tained in the "Act to Regulate Commerce," approved February 4, 1887, creating the Interstate Commerce Commission.

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did not on said 9th day of October, 1890. nor shortly prior thereto, or since, up to the time of the commencement of this suit, run daily, both ways or either way, over said road through the village of West Cleveland, three regular trains nor more than one regular train each, carrying passengers, which were not engaged in interstate commerce, and that did not have upon them passengers who had paid through fare, and were entitled to ride on said trains going in the one direction from the city of Chicago to the city of Buffalo, and those going in the other direction from the city of Buffalo through said states to the city of Chicago; that on or about the said day the defendant operated but one regular train carrying passengers each way, that was not engaged in carrying such through passengers; and said train did stop at West Cleveland, on the day aforesaid, for a time sufficient to receive and let off passengers; that the through trains that [328] passed through West Cleveland on the said day were train No. 1, limited express with two express cars, one coach, and three sleepers, from New York to Chicago; train No. 11, fast mail, with five United States mail cars, one coach, and sleeper, from New York to Chicago; train No. 21 had one United States mail car, two baggage and express cars, four coaches, and one sleeper, from Cleveland to Chicago (these were western trains); that the eastern trains were limited express No. 4, with one baggage and express car and three sleepers, from Chicago to New York; train No. 6, with one baggage and express car, three coaches, and two sleepers, from Chicago to New York; train No. 24, with one United States mail, two baggage and express cars, and seven coaches, from Chicago to Buffalo; train No. 14, with three United States mail cars and one sleeper from Chicago to New York. That the average time of delay necessarily required to stop a train of cars and sufficient time to receive and let off passengers would be three minutes; and that the number of cities and villages in the state of Ohio, containing three thousand inhabitants each, through which the aforesaid trains of the defendant passed on said day, were thirteen."

*The theory on which passenger trains to[329) traverse several states, or the entire continent, are prepared, is necessarily and widely different from that followed in making up ordinary trains to do a wayside business. There must be provision for sleeping at night and for furnishing meals. In order that each and every passenger may receive the accommodation for which he pays, the seats are sold in advance and with reference to the number of through passengers. To enable such trains to maintain the speed demanded, the number of the cars for each train must be limited, and they are adver tised and known as "limited" trains. A traveler purchasing tickets on such trains has a right to expect that he will be carried to his journey's end in the shortest possible time consistent with safety. The railroad companies compete for business by holding out that they run the fastest trains and those most certain to arrive on time. A company which by its own regulations or under coercion of a state legislature, stopped its through trains at every village, would soon lose its through business, to the loss of the company and the detriment of the traveling public.

Nor must the necessity of the speedy transit of the United States mails be overlooked. The government has not thought fit to build and operate railroads over which to transport its mails, but relies upon the use of roads owned by state corporations operating connecting roads. And it appears, from the findings in this case, that the defendant's through trains are engaged by the govern ment in the transportation of its mails. The business, public and private, that depends on hourly and daily communication by mail, is enormous, and it would be intolerable if such necessary rapidity of intercourse could be controlled and trammeled by legislation like that in question.

It was pointed out in Hall v. De Cuir that, although the statute of Louisiana, which sought to regulate the manner in which white and colored passengers should be carried, was restricted by its own terms to the limits of the state, yet that such regulation necessarily affected steamboats running through and beyond the state, because such regulations might change at every state

*A similar but much greater inconvenience[330) would be occasioned by attempting by state legislation to interfere with the movements of through trains. If, for instance, and as is often the case, the through trains were full of through passengers, there would be no advantage to local travel for them to stop at the way stations, for there would be no room or accommodation for the occasional passengers. Nor would that difficulty be obviated by attaching to each train coaches for use at the way stations. Such additional coaches would impede the speed of the through trains and interfere with the business of the local trains.

In Wabash, St. L. & P. Railway Company

It is fallacious, as I think, to contend that the Ohio legislation in question was enacted to promote the public interest. That can only mean the public interest of the state of Ohio, and the reason why such legislation is pernicious and unsafe is because it is based upon a discrimination in favor of local interests, and is hostile to the larger public interest and convenience involved in interstate commerce. Practically there may be no real or considerable conflict between the public interest that is local and that which is general. But, as the state legislatures are controlled by those who represent local demands, their action frequently results in measures detrimental to the interests of the greater public, and hence it is that the people of the United States have, by their Constitution and the acts of Congress, removed the control and regulation of interstate commerce from the state legislatures. Countenance seems to be given, in the opinion of the majority, to the contention that the power of Congress over the regulation of interstate commerce is not exclusive, by the observation that "the plaintiff in error accepted its charter subject necessarily to the condition that it would conform to such reasonable regulations as the state might, from time to time, establish, that were not in violation of the supreme law of the land. In the absence of legislation by Congress, it would be going very far to hold that such an enactment as the one before us is in itself a regulation of interstate commerce when applied to trains carrying passengers from one state to another." [334] *But it has already been shown that Congress has legislated expressly in relation to interstate trains and railroads, has made rules and regulations for their control, and has established a tribunal to make other rules and regulations.

Besides, as was observed by Mr. Webster, in his argument in Gibbons v. Ogden, 9 Wheat. 17 [6: 27]:

"The state may legislate, it is said, when ever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? It has done all that it deemed wise; and are the states now to do whatever Congress has left undone? Congress makes such rules as in its judgment the case requires, and those rules, whatever they are, constitute the system. All useful regulations do not consist in restraint; and that which Congress sees fit to leave free is a part of the regulation as much as the rest."

Attention is called to the fact that in the cases of Hall v. De Cuir, Wabash, St. L. & P. Railway Company v. Illinois, and Illinois C. R. R. Company v. Illinois, there were no specific regulations by Congress as to providing separate accommodations for white and black passengers, as to rates of freight to be charged on interstate commerce, or as to stopping through trains at prescribed places; yet legislation by the states on those subjects was held void by this court as a trespass on the field of interstate commerce.

"The power of Congress to regulate commerce among the several states when the subjects of that power are national in their nature is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states." Re Rahrer, 140 U. S. 545 [35: 572].

Justices Brewer, White, and Peckham concur in this dissent.

Mr. Justice White dissenting:

The statute is held not to be repugnant to the Constitution of the United States, because it is assumed to be but an exercise of[335] the lawful police power of the state, providing for the local convenience of its inhabitants. On this hypothesis the statute is held valid, although it is conceded that it indirectly touches interstate commerce and remotely imposes a burden thereon. To my mind the Ohio statute, however, does not come within the purview of the reasoning advanced to support it, and therefore such considerations become irrelevant, and it is unnecessary to form any judgment as to their correctness.

My conception of the statute is that it imposes, under the guise of a police regulation for local convenience, a direct burden on interstate commerce, and, besides, expressly discriminates against such commerce, and therefore it is in conflict with the Constitution, even by applying the rules laid down in the authorities which are relied on as upholding its validity. Now, what does the statute provide? Does it require all railroads within the state to operate a given number of local trains and to stop them at designated points? Not at all. It commands railroads, if they run three trains a day, to cause at least three of such trains to be local trains, by compelling them to stop such trains at the places which the statute mentions. It follows, then, that under the statute one railroad operating in the state may be required to run only one local train a day and to stop such train, as the statute requires, and another railroad reaching exactly the same territory and passing the same places may be required to operate three trains a day and make the exacted stops with each of such trains. That is to say, although the same demands and the same

local interest may exist as to the two roads, upon one is imposed a threefold heavier burden than upon the other. That this result of the statute is a discrimination it seems to me, in reason, is beyond question. If, then, the discrimination is certain, the only question which remains is, Is it a discrimination against interstate commerce? If it is, confessedly the statute is repugnant to the Constitution of the United States. Whence, then, does the discrimination arise and upon what does it operate? It arises alone from the fact that the statute bases its requirement, not upon the demands of [336]local convenience, but upon the volume of business done by the road, since it requires the road operating three trains to stop three as local trains, and the road operating one train to stop only one. But the number of trains operated is necessarily dependent upon the amount of business done, and the amount of business embraces interstate commerce as well as local business. But making the number of local trains dependent upon the volume of business is but to say that if a railroad has enough interstate business, besides its local business, to cause it to run one local and two interstate commerce trains cach way each day, the increased trains thus required for the essential purposes of interstate commerce shall be local trains, while another railroad which has no interstate commerce, but only local business requiring but one train a day, shall continue only to operate the one local train.

While the power of the state of Chio to direct all the railroads within its territory to operate a sufficient number of local trains to meet the convenience of the inhabitants of the state may be, arguendo, conceded,-although such question does not arise in this case, and is not, therefore, necessary, in my opinion, to be decided,-that state cannot, without doing violence to the commerce clause of the Constitution of the United States, impose upon the railroads operating within its borders a burden based, not upon local convenience, but upon the amount of interstate commerce business which the roads may do, thereby causing every interstate commerce railroad to have a burden resting upon it entirely disproportioned to local convenience, and greatly more onerous than that resting upon roads doing a local business, and which have not a sufficient interstate business to compel them to operate three trains. To answer this reasoning by saying that the statute does not compel roads to operate the three trains and stop them, since it only compels them to stop them if they operate them, is to admit the discrimination, and to state the fact that the duty is not made by the statute dependent upon the local convenience, but upon the whole volume of business, which of course, therefore, includes interstate commerce business.

refuses the conclusion that the law directly considers local convenience, and only indi rectly and remotely affects interstate commerce, when the reverse, it seems to me, is patent on the face of the statute. The repugnancy of the statute to the Constitution of the United States is shown by the principle decided by this court in Osborne v. Florida, 164 U. Š. 650 [41: 586]. In that case the state of Florida imposed a license on the business of express companies. In construing the statute the supreme court of the state held that it applied only to business done solely within the state, and not to business interstate in its character. This court, in reviewing and affirming the decision of the state court, said that as construed by the Florida court the statute was not repugnant to the Constitution, because it applied to business done solely within the state, and that the contrary would have been manifestly the case if, for the purpose of taxation, the state had taken into consideration the whole volume of business, including that of an interstate character. Now, if a taxing law of a state is repugnant to the Constitution because it operates upon the whole volume of business, both state and interstate, a law of the character of that now under consideration, which operates upon the whole volume of business of a railroad, state and interstate, is equally repugnant to the Constitution of the United States.

Whether in the enactment of the statute it was intended to discriminate is not the question, for, whatever may have been the intention of the lawmaker, if the necessary effect of the criterion established by the law is to cause its enforcement to produce an unlawful discrimination against interstate commerce by imposing a greater burden on the roads engaged in such commerce than upon other roads which do a purely local business, the statute is, I think, repugnant to the Constitution of the United States, and should not be upheld.

For these reasons, without mearing to imply that I do not assent to the conclusions stated by my brethren who have also, *on [338] other grounds, dissented, I prefer to place my dissent on what seems to me the discrimination which the statute inevitably creates.

M. J. NUGENT, Superintendent of the Territorial Prison of the Territory of Arizona, Appt.,

v.

STATE OF ARIZONA IMPROVEMENT

COMPANY.

(See S. C. Reporter's ed. 338-347.) Evidence of execution of a bond--mandamus against public officer.

Where a case was heard upon the pleadings without any evidence except a written contract between the parties, a recital in the contract that a certain bond was executed is not evidence of its execution sufficient to overcome an averment in the answer that the bond was not executed.

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