the court said, it is a mistaken theory "that treats the source of the injury, rather than its effect upon interstate commerce, as the criterion of congressional power." 84 83 Ibid., 211.

82 224 U. S. 194 (1912).

* The Second Employers' Liability Cases, Mondou v. N. Y., N. H. & H. R. R. Co. 223 U. S. 1, 51 (1912).