8 488. The clause last quoted gave rise to a great deal of discussion in congress before the days of railroads. The contest was over the construction of the term "establish." It was contended by Benton and others that it meant simply the designation of routes by which the mails should be conveyed. STORY, in his great work on the constitution, shows conclusively that the right to construct post roads is vested in congress. Its exercise has never been attempted in the case of railways, although the mail service is mainly conducted by rail. The objection to its exercise rests on a question of expediency, rather than an interpretation of the constitution. The nearest approach to an exercise of this reserved right, since the construction and final abandonment to the states of the Cumberland turnpike, was in the passage by congress of a general railway incorporation act. That statute applies, however, only to territories. It has never been called into operation, nor is it likely to be.1

§ 489. The first clause in the foregoing quotation from the constitution of the United States is suggestive of the origin of the present organic law of the nation, in distinction from the articles of confederation. The evils of a Union in which each part was greater than the whole, in point of actual authority, was first felt by the commerce of the country. Intercourse with foreign nations and between citizens of different states was seriously hampered by the sovereignty of the state, and the necessarily diverse exercise of that sovereignty. At the suggestion of the legislatures of

1 For a discussion of this subject of post roads, see 2 Story on the Constitution, chap. 17; Benton's Thirty Years in the Senate, vol. ii, 167.

the states of New York, Pennsylvania, Virginia, New Jersey and Delaware, a commercial convention was held at Annapolis, Maryland, commencing Sept. 11, 1786. The states named were represented, and no others. That convention, after a session of three days, embodied its conclusions in a report unanimously adopted, in which they said: "Deeply impressed, however, with the magnitude and importance of the object confided to them on this occasion, your commissioners cannot forbear to indulge an expression of their earnest and unanimous wish, that speedy measures may be taken to effect a general meeting of the states in a future convention, for the same and such other purposes as the situation of public affairs may be found. to require." The report concluded with the recommendation that all the states appoint commissioners, 'to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States."

66

490. No little discussion was had in the convention over the phrasing of the commercial clause of the constitution. It does not include any commerce which is entirely within the limits of one state. Every railroad forms a link in a national chain, and a shipment. from one point in a state to another point in the same state may, ultimately, go through several states; but it is none the less true that the strictly internal commerce of a state is under state, rather than national control.1 This rule has one generic exception: The bridging of a navigable river is not allowable without

1 Gibbons v. Ogden, 9 Wheat. 194; Brown v. Maryland, 12 Wheat. 446; Veazie o. Moor, 14 Howard, S. C. R. 568.

permission from congress.1 In some states this feature of national sovereignty is denied; but it is distinctly recognized in Illinois.

491. The completeness of congressional authority in some cases does not forbid the exercise of state control over all roads in numerous respects, provided state legislation does not conflict with the authority vested in and exercised by congress. Cooley on Constitutional Limitations cites a large array of cases to show that the state may exercise police authority. Very many of these citations are from the Illinois reports. Jeremy Bentham's definition of police power restricts it to a "system of precautions, either for the prevention of crime or calamities." In applying the doctrine to state control of railroads, Chief Justice REDFIELD adds: "there is also the general police power of the state, by which persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state." 2 Having given this enlarged definition of police power, the same learned jurist immediately added: "of the perfect right in the legislature to do which no question ever was, or upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should be made a serious question." 3 The

'The Daniel Ball, 10 Wallace, 558; Pennsylvania v. Wheeling and Belmont Bridge Co. 13 How. 518.

2

Thorpe v. Rutland and Burlington R. R. Co. 27 Vt. 140.

In support of this doctrine of state control Cooley quotes, among others, Galena and Chicago U. R. R. Co. v. Loomis, 13 Ill. 548; Ib. v. Appleby, 28 Ill. 283; Suydan v. Moore, 8 Barber, 358; Fitchburg R. R. v. G'd Junction R. R. and Depot Co. 1 Allen, 552.

reports of the different states and of the United States show that the police authority of the state has frequently been challenged, but always maintained, the only difference being in the range of meaning given to the term "police power."

$492. The Redfield definition of the term includes measures to prevent extortionate charges and unjust discrimination. The question on this subject remaining to be considered is this: Does the right extend to through freight, or is it limited to freight starting from a point within the state, and destined to a point without the same state? This issue of law has never been directly raised in the supreme court of. Illinois. Its immediate pertinence is due to inquiry growing out of the distinctive railway legislation of Illinois, as witnesses the following official circular.

$493. The Illinois railway law of 1873 went into effect July 1, and on the same day the Railroad and Warehouse Commissioners issued a circular setting forth their understanding of the statute in several relations, but more especially in its relations to interstate commerce. It reads as follows, viz.:

§ 494. State of Illinois, Office of Railroad and Warehouse Commissioners, July 1, 1873.-To the Public: Some important questions having arisen under the act of May 2, 1873, to prevent extortion and unjust discrimination, we deem it proper to make known to the public our construction of certain portions of the act. We would first direct attention to the first section, which declares that if any railroad corporation doing business in this state shall charge or receive more than a fair or reasonable rate of toll or compensation for the transportation of passengers or

freight, the same shall be deemed guilty of extortion, and upon conviction be punished by specific penalties. The avowed object of the statute is to prevent extortion as well as unjust discrimination. In making their rates of charges conform to the requirements of the third section, defining what would be prima facie evidence of unjust discriminations, the railroad companies must not ignore the first section forbidding extortion. In our judgment the rates of charges prior to this date have been in the main unreasonably high, and any increase thereof would be a clear violation of the law.

$495. The following are the questions above referred to: 1. Does the act apply to through freights as well as local freights? 2. Does the act admit of any discrimination in freight tariffs based upon the quantity shipped; or must the railroad companies, to comply with the act, adopt one uniform rate per hundred pounds, per ton, or per car load, regardless of the quantity or the amount of the shipment? 3. Where two or more railroads operated by different companies are so connected as to form in fact one continuous line, and shipments are made from a point on one line to a point on the other, may the charge be at the rate applicable to the distance over both roads, or at the aggregate of the local rates on each road? 4. Can railroad corporations hereafter issue excursion tickets? After due consideration of the questions we have arrived at the following conclusion:

§ 496. 1. The provisions of the act are applicable as well to through as to local freights, so far, at least, as to require that less should be charged for the transportation of domestic or local freights from one point