of railroads and locomotion by steam, land transportation has so vastly increased a sounder consideration of the subject has prevailed and led to the conclusion that Congress has plenary power over the whole subject. Of course the authority of Congress over the Territories of the United States, and its power to grant franchises exercisable therein, are, and ever have been, undoubted. But the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the West, traversing States as well as Territories, and employing the agency of the State as well as Federal corporations.

In Luxton v. North River Bridge Co. (153 U. S., 533) the foregoing excerpt was quoted with approval, and the court, among other things, said:

The Congress of the United States, being empowered by the Constitution to regulate commerce among the several States and to pass all laws necessary and proper for carrying into execution any of the powers specifically conferred, may make use of any proper means for that end.

It can not be doubted that under its power to regulate commerce Congress itself might have provided for the construction of railroads traversing the Mississippi Delta. If it had done so it would unquestionably have the power to give effect to its purpose in constructing such railroads; that is to say, it would have the power by any suitable means to prevent any obstruction to their operation. Congress may not only, under the power to regulate commerce, cause railroads to be constructed, but it may adopt as agents railroads constructed by individuals or corporations. This results from the power which Congress has to adopt any means which may reasonably be deemed necessary or proper to enable it to regulate interstate commerce. The act of July 24, 1866, which is section 5263 of the Revised Statutes, provides as follows:

Any telegraph company now organized or which may hereafter be organized under the laws of any State shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters or interfere with the ordinary travel on such military or post roads.

In Telegraph Co. v. Texas (105 U. S., 460) it was expressly held that a telegraph company which had accepted the restrictions and obligations indicated in this statute became an instrument of foreign and interstate commerce and a Government agent for the transmission of messages on public business. The exact language of the court is as follows:

The Western Union Telegraph Co., having accepted the restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of foreign and interstate commerce and of a Government agent for the transmission of messages on public business.

It thus appears that it has been distinctly held that instead of constructing itself the necessary facilities for the transaction of interstate commerce, it may make any private person or corporation its agent. Having made the Western Union Telegraph Co. an instrument of foreign and interstate commerce and a Government agent for the transmission of messages on public business, it held, in the case of Western Union Telegraph Co. v. Massachusetts (125 Ú. S., 530), that while the telegraph company was subject to taxation by the State of Massachusetts, that State could not interfere with or prevent its

discharge of its functions as an instrument of foreign and interstate commerce and as a Government agent for the transmission of messages on public business.

Referring to this case in the later one of Western Union Telegraph Co. v. Pennsylvania R. R. Co. (195 U. S., 565), the court said:

It enforced the right given by that act and gave to the telegraph company the protection of the national power and supremacy and differs only in the instance, not in the principal, declared in the Pensacola case.

In the case of United States v. Union Pacific R. R. Co. (160 U.S., 1) it was held that the act of 1866 was not only effective to prevent any interference by a State with the operation of telegraph companies which had accepted the provisions of that act, but that it also affected railroad companies so as to prevent them by contract from excluding from their roadways any telegraph company incorporated under the laws of the State that had accepted the provisions of that act, and desired to use their roadways for its line in such a manner as not to interfere with the ordinary travel thereon. In other words, a telegraph company accepting the provisions of that act, having become by virtue of it an instrument of foreign and interstate commerce and the agent of the Government for the transmission of messages on public business, can not be prevented, either by a State or by a railroad company, from discharging its functions. The laws of the United States when made in pursuance of the Constitution being supreme, they must be effective, no matter by whom questioned.

Congress has likewise and to the same effect constituted all railroad companies whose roads are operated by steam instruments of foreign and interstate commerce and agents of the Government for the transportation of mails, thus placing them in a similar attitude to that occupied by the Western Union Telegraph Co. as defined by the Supreme Court in the cases referred to. Section 5258 of the Revised Statutes is as follows:

Every railroad company in the United States whose road is operated by steam, its successors and assigns, is hereby authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, Government supplies, mails, freight, and other property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination. But this section shall not affect any stipulation between the Government of the United States and any railroad company for transportation or fares without compensation, nor impair or change the conditions imposed by the terms of any act granting lands to any such company to aid in the construction of its road, nor shall it be construed to authorize any other railroad company to build any new road or connection with any other road without authority from the State in which such railroad or connection may be proposed. And Congress may at any time alter, amend, or repeal this section.

The effect of this statute is to confer a most valuable franchise upon all of the railroad companies in the United States operated by steam. It confers a franchise which the States could not interfere with if they desired to do so, as clearly held in the case of Western Union Telegraph Co. v. Massachusetts (125 U. S.), above cited. Congress, therefore, has appointed all railroad companies in the United States whose roads are operated by steam, including, of course, those traversing the Mississippi Delta, instruments of foreign and interstate commerce and agents of the Government for the transportation of troops, Government supplies, and mails on their way from one State to another State.

Section 3964 of the Revised Statutes is in part as follows:

What are post roads?

The following are established post roads:

All the waters of the United States during the time the mail is carried thereon. All railroads or parts of railroads which are now or hereafter may be in operation. The effect of this statute is likewise to constitute all railroads or parts of railroads then or which might thereafter be in operation agents of the Government for the purpose of transporting the mails of the Government.

The Government conducts all postal affairs itself, but in doing this it must employ agents. Hence the enactment of this statute, by which all railroads or parts of railroads are constituted agents to assist the Government in the conduct of its postal affairs. Having

power, as we have shown, to appoint agents to assist it in the conduct of its business, it necessarily follows that it has the power to make these agencies effective, which includes, of course, the power to remove all obstructions which might affect their efficacy. So far as railroads are concerned, it must have the power to remove any obstructions which might interfere with their operation and so with their ability to serve the Government in the transportation of its troops, supplies, and mails.

The power of the Government to remove obstructions from interstate commerce is not confined to its conduct by water. It has the same power upon the land that it has upon the water. This is expressly declared in the Debbs case, reported in 158 United States, 564. The court quoted as follows from the opinion in Gilman v. Philadelphia (3 Wall., 713), to wit:

The power to regulate commerce comprehends the control for that purpose and to the extent necessary of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the Nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.

It will be noted that in this Philadelphia case it was declared that the power to regulate commerce includes the power to keep all navigable waters free from any obstruction interposed by the States or otherwise. That is to say, no matter what the obstruction is, under the power to regulate commerce it can be removed. In the Debbs case this court declared that the same rule precisely applies to artificial highways. After referring to the act of June 15, 1866, which is now section 5258 of the Revised Statutes, and which we have heretofore quoted, it said:

It is said that the jurisdiction heretofore exercised by the national Government over highways has been in respect to waterways the natural highways of the country and not over artificial highways, such as railroads, but the occasion for the exercise by Congress of its jurisdiction over the latter is of recent date. Perhaps the first act of such legislation is that heretofore referred to, of June 15, 1866, but the basis upon which rests its jurisdiction over artificial highways is the same as that which supports it over the natural highways. Both spring from the power to regulate commerce.

It thus declared that the basis upon which rests the jurisdiction of the Government over artificial highways is the same as that

which supports it over natural highways. This being so, it has the same power to remove obstructions from artificial highways engaged in interstate commerce or in the transmission of the mails that it has over natural highways, such as waterways. Upon this point the court said—

Up to a recent date commerce, both interstate and international, was chiefly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally concerned therewith. The fact that in recent years interstate commerce has come to be carried on mainly by railroads and over artificial highways has in no manner narrowed the scope of the constitutional provision, or abridged the power of Congress over such commerce. On the contrary, the same fullness of control exists in the one case as in the other, and the same power to remove obstructions from the one as from the other.

It will be seen that the court again said in terms that the same fullness of control exists as to interstate commerce carried on by railroads or other artificial highways which exists as to interstate commerce when carried on by water.

The court also said—

The National Government, given by the Constitution power to regulate interstate commerce, has by express statute assumed jurisdiction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highways under its control.

Still further, the court said

We have given to this case the most careful and anxious attention, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our conclusions, we hold that the Government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the National Government are not dormant, but have been assumed and put into practical exercise by the legislation of Congress; that in the exercise of those powers it is competent for the Nation to remove all obstructions upon highways, natural or artificial, to the passage of interstate commerce or the carrying of the mail.

It adjudged that Congress, under the power to regulate interstate commerce, and the power to establish post offices and post roads, may remove all obstructions to the passage of interstate commerce or the carrying of the mails, whether over natural highways or artificial highways. Of course, the court was not speaking of obstructions which a railroad company might itself remove. Obstructions of that nature it is required to remove as a part of its duties. If (as to which there can be no question) the flooding of the Mississippi Valley by the surplus waters of the Mississippi River obstructs interstate commerce and the transmission of the mails by means of the railroads running through the valley of the river, Congress has the power to remove that obstruction, and that obstruction can only be removed by confining the flood waters by means of levees. There is no limitation defining what obstructions can be removed and there is no limitation as to the means by which obstructions may be removed. If the method adopted for the removal of obstructions bears any just relation to the power of Congress, what it adjudges by law to be an obstruction and what it adjudges to be a suitable means of removing that obstruction, can not be questioned by the courts or otherwise.

The great extent of the Mississippi Valley has already been indicated. An enormous interstate commerce is now carried on between those who inhabit that valley and those residing in other States, and its capacity for developing still greater interstate commerce is such that at this time no fair limitation can be placed upon it. So as to the business of the Government with those residing in the valley in supplying them with mail facilities and in supplying those residing in other States with the necessary mail facilities for transacting their business with the inhabitants of the valley. The interstate commerce and postal affairs connected with the Mississippi Valley are so great that it may be truthfully said that they are matters of concern to the people of the Nation at large.

It is respectfully submitted that, disregarding entirely all questions as to the navigation of the Mississippi River and all questions arising from the statutes above referred to, conferring franchises upon railroad companies whose lines extend through the valley, and creating them post roads, by which they have been constituted agents of the Government, there must be the power in Congress, under the interstate-commerce clause, to remove the great obstruction to this enormous interstate commerce and this enormous postal business arising from the flood waters of the Mississippi River. In Gibbon v. Ogden (9 Wheat., 1), Chief Justice Marshall said

Commerce undoubtedly is traffic, but it is something more; it is intercouse. It describes the commercial intercourse between nations and parts of nations in all of its branches, and is regulated by prescribing rules for carrying on that business.

In McCail v. California (136 U. S., 104), the Supreme Court saidCommerce includes the fact of intercourse and of traffic and the subject matter of intercourse and traffic. The fact of intercourse and traffic, again, embraces all the means, instruments, and places by and in which intercourse and traffic are carried on, and, further still, comprehends the act of carrying them on at these places and by and with these means. The subject matter of intercourse or traffic may be either things, goods, chattels, merchandise, or persons.

In Mobile County v. Kimball (102 U. S., 691), the court said

Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transporting and transacting of business and property, as well as the purchase, sale, and exchange of commodities.

Although the effect of confining the flood waters of the Mississippi River may result in great financial benefit to the owners of lands and of other property in the Mississippi Valley, yet if the escape of the flood waters does seriously affect this enormous interstate commerce and this enormous postal business, there can be no question as to the power of the Government to preserve it and protect it from destruction, in toto at times, in parts of the Mississippi Valley, and partially with almost every flood, and if this protection can only be afforded by the construction of levees, the power of the Government to construct those levees for that purpose would seem to be beyond question.

If the Government has not this power, then this protection can not be afforded at all except to a very limited extent. The preservation of the valley from the devastation created by these floods calls for some definite system of levee construction which shall operate equally and with the same effect in all parts of the valley. Recognizing this