act gave them such power, desirable as it was. Justices Lurton and Pitney also dissented, but without expressing any reasons, which is to be regretted in such an important case.

The decision is meagre and unconvincing, as an example of statutory construction, and as such it must be primarily considered because the first consideration, that is, whether the order of the Commission was invalid on the ground that it exceeded the authority which Congress could lawfully confer, was disposed of by the Minnesota Cases, and the opinion of the court adds nothing to what had already been said. There is apparently the same disposition to confuse the action of Congress, through the Commission, with prior congressional action which operated directly upon the instrumentalities, or the very subject-matter of interstate commerce itself. Instrastate rates are never the instrumentalities or subject-matter of interstate commerce. Unless they represent that completely internal commerce of a state which since the time of Gibbons v. Ogden had been thought to be securely reserved to the states themselves, when can there ever be such commerce? Note the language of the court after analyzing the undisputed authority of the various cases dealing with the paramount power of Congress over safety appliances, hours of labor, employers' liability and the like:

in complete accord with prior decisions. He thus summarizes: "My position is that this Commission should confine itself within the four corners of the law of its creation, usurping neither the legislative function of the Congress nor the judicial power of the courts." 23 I. C. C. Rep. 63.

See in the Matter of Freight Rates, 11 I. C. C. Rep. 180; Hope Cotton Oil Co. v. Texas & Pacific Ry. Co., 12 I. C. C. Rep. 266; Reliance Textile & Dye Works v. Southern Ry. Co., 13 I. C. C. Rep. 48; Williams Co. v. Vicksburg, S. & P. Ry. Co., 16 I. C. C. Rep. 482; Andy's Ridge Coal Co. v. Southern Ry. Co., 18 I. C. C. Rep. 405; Saunders v. Southern Express Company, 18 I. C. C. Rep. 415; Alpha Portland Cement Co. v. B. & O. R. R. Co., 22 I. C. C. Rep. 446. In fact, since the opinion in the Shreveport Case the Commission refused to remedy a discriminative situation growing out of state rates, but in so doing failed to distinguish the Shreveport Case. Southwestern Shippers Traffic Assn. v. Atchison, T. & S. F. Ry. Co., 24 I. C. C. Rep. 570; but see Loeb v. T. & P. Ry., 24 I. C. C. Rep. 304, and Keogh v. Minn., St. P. & S. Ste. M. Ry. Co., 26 I. C. C. Rep. 73. See also Cement Rates from Pa. to N. J., 26 I. C. C. Rep. 687; Curry & White Co. v. D. & I. R. R., 30 I. C. C. Rep. 1; Carroll Brough & Robinson v. Atchison, Topeka & Santa Fe Ry. Co., 31 I. C. C. Rep. 466; Corporation Commission of Oklahoma v. Atchison, Topeka & Santa Fe Ry. Co., 31 J. C. C. Rep. 532.

"While these decisions sustaining the federal power relate to measures adopted in the interest of the safety of persons and property, they illustrate the principle that Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. This is not to say that Congress possesses the authority to regulate the internal commerce of a state, as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled."

9 93

Well-sounding phrases these, but totally illogical. Since, as the Supreme Court has many times said in determining whether state legislation has unduly burdened interstate commerce, it must look through form to substance must consider the real effect of the state legislation - why should it not do the same when the situation is reversed? For each power is equally plenary within its given sphere. Why did not the Supreme Court in both the Minnesota and Shreveport Cases face the situation squarely and admit that amendment of the Constitution, difficult as it is of attainment and rightly so is the only true remedy? "The power to deal with the relation between the two kinds of rates, as a relation, lies exclusively with Congress," 94 reiterates the court. Yet in order to prove this the court relies upon a case, Louisville & Nashville R. R. Co. v. Eubank, which we have previously considered, wherein it was expressly held that if Congress had regulated the interstate rate there involved "there would be in that case no interference with or regulation of interstate commerce directly or indirectly by the state, its action could have no possible effect upon the interstate rate, as the amount of the charge would be regulated by the body with which the right of regulation exists." 95

To use the words of Justice Brewer, dissenting in the Eubank Case, "it is strange to be told that the action of a carrier in fixing interstate rates is potent to render unconstitutional the legislation of the state respecting local rates, when the like action of Congress in prescribing interstate rates is not so potent. In other words,

83 234 U. S. 353. See in this connection, Louisville & Nashville R. R. Co. v. Higdon, 234 U. S. 592. 95 184 U. S. 41.

94 Ibid., 354.

196

action by the carrier in pursuit of its own financial interests overturns the constitution and statute of the state when like action by Congress in the exercise of its constitutional power does not.' Does not the reasoning of Justice Hughes in the Shreveport Cases more nearly support the minority rather than the majority opinion in the Eubank Case?

Turning now to the second and really the vital question in the Shreveport Cases, namely, whether the Interstate Commerce Commission exceeded the authority given to it under the Interstate Commerce Act, the court, with a mere wave of its hand, sweeps aside the controlling proviso in Section 1 of the act, expressly excluding intrastate commerce from its jurisdiction. The whole history of the debates over the passage of the act, which the court cautiously avoids, would seem to show that it would never have been passed had it been believed to be capable of the construction which the Supreme Court has now placed upon it. 97 Clearly, this is judicial legislation. How could the court so soon erase what it had said in the Minnesota Cases, that it is not its function "under the guise of construction to provide a more comprehensive scheme of regulation than Congress has decided upon"? 98

With equal ease the court overrules the case of East Tennessee, etc. Ry. Co. v. Interstate Commerce Commission 99 in order to accomplish its purpose, though of course without admitting that it does. Thirteen years before, it had decided in that case that the prohibition of Section 3 of the act was directed only against unjust discrimination and undue preference arising from the voluntary and wrongful act of the carriers, and did not relate to acts the result of conditions wholly beyond the control of the carriers, such as competition, and presumably therefore statute, court decree or order of an administrative, or semi-judicial body. "In the view that the Commission was entitled to make the order, there is no longer compulsion upon the carriers by virtue of any inconsistent local requirement, now says the court, and thus the case of East Tennessee, etc. Ry. Co. v. Interstate Commerce Commission is summarily disposed of by assuming as a premise the very question

184 U. S. 45.

"100

97 See Congressional Record, 49th Congress, 1st Session, vol. 17, pp. 3722, 4404. 99 181 U. S. 1 (1901).

98

230 U. S. 433.

100 234 U. S. 359. See also Intermountain Rate Cases, 234 U. S. 476.

to be proved.101 "We are not unmindful," says the court, concluding its opinion, "of the gravity of the question that is presented when state and federal views conflict. But it was recognized at the beginning that the nation could not prosper if interstate and foreign trade were governed by many masters, and, where the interests of the freedom of interstate commerce are involved, the judgment of Congress and of the agencies it lawfully establishes must control.” 102

Thus Mr. Justice Hughes would carry us back again over those ninety years of decisions that we have just reviewed — back to Gibbons v. Ogden — and have us understand, from the lips of Chief Justice Marshall, that if Congress so wills it there shall be no internal commerce of a state. For such is necessarily to be the result of the Minnesota and Shreveport decisions. In the former the court said that "the situation is not peculiar to Minnesota. The same question has been presented by the appeals, now before the court, which involve the validity of intrastate tariffs fixed by Missouri, Arkansas, Kentucky and Oregon. Differences in particular facts appear, but they cannot be regarded as controlling." These appeals were all decided in conformity with the opinion in the Minnesota Cases.104 As for the Shreveport decision, it is almost a truism to say that nearly every rate controversy to-day presents a question of discrimination as well as of unreasonableness per se. Months before the Shreveport decision was rendered, shippers in states adjoining Minnesota, believing that the court would decide as it has done, filed dozens of complaints based on discriminations which they alleged had resulted from the application of the scale of rates approved in the Minnesota Cases. Before the

"103

101 The majority of the Commerce Court attempted to distinguish this case on the ground that it primarily involved the long and short haul clause of the original fourth section of the act, rather than the third section, and also on the ground that the administrative authority of the Commission had been materially increased by the amendments of 1906 and 1910, as the Supreme Court observed in Procter & Gamble v. United States, 225 U. S. 282, 297.

104 See Missouri Rate Cases, 230 U. S. 474; Knott v. St. Louis S. W. Ry. Co. and 14 other cases, 230 U. S. 509; Knott v. St. Louis K. C. & Col. R. R. Co., 230 U. S. 512; Oregon R. R. & Nav. Co. v. Campbell, 230 U. S. 525; Southern Pacific Co. v. Campbell, 230 U. S. 537; Allen v. St. Louis I. M. & So. Ry. Co., Same v. St. Louis S. W. Ry. Co., 230 U. S. 553; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298. See also Chesapeake & Ohio Ry. Co. v. Conley, 230 U. S. 513.

Shreveport decision the Interstate Commerce Commission had no further power after it had fixed the interstate rate at a reasonable maximum. Its hands were tied. Now it has an option of either changing the interstate rate or changing the local rate. Nor is there any persuasive force in the argument that in most instances the Interstate Commerce Commission will proceed with caution, feeling discretion to be the better part of valor, and will elect to exert its influence upon the interstate rate whenever possible.105 The point is, the power to do otherwise is still there.

We have seen how Chief Justice Marshall first gave expression to the exclusive power of Congress in relation to matters purely national, and to the equally exclusive power of the states in relation to matters purely internal. We have seen how as a necessary corollary to these principles he first announced a third principle of concurrent powers, or, as we believe we have more appropriately described them, a dominant federal and a servient state power in matters which, although local in their nature, yet affect interstate commerce. We have seen our highest judiciary vacillating in its acceptance of this third and more novel principle until it was finally established in our constitutional law, as firmly as had been established the two earlier principles. But never, in any of the decisions, have we found support for this new fourth theory which the Minnesota and Shreveport Cases have evolved the theory of a dominant federal and a servient state power in a field hitherto unconditionally reserved to the states the field of local rate-making. Further, it is all the more strange to be told that the legislative branch of the government, Congress, through its administrative agent, the Interstate Commerce Commission, and not the judiciary shall determine what is a forbidden interference with interstate commerce. Such is the decision in the Shreveport Cases, for a ruling must first be obtained from the Commission before recourse may be had to the courts, and furthermore, under the provisions of the Interstate Commerce Act, it would seem that the railroads cannot, themselves, institute the necessary proceedings

an undue hardship unquestionably on

105 As an example of this caution, see Southwestern Shippers' Traffic Ass'n. v. Atchison, T. & S. F. Ry. Co., 24 I. C. C. Rep. 570; Corporation Commission of Oklahoma v. Atchison, T. & S. F. Ry. Co., 31 I. C. C. Rep. 532.