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cause they put him "in the situation" of one having a wife living, "for the purpose" of enforcing the statutory provision.

The recent legislation which permits a divorced husband, prohibited from remarrying, to do so after five years, and with the consent of the court, and the class of cases which affirm the validity of such second marriage in another State, over whose boundaries our own prohibition does not extend, are alike inconsistent with any doctrine which makes the marriage relation as to either of the parties remain in existence after the dissolution of the contract and the severance of the bond. With the exception of a single case in the Supreme Court, itself overruled, the statutes and decisions are in entire harmony with the practice and the rule which has so long prevailed. We are of opinion that it should not be changed.

The judgment should be affirmed, with costs.
All concur, except Miller, J., absent.
Judgment affirmed.

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-DISCRIMINATIONS BY INTERSTATE RAILROADS.

SUPREME COURT OF THE UNITED STATES, OCTOBER 25, 1886.

WABASH, ST. LOUIS AND PACIFIC RY. Co. v. PEOPLE OF THE STATE OF ILLINOIS.

Mr. Justice Bradley, dissenting, said, among other things:

The principal question in this case therefore is, whether in the absence of congressional legislation, a State Legislature has the power to regulate the charges made by the railroads of the State for transporting goods and passengers to and from places within the State, when such goods or passengers are brought from, or carried to points without the State, and are therefore in course of transportation from another State, or to another State. It is contended that as such transportation is commerce between or among different States, the power does not exist. The majority of the court so hold. We feel obliged to dissent from that opinion. We think that the State does not lose its power to regulate the charges of its own railroads in its own territory simply because the goods or persons transported have been brought from or are destined to a point beyond the State in another State. The case before us is not embarrassed by any allegation of a contract between the State and the company, it is a question of the power to regulate, pure and simple. The State has never contracted away or attempted to contract away this power.

It is also unembarrassed by any Federal legislation on the subject. No one disputes that Congress might, if it saw fit, under its power to regulate commerce among the several States, regulate the matter under consideration; but it has not done so. The question rests solely and entirely upon the power of the State, when unrestrained by any contract, or by any action of the legislative department of the United States. Does it follow then that because Congress has the power to regulate this matter (though it has not exercised that power), therefore the State is divested of all power of regulation? That is the question before

us.

We had supposed that this question was concluded by the previous decisions of this court; that all local arrangements and regulations respecting highways, turnpikes, railroads, bridges, canals, ferries, dams and wharves, within the State, their construction and re

pair, and the charges to be made for their use, though materially affecting commerce, both internal and external, and thereby incidentally operating to a certain extent as regulations of interstate commerce, were within the power and jurisdiction of the several States. That is still our opinion.

It is almost a work of supererogation to refer to the cases. They are legion. A few only will be selected and referred to.

The first great case on the subject was that of Wilson v. Blackbird Creek Co., 2 Pet. 245, where the State of Delaware had authorized a dam in a navigable tidewater creek of that State, communicating with Delaware bay; and Chief Justice Marshall, delivering the unanimous opinion of the court, said: "The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations and among the several States.' If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the midddle and southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question. We do not think the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

This case was, in all things, affirmed by the later case of Gilman v. City of Philadelphia, 3 Wall. 713. The Legislature of Pennsylvania authorized the city of Philadelphia to erect a permanent bridge across the Schuylkill river (a navigable water), at the foot of Chestnut street. It was sought to restrain the erection of this bridge on the same grounds which had been urged in the Blackbird Creek case; but the Circuit Court of the United States refused to interfere, and dismissed a bill for an injunction. The decision was sustained by this court, which held that it was for Congress to determine when its full power to regulate commerce should be brought into activity, and as to the regulations and sanctions which should be provided; and that until the dormant power of the Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith cannot be made the subject of review by this court.

These principles are re-affirmed in the still more recent case of Escanaba Co. v. Chicago, 107 U. S. 678. In that case the authorities of Chicago, under the powers conferred upon them by the Legislature of Illinois, regulated the times for opening aud closing the draws

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In the bridges crossing the Chicago river, so as to accommodate the local travel across them at certain times, and to allow the passage of vessels at others. This operated as a regulation of the commerce on the river, including interstate and foreign, as well as domestic commerce. But there being no legislation of Congress to the contrary, this court held that the power was constitutionally exercised. Commerce was affected; commerce was even incidentally regulated; but the jurisdiction of the State, and of the city acting under State authority, was unhesitatingly recognized by the court. Mr. Justice Field, delivering the opinion of the court, said: "The Chicago river and its branches must therefore be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve the free navigation. But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of the people. This power embraces the construction of roads, canals and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant anthority. * Nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the State, or the authority of the city upon whom it has devolved that duty. When its power is exercised, so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction. * But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary."

* *

# *

The doctrines announced in these cases apply not only to dams in, and bridges over navigable streams, but to all structures and appliances in a State which may incidentally interfere with commerce, or which may be erected or created for the furtherance of commerce, whether by water or by land. It is matter of common knowledge that from the beginning of the government, the States have exercised almost exclusive control over roads, bridges, ferries, wharves, and harbors. No one has doubted their right to do so. It is recognized in the great case of Gibbons v Ogden, where Chief Justice Marshall, after enumerating some of the powers reserved to the States, says: "They form a portion of that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass." And he adds (what is very pertinent to this discussion): "No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given."

The case of Transportation Co. v Parkersburg, 107 U. S. 691, related to wharves. The city of Parkersburg had built certain wharves for the accommodation of vessels, principally steamboats, navigating the Obio river. The Transportation Company being the owner of several steamboats plying on the that river, complained of the wharfage charges as being extortionate and an unconstitutional interference with the

commerce of the Ohio river. It was shown that the charges were imposed by authority derived from the State laws; and we held that until Congress interfered the charges for wharfage was a matter of State law, and of State jurisdiction. We then said: "Wharves, levees, and landing places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, real estate; and they are primarily, at least, subject to the local State laws. * * Until Congress has acted, the courts of the United States cannot assume control over the subject as a matter of Federal cognizance. It is Congress, and not the judicial department, to which the Constitu tion has given the power to regulate commerce with foreign nations and among the several States.

The courts can never take the initiative on the subject."

There is a class of subjects, it is true, pertaining to interstate and foreign commerce, which require general and uniform rules for the whole country, so as to obviate unjust discriminations against any part, and in respect of which local regulations made by the States would be repugnant to the power vested in Congress, and therefore unconstitutional; but there are other subjects of local character and interest which not only admit of, but are generally best regulated by State authority. This distinction is pointed out and enforced in the case of Cooley v. Port Wardens of Phil adelphia, 11 How. 299. In that case it was held that the pilotage regulations of the different ports of the country belong to the latter class, and are susceptible of State regulation. This case has been approved in several subsequent decisions. Gilman v. Philadelphia, ubi supra; Crandall v. Nevada, 6 Wall. 32, 42; Ex parte McNeill, 13 id. 236; Osborne v. Mobile, 16 id. 482; R. Co. v. Fuller, 17 id. 569; The Lottawanna, 21 id. 581, 582; Packet Co. v. Keokuk, 95 U. S. 88; Pound v. Turk, id. 462; Hall v. De Cuir, id. 488; Wilson v. McNamee, 102 id. 575; Mobile v. Kimball, id. 698; Packet Co. v. Catlettsburg, 105 id. 562.

It is hardly necessary to argue, that in reference to this rule, railroads, canals, turnpikes, bridges, ferries, and wharves belong to the category of local subjects, local means and local aids of commercial intercourse. Congress may establish national roads, canals and bridges, it is true; but we speak of those (hitherto the most part) which are constructed and established under State authority; and in reference to these, it seems to us very clear, that in the absence of congressional legislation to the contrary, they are not only suscepti ble of State regulation, but properly amenable to it, irrespective of other considerations to which we shall refer.

The highways in a State are the highways of the State. Convenient ways and means of inter-communication are the first evidence of the civilization of a people. The highways of a country are not of private but of public institution and regulation. In modern times, it is true, government is in the habit, in some countries, of letting out the construction of important highways, requiring a large expenditure of capital, to agents, generally corporate bodies created for the purpose, and giving to them the right of taxing those who travel or transport goods thereon, as a means of obtaining compensation for their outlay. But a superintending power over the highways, and the charges imposed upon the public for their use, always remains in the government. This is not only its indefeasible right, but is necessary for the protection of the people against extortion and abuse. These positions we deem to be incontrovertible. Indeed they are adjudged law in the decisions of this court. Railroads and railroad corporations are in this category.

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Now since every railroad may be, and generally is, a medium of transportation for interstate commerce, and affects that commerce; and since the charges of fare and freight for such transportation affect and incidentally regulate that commerce; and since the railroad could not be built, and the charges upon it could not be exacted, without authority from the State, it follows as a necessary consequence that the State, in the exercise of its undoubted function and sovereignty, does in the establishment and regulation of railroads, to a certain and a very material extent, not only do that which affects but incidentally regulates commerce.

It does so by the very act of authorizing the construction of railroads and the collection of fares and freights thereon. No one doubts its powers to do this. The very being of the plaintiffs in error, the very existence of their railroad, the very power they exercise of charging fares and freights, are all derived from the State. And yet, according to the argument of the plaintiffs in error, pursued to its legitimate consequences, the act of the State in doing all this ought to be regarded as null and void because it operates as a regulation of commerce among the States. Not only does the right to charge fares and freights at all come to a railroad company from the grant of the State, but the amount of such charges is also regulated by the State law, either by the charter of the company, or by legislative regulations, or by the general law that the charges shall be reasonable, and that is State law and not United States law. Where else but from the laws of the State does the railroad company get its right to charge any fares or freight at all? And since its being, its franchise, its powers, its right to charge, all come from the State, and are the creation of State law, how can it be contended that the State has no power of regulation over those charges, and over the conduct of the company in the transaction of its business whilst acting within the State and using its railroad lying within the bounds of the State. Omne majus continet in se minus. If the State created the company and its franchises, it surely may make regulations as to the manner of using them.

repugnant to the Constitution, and no more, as the exercise of it at a subsequent period. The regulation of charges is just as unconstitutional in a charter as in a general law.

To sum up the matter in a word; we hold it to be a sound proposition of law, that the making of railroads and regulating the charges for their use is not such a regulation of commerce as to be in the remotest degree repugnant to any power given to Congress by the Constitution, so long as that power is dormant, and has not been exercised by Congress. They affect commerce, they incidentally regulate it; but they are acts in relation to the subject which the State has a perfect right to do, subject always to the controlling power of Congress over the regulation of commerce when Congress sees fit to act.

It is evident from what has been said, that the dealing of a State with a railroad corporation of its own creation, in authorizing the construction and maintenance of its road and the charge of fares and freights thereon, is in its purpose a matter entirely aside from that kind of regulation of commerce which is obnoxious to the provisions of the Constitution. There is not a particle of doubt that it was the right of the State to prescribe the route of the plaintiff's road-it might be in a direction north and south, or east and west; it might be by one town, or by a different town, it was its right to prescribe how the road should be built, what means of locomotion should be used on it, how fast the trains might run, at what stations they should stop. It was its right to prescribe its charges, and to declare that they should be uniform, or if not uniform, how otherwise; this certainly was the right of the State at the inception of the charter, and every one of these things would most materially affect commerce, not only internal but external; and yet not one of them would be repugnant to the power of Congress to regulate commerce within the meaning of the Constitution.

It is only for the sake of convenience that the State lets out its railroads to private corporations. It might construct them itself. Suppose it had done so in this case; could not the State have instituted such rates of freight and fare as it pleased? Certainly it could. It might have made them uniform, as the present law requires them to be, or it might have made them discriminative between different places, and no one could have called it to account. Instructions in the form of laws, or in the form or orders made by a State board, might have been given to the superintendents of the road, acting in behalf of the State, to adopt the one course or the other. Could the agents of the State, acting under such instructions, have been interfered with by the judicial department on the ground of unconstitutionality? Certainly not; certainly not, unless discriminations were made to the prejudice of the citizens of other States, or of the products of other States.

Suppose the original charter of the railroad company in this case had contained precisely the provision against discriminating charges which is contained in the general law now complained of, could the company disregard the conditions of its charter, and defy the authority of the State? We think it clear that it could not. But if the State had the power to impose such a condition in the original charter, it must have the same power at any time afterward; for the exercise of the power in the original grant would be just as

The State of New York built and owns the Erio canal. Did any court ever attempt to control that State in its regulation of tolls on the canal, even though made for the purpose of affecting the relative movement of goods on the canal and the railroads of the State? We presume that no such attempt was ever made, or would be successful if made.

It is true, and this we concede, that if the laws of a State discriminate adversely to the citizens of products of other States, whether the railroads belong to the State or to private corporations, the courts might interfere on the ground of the repugnancy of such regulations to that freedom of commerce which Congress by its non-action on the subject has indicated shall exist. This has been frequently decided. Missouri, 91 U. S. 282; Brown v. Houston, 114 id. 622, 631, and cases there cited. But no such discrimination is made by the law in question.

Welton v.

We also concede that any taxes, duties, or impositions upon interstate commerce (that is, upon the commerce itself), carried on over the railroads of the State, would interfere with the freedom of such commerce, and would be repugnant to the presumed intention of Congress. This has frequently been decided. Crandall v. Nevada, 6 Wall. 35; State Freight Tax cases, 15 id. 232; Coe v. Erroll, 116 U. S. 517; and the authorities cited in the latter case. But the present is not a case of that kind, and has no semblance of likeness to it. All such discriminations, taxes, duties, and impositions are direct regulations and burdens upon the commerce itself, and come fairly within the exclusive prerogatives of Congress.

The distinction between such burdens and charges for service rendered is well exptained in the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 217, where Mr. Justice Field, delivering the unanimous opinion of the court, in relation to ferries says: "It is true that from the earliest period in the history of the government, States have authorized and regulated ferries, not only over waters entirely within

their limits, but over waters separating them; and it may be conceded that in many respects the States can no more advantageously manage such interstate ferries than the general government; and that the privilege of keeping a ferry, with a right to take toll for passengers and freight, is a franchise grantable by the State, to be exercised within such limits and under such regulations as may be required for the safety, comfort and convenience of the public. Still the fact remains that such a ferry is a means, and a necessary means, of commercial intercourse between the States bordering on their dividing waters, and it must therefore be conducted without the imposition by the States of taxes or other burdens upon the commerce between them. Freedom from such impositions does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons, in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any more than like freedom of transportation on laud implies such exemption. Reasonable charges for the use of property, either on water or land, are not an interference with the freedom of transportation between the States secured under the commercial power of Congress. *That freedom implies exemption from other charges than such as are imposed by way of compensation for the use of the property employed, or for the facilities afforded for its use, or as ordinary taxes upon the value of property."

* *

This subject in many of its aspects was considered by this court in the case of Baltimore & Ohio R. Co v Maryland, 21 Wall. 456. In that case, in a charter for constructing and operating a railroad from Baltimore to Washington, authority was given to the company to charge two dollars and a half for each passenger, and it was stipulated that the company should pay to the State one fifth of the whole amount received for the transportation of passengers on the road. The company sued for a return of the sums paid on this ac count, as being exacted by an unconstitutional law. It was insisted that the reservation was equivalent to the imposition of a tax on passengers, and therefore a restriction of free intercourse and traffic between different States-much of the travel being that of passengers coming from, or going to other States. The argument that the reservation of one-fifth of the passage money necessitated an increased charge upon the passenger was met by this court as follows. "Had the State built the road in question, it might to this day have charged two dollars and fifty cents for carrying a passenger between Baltimore and Washington. So might the railroad company under authority from the State, if it saw fit to do so. This unlimited right of the State to charge, or to authorize others to charge, toll, freight, or fare, for transportation on its roads, canals and railroads, arises from the simple fact that they are its own works, or constructed under its authority. It gives them being. It has a right to exact compensation for their use. It has a discretion as to the amount of that compensation. That discretion is a legislative, a sovereign discretion, and in its very nature is unrestricted and uncontrolled. * **The exercise of this power on the part of a State is very different from the imposition of a tax or duty upon the movements or operations of commerce between the States. Such an imposition, whether relating to persons or goods, we have decided States cannot make, because it would be a regulation of commerce between the States in a matter in which uniformity is essential to the rights of all, and therefore requiring the exclusive legislation of Congress. Crandall v. Nerada, 6 Wall. 42; State Freight Tax cases, 16 id. 232, 279. It is a tax because of the transportation, and is therefore virtually a tax on the transportation, and not in any sense a compensation therefor, or for the franchise

enjoyed by the corporation that performs it. The question is practically reduced to this: What amounts to a regulation of commerce between the States? This is often difficult to determine. In view however of the very plenary powers which a State has always been conceded to have over its own territory, its highways, its franchises, and its corporations, we cannot regard the stipulation in question as amount. ing to either of these unconstitutional acts. It is not within the category of such acts. It may incidentally affect transportation, it is true; but so does every bur den or tax imposed on corporations or persons engaged in that business. Such burdens however are imposed diverso intuitu, and in the exercise of an undoubted power."

But it is needless to multiply citations which establish or recognize the principles which govern the present case. The very point in question has been already expressly decided by this court. We refer to the case of Peik v. Chicago & Northwestern Ry. Co., 94 U. S. 164. That was a bill filed by the bondholders of the company to restrain the railroad commissioners of Wisconsin from enforcing a law of that State limiting the rate of charges for transporting passengers and freights on the railroads of the State. The bill, amongst other things, complained that the classes of freight established by section 3 of the act were different from those established by the laws of Illinois, Iowa, and Minnesota, for the transportation of freight upon the railroads of the same company in those States, and rendered it practically impossible to carry on the business of transporting freight from Wisconsin to either of those States; and that the 18th section (limiting the rates) was a regulation of interstate commerce. The act excepted from its operation the case of freight or passengers carried from one State to another State entirely through or across the State of Wisconsin. It did operate on freight and passengers carried from another State to any point within the State of Wisconsin, or from any such point to another State. The chief justice, in delivering the opinion of the court, states the precise question to be decided as follows. "These suits present the single question of the power of the Legislature of Wisconsin to provide by law for a maximum of charge by the Chicago and Northwestern Railway Company for fare and freight upon the transportation of persons and property carried within the State, or taken up outside the State and brought within it, or taken up inside and carried without." He then, after disposing of certain other questions relating to the consolidation of the company, with an Illinois company, disposes of the main question as follows: "As to the effect of the statute as a regulation of interstate commerce. The law is confined to State commerce, or such interstate 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 conWith 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." The law was sustained, and the bill of complaint was dis

cern.

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discussed in the cases immediately preceding, beginning with that of Munn v. Illinois, that no extended discussion of Peik's case was deemed necessary. All the justices who concurred in the opinion were entirely satisfied with it. The cases were all argued at the same time, or in reference to each other, and were considered together. But there stands the judgment of the court, and in our apprehension the judgment in the present case is directly opposed to it.

We have omitted to cite a number of cases corroborating the views we have expressed. The case of Taxes on Railroad Gross Receipts, 15 Wall. 284, is weighted with arguments and consideration in this direction. We would also refer to the cases of Osborne v. Mobile, 16 Wall. 422; Railroad Co. v. Fuller, 17 id. 560; Railroad Commission cases, 116 U. S. 307, 334, 335.

It is supposed that the decision in Hall v. De Cuir, 95 U. S. 485, supports the contention of the plaintiffs in error. We think not. What was that case? A statute of Louisiana, as construed by its courts, prohibited those engaged in the business of carrying passengers in that State (including those engaged in interstate commerce), from making any discrimination on account of race or color in the use of the accommodations of their conveyances-a direct regulation of commerce, and within the reason of the tax cases before referred to. A steamer which regularly plied between New Orleans and Vicksburg had a cabin specially set apart for white persons, and De Cuir, a colored person, being refused admission to that cabin, sued for damages. We held that the law (as above suggested) was a direct regulation of commerce and a burden upon it. It compelled the steamboat proprietor to place colored persons travelling from one place to another in Louisiana, in the cabin set apart for white persons, many of whom were bound to another State; and therefore in its operation was a regulation of interstate commerce. It was against the rule, that in the absence of action by Congress, commerce must remain free and untrammeled. By that rule the proprietor of the vessel was at liberty to adopt such reasonable rules and regulations for the disposition and comfort of passengers upon his boat, while pursuing its voyage, as seemed to him most for the interest of all concerned. The statute took away from him this power so long as he was within Louisiana.

We es

pecially distinguished the case from those of Munn v. Illinois; Peik v. R. Co., and the cognate cases, as belonging to a different category, and governed by different consideration, and the difference between them seems to us very apparent.

The chief justice, in delivering the opinion of the court, said: "There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States. The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it; for as has been often said, 'legislation may in a great variety of ways affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution.' Sherlock v. Alling, 93 U. S. 103; State Tax on Railway Gross Receipts, 15 Wall. 284. Thus in Munn v. Illinois, 94 U. S. 113, it was decided that a State might regulate the charges of public warehouses, and in Chicago, B. & Quincy R. Co. v. Iowa, id. 155, of railroads situate entirely within the State, even though those engaged in commerce among the States might sometimes use the warehouses or the railroads in the prosecution of their business." After referring to the cases of dams and bridges over navigable waters, and of turnpikes and ferries, the chief justice continued: "By such statutes the States regulate, as a matter of domestic concern, the instruments of commerce situ

ated wholly within their own jurisdictions, and over which they have exclusive governmental control, except when employed in interstate commerce. As they can only be used in the State, their regulation for all purposes may properly be assumed by the State, until Congress acts in reference to their foreign or interstate relations. When Congress does act, the State laws are superseded only to the extent that they affect commerce outside the State as it comes within the State." He then added: "But we think it may safely be said that State legislation which 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." The distinction here taken seems to us sound and to distinguish the present case from that of De Cuir.

In the Peik case, and others of like character, the State regulated the charges made upon an instrument of commerce (a railroad) situated within the State and under its jurisdiction-such charges being made by virtue of the State's authority; in the De Cuir case it attempted, as the law operated, to regulate the manner of carrying passengers on an instrument of commerce having no fixed location, but plying on navigable waters within and without the State; in other words, it attempted to regulate interstate commerce itself, directly in a matter in which it had no special prerogative to legislate.

Other cases are referred to by the plaintiffs in error in support of their contention; but we think that no case can be found which is not clearly distinguishable from the present on some or one of the grounds already referred to.

The inconveniences which it has been supposed in argument would follow from the execution of the laws of Illinois, we think have been greatly exaggerated. But if it should be found to present any real difficulty in the modes of transacting business on through lines, it is always in the power of Congress to make such reasonable regulations as the interests of interstate commerce may demand, without denuding the States of their just powers over their own roads and their own corporations.

Waite, C. J., and Gray, J., concurred.

INSURANCE-MARINE-CONCEALMENT BY AGENT.

ENGLISH COURT OF APPEAL, MAY 22, 88v.

BLACKBURN V. VIGORS.*

The plaintiff instructed a broker to effect for him a re-insurance upon an overdue ship: Whilst the broker was acting on behalf of the plaintiff he received information of a material fact tending to show that the ship was lost; the broker did not communicate this information to the plaintiff, and failed to obtain an insurance for him. Afterward the plaintiff, through another broker, effected a policy of insurance, lost or not lost, which was unwritten by the defendant. The ship had in fact been lost some time before the plaintiff tried to re-insure her, but neither the plaintiff nor the broker who effected the insurance knew of or concealed from the defendant any fact tending to show that the ship had been lost.

Held, by Lindley and Lopes, L. JJ., Lord Esher, M. R., dissenting, that the plaintiff could not recover upon the policy underwritten by the defendant.

*17 Q. B. Div. 553.

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