16

boat monopoly, was cited to the effect that the power of Congress over interstate commerce does not stop at state lines; that, if Congress has the power to regulate, that power must be exercised wherever the subject exists; and that every State has the right to participate in such commerce.1 And he held that this applied to internal commerce by rail as well as by water. A later decision by Justice Story which he quoted is perhaps less well known. Referring to the power of Congress over commerce that eminent judge said: "It does not stop at the mere boundary line of a State; nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It extends to such acts done on land as interfere with, obstruct, or prevent the free exercise of power to regulate commerce with foreign nations and among the States.''17

As to the post-roads clause, Justice Story was again turned to with approval, and a passage from his Commentaries was indeed apropos. "Let a case be taken," writes the judge, "when State policy or State hostility shall lead the legislature to close up or discontinue a road, the nearest and the best between two great States, rivals, perhaps, for the trade and intercourse of a third State; shall it be said that Congress has no right to make or repair a road for keeping open for the mail the best means for communication between those States? In other words, have the States the power to say how, or upon what roads, the mails shall and shall not travel? If so, then, in relation to post-roads, the States and not the Union are supreme.

97 18

Mr. Sumner concluded his argument by maintaining that the power to raise an army carried with it the right to authorize the agencies required for its transportation.

Full of significance for the historian is the statement made by this same senator in explanation of the relatively slight use as yet made of the commerce clause. He said that this power had always been used with peculiar caution, because of the extreme sensitiveness of the states concerning their sovereignty; but, he prophesied, "it still lives to be employed by an enfranchised government."

169 Wheaton, 196.

17 U. S. vs. Coombs, 12 Peters, 78.

18 Story, Commentaries, 2: sec. 1144.

Apparently the extreme caution continued in the Senate; for that body refused to follow the House and postponed the bill indefinitely by a vote of 14 to 21.19

PENNSYLVANIA OBSTRUCTS INTERSTATE RAILWAY PROJECT

In 1851, just before the passage of her general law, Ohio passed an act incorporating the Cleveland and Mahoning Railroad Company, and authorized it to build a railway from Cleveland to Youngstown and thence to the Pennsylvania boundary line. The same interests secured a charter from Pennsylvania in 1853, authorizing them to continue the road into Pennsylvania and on to Pittsburg. Thus the company, holding charters from two states, had a direct line from Cleveland to Pittsburg and thence by way of the Pittsburg and Connelsville line through Cumberland and the Point of Rocks to Washington. With funds all raised and sixty-seven miles of line completed, the Pennsylvania legislature sat and in May, 1864, repealed the charter for the Pennsylvania portion of the road, robbing it of its eastern terminus. Though there was some pretext of an expired time limit, the true reason is doubtless to be found in the machinations of the Pennsylvania Central railway company, which company occupied a position of control in the state not dissimilar to that held by the Camden and Amboy in New Jersey; for we are told that when a representative from the Cleveland and Mahoning visited the Pennsylvania legislature to secure redress he was referred to the railway president (!) who informed him that the charter might be restored if he would run the Ohio road so as to connect with the Pennsylvania Central and so turn its traffic into that channel.20 Not choosing to do this the Cleveland and Mahoning, like the Raritan and Delaware Bay, turned to Congress for relief.

10 Ibid., p. 1394. 15 being absent. The bill was first amended as follows: "That no citizen of the United States shall be excluded from travel upon any railroad or navigable water within the United States, nor from any meeting. houses, churches, or hotels, on account of or by reason of any State law or municipal ordinance, or of any rule, regulation, or usage of any corporation, company, or person whatever;" and a fine of not less than $500 or imprison. ment of not under six months was to be the penalty. 20 Cong. Globe, 1865-66, p. 2922.

THE HOUSE VOTES TO BREAK PENNSYLVANIA OBSTRUCTION

At the session of Congress following the Senate's refusal to act in the case of the Camden and Amboy, and some two years after the vote of the House to prevent such monopolies, an Ohio representative, Mr. Garfield, introduced a bill to afford the desired relief. This bill authorized the Cleveland and Mahoning to continue and construct its railway from the village of Youngstown to and into the state of Pennsylvania and thence by the most advantageous and practicable route to Pittsburg, and established it as a military, postal, and commercial railway of the United States. It provided that the rights of the company should be guaranteed to it by the Congress of the United States, and in case of litigation it should have recourse to the federal courts.

The usual arguments were brought against the bill by Mr. LeBlond (0.). He stated his fear lest the measure should become a stepping stone to the formation of great congressional incorporations. The bill seemed to him to strike down the rights of the states, and to be an entering wedge of centralized government. And he accused Mr. Garfield of making use of the extensive employment of the military power during the past five years to incorporate a provision reserving to the government power to use the road for military and postal purposes, and so justify an otherwise indefensible measure.

Mr. Moorhead (Pa.) and Mr. Garfield both thought Congress should interfere, the latter stating his belief that the time had come for the general government to use the power clearly vested in it under the right to regulate commerce among the states, and not to allow states to block the free intercourse necessary to industrial growth and political unity.

The bill passed the House 77 to 41, 65 not voting. It does not appear to have been brought up in the Senate.

A similar bill concerning the Pittsburg and Connelsville railway was introduced about this time22 but failed to pass the House. This company had evidently taken its case to the United

1 Ibid., p. 2903.

Ibid., p. 2902.

States circuit court which declared the repeal of its charter to be unconstitutional. Obstructive and harrassing litigation was then begun in the state courts.23

BILL TO FACILITATE COMMUNICATION AMONG THE STATES PASSED: 1865

All during the preceding debates House bill number 11, entitled "A bill to facilitate commercial, postal, and military communication among the several states," had been pending. Introduced by Mr. Garfield (O.) it was referred to the House committee on commerce and early in the session was reported back with the recommendation that it do pass.2*

The wording of the bill was practically identical with the one concerning the Camden and Amboy, passed by the House in 1864.25 It authorized any steam railway to transport passengers and freight on their way from one state to another state, and receive compensation therefor. Nothing new seems to have been brought up in opposition to the bill. It was recognized that while it was general in its terms it was directed to conditions in New Jersey, Pennsylvania, and Maryland. In the House the bill was ordered to be engrossed and read a third time by a vote of 93 to 51, 38 not voting, and was then passed unanimously.

In the Senate the bill was debated at some length and important amendments were incorporated. As these amendments entirely altered the scope of the bill and throw much light on the railway-regulation ideas of the Senate it will be well to give them attention. Mr. Clark (N. H.) was their author. He first moved to strike out the word "connection" from the list of transportation agencies to be regulated, in order to prevent the act being so interpreted as to give one railway the right to operate over another one connecting with it. The amendment was agreed to without apparent opposition.26 Yet today we think it right that railways be compelled to join and pro-rate,

Ibid., p. 2903 ff.

24 Ibid., p. 82.

25 Above, p. 215 f.

26 Ibid., p. 2870.

and the amendment would certainly weaken the act by leaving it possible to refuse through connections.

Mr. Clark's next amendment provided that no new railway or connection should be built without the consent of the state in which it was to lie. Meeting with some opposition, Mr. Clark asked if it were the intention to authorize anyone to build a road within a state without that state's consent, and Mr. Chandler (Mich.) replied that this was not the intention; he explained the object of the bill to be "to compel any state to permit the traffic of other states to pass through it, if there be an open channel." The amendment was passed by a vote of 24 to 15.

Now Mr. Chandler was chairman of the committee on commerce, but his statement of the meaning of the bill varied decidedly from that of some of his colleagues and from that attached to it by the House. Mr. Sherman (O.) complained bitterly that the bill was being shorn of its chief feature.27 He had wanted additional powers conferred upon certain railway companies in order to facilitate commerce among the states; but the bill, as amended, gave no powers not possessed under state charters. Ohio and the West were being blocked in the effort to market their produce by the state of Pennsylvania. There had been almost a little war in the effort to get through Erie, 28 and the Pennsylvania Central was the only route through the state.

Mr. Sumner (Mass.) also regretted the amendment, but thought the bill better than nothing in that it attacked the monopoly of New Jersey, "which was in view when the bill was presented." It would also furnish a precedent for future. action. Mr. Howe (Wis.) was perhaps most radical of all in his argument for the power of Congress. Indeed, being asked if Congress had power to regulate tolls on commerce he replied, "that we have the power to regulate tolls in some way, if it be necessary. I have no more doubt than I have of our right to make appropriations," thus taking advance ground on the question of rate regulation. He held that Congress had the power to regulate commerce on the railways of New Jersey and

Ibid., p. 2871.

* See Spearman, Strategy of Great Railroads, pp. 277-287.