the Granger Cases, the result would have been the same, so far as the power of Congress was concerned, because it was shown that the boats were actually carrying goods between the States, and this fact would support the power of Congress, which had acted as to steamboats so engaged. This was plainly intimated, if not decided. The power of Congress to regulate such an instrumentality of commerce is practically unlimited, because it may reach the commerce itself as well as its agencies; wherefore, there is no need to look to the character of the regulation in determining the power, but only to the character of the commerce. But when we turn to the power of the States, we must necessarily scrutinize both. The definition of inter-State commerce, as given in these cases, does not change; it is fixed whether Congress has acted or has not acted, and the real question, as to the States, always is twofold, does the proposed law act upon the commerce itself, or does it act only on the instrumentality? If the first, it is always void; if the second, its validity depends on the circumstances. Here lies the fallacy of this and all legislation, which overlooks the not always broad distinction between regulating the commerce itself and its instrumentalities, and we have the authority of the supreme court in the next case cited for saying it is often disregarded. We quote again :

"Commerce with foreign countries and among the States, strictly considered, consists of intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country, and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore, permissible. Language affirming the exclusiveness of the great power over commerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxiliary to commerce." Mobile Co. v. Kimball, 102 U. S. 691, 702.

Can anything be more explicit than this, and does it not apply to this legislative act? The court has repeatedly said, as here, that the transportation of the commodity exchanged is a part of the commerce itself; and if the transit be between two or more States, it is, ex vi termini, inter-State transportation and inter-State commerce. Being so, does not any law which controls the price of the transportation, or restricts it under pains and penalties, affect the commerce itself, and this as directly as possible? It is a delusion to call such a law a regulation of the instrumentality, and the delusion is not concealed by naming the process a regu lation of railroads or corporations or monopolies, nor yet by decrying these as instrumentalities which need regulation, as no

doubt they often do in this regard. It is the instrumentality by which we reach that intangible thing called commerce, and in that sense the instrumentality, and not the commerce, is always regulated; but this confuses the distinction above adverted to by the supreme court.

To illustrate again, take a person engaged in inter-State commerce as a carrier on ocean, river, railroad, or highway. If he or his agents be found within the limits of any State violating its laws, he may be arrested and imprisoned; if his property fall under condemnation of the law, it may be seized, although engaged in the commerce; he, his agents and property, and even his receipts for the freight, may be taxed, as well as any special franchise or privilege enjoyed by him, if these taxes be not disguised regulations of commerce. State Tax Gross Receipts Case, 15 Wall. 284; Memphis & L. R. R. Co. v. Nolan, 14 Fed. Rep. 532. By these and numerous other laws the commerce may be incidentally affected, even to destruction in some cases, through operation upon the instrumentality or agency alone; and where the carrier is a corporation, there are extended fields for such operation.

But if the carrier in the illustration is engaged in domestic commerce, where the State can act directly upon it, the capacity for affecting the articles of inter-State commerce which may fall into his hands to be locally transported is increased; but the effect on inter-State commerce is still incidental, and although the particular regulation ceases to act on the instrumentality alone, but acts directly on the State commerce itself, yet the distinction between a direct action upon the inter-State commerce, and an incidental effect upon it through action upon the instrumentality, remains obvious; for, in such a case, the domestic transportation is itself only an instrumentality, agency, or auxiliary of the inter-State commerce, which, until Congress act, remains subject to State control. This distinction must be observed in determining what is incidental only in its action on inter-State commerce and what is direct; and it runs through all the cases. But when a plain and unmistakable case of direct action on the commerce itself is presented,—as all regulations or restrictions on the contract of transportation must be,-all that need be looked to is the character of the commerce so regulated, and if it be inter-State transportation, as defined in the cases cited, regulation or restriction by the State is void. If, for example, as in Hall v. DeCuir, 95 U. S. 485, the State, exercising its power to secure equal civil rights in the matter of transportation, undertakes to prescribe the privileges a passenger shall enjoy, it is void, although Congress has not acted upon that matter, and the passenger be going only between points in the same State. If, again, the State undertake, beyond the scope of vital necessity, to exclude or regulate the entrance of diseased cattle

into the State, it is void. Railroad Co. v. Husen, 95 U. S. 465. And if, under the disguise of an inspection law-the power of inspection being especially reserved to the States in the federal constitution-the State attempt to exclude or regulate the introduction of passengers thought to be paupers, criminals, etc., it is void. People v. Co. Gen. Transatlantique, 107 U. S. 59; s.c., 2 Sup. Ct. Rep. 87. And these examples might be multiplied.

It does not advance the argument to invoke the police power of the State to support this act of the legislature; for, with noticeable emphasis, it is held in the last two cases cited, as everywhere, that neither in the exercise of its police nor any other power, can the State make a law which is in effect a regulation of inter-State commerce. Nor does an appeal to the power of the State over the corporations of its own creation strengthen the argument; for it cannot, by the charters themselves, make regulations of inter-State commerce. Such regulation is as void there as elsewhere. Telegraph Cases, 96 U. S. 1. If control over the rates be desired by the State under all circumstances, it might possibly secure it by prohibiting its corporations from engaging in inter-State commerce in any other way than as domestic roads, and confining them absolutely to the business of transportation within the State, if this would not of itself be an invalid prohibition as a discrimination against inter-State commerce. Possibly, when incorporators ask a grant of franchises to enable the company to engage in inter-State commerce, and, in consideration of the grant, agree not to charge more than a certain maximum, or to establish a certain schedule of rates for the transportation of commodities carried in such commerce, they would be bound by it; but not, be it remembered, because there has been a lawful exercise by the State of a municipal power to prescribe such rates,-for that would be none the less a regulation of inter-State commerce, and as such void,-but because the incorporators, as owners, with power, in the absence of paramount regulation by law, to prescribe their own rates, have established these. Consensus facit jus.

It is obvious, however, in such a case, that the contract cannot be subsequently changed qua contract without the consent of both parties, and the remedies for its violation would be those available for a breach of the contract; and where, in the absence of congressional legislation, the consent of the carrier is wanting to any change in the charter, it is inoperative to bind him, not so much because the legislature cannot impair the obligation of a contract as because, without his consent as owner, there can be no regulation at all by State legislation. It being in such case a matter of contract simply, and not of municipal law to regulate the rates, there can grow out of it no enlarged power over inter-State commerce, whatever else may grow therefrom. The act qua a regulation of 'inter-State commerce is as invalid in the charter of a transportation

company as elsewhere in any statute, and necessarily as invalid in any subsequent statute, no matter how full the reservation of power over the charter may have been made. We need not say that, as to the power to regulate the domestic or local commerce of the company chartered, other principles may come into play. There is no doubt that the fact that our railroads, until recent years, and before the day of consolidations, combinations, trunk lines, and continuous rails were regarded as purely local institutions, beginning and ending within the boundaries of a single State, and the further fact that they were all owned by corporations whose migratory capacity was limited and almost denied, have done much to intensify the notion of their still being mere local agencies of commerce. But by active State legislation had for the purpose they have now, for the most part, become continuous avenues of commerce among the States, sweeping over State lines as easily as the Mississippi River rolls along them, and stretching quite as far. We do not see why this fact should not have the same influence it had in Hall v. De Cuir, supra, and the other cases, and which was suggested by Mr. Justice Miller in Gray v. Clinton Bridge, 7 Amer. Law Reg. (N. S.) 149.

The supreme court of Iowa denied validity to the law of that State on the same ground we take, as did also the circuit court of the United States for that State. Carton v. Illinois Cent. R. Co., 6 Am. & Eng. R. R. Cas. 305; Kaeiser v. Illinois Cent. R. Co., infra. The case of Georgia R. R. v. Com'rs (not yet reported), did not touch this question, nor does the case in the circuit court of the United States for that State mention it. Tilley v. Railroad Com'rs, 4 Woods, 427; s. c., 5 Fed. Rep. 641.

The scope and extent of the principle we are enforcing with the distinctions we have endeavored to point out between the characteristics of federal power over commerce between the States, and the domestic power of the State over the instrumentalities thereof found within its borders, find an illustration in the power of the federal congress, on the one hand, over canals owned and constructed by the State itself, and wholly within it, and on the other, of the State legislature over ships and watercraft in the establishment of liens for domestic supplies furnished in the home port. In re Boyer, 3 Sup. Ct. Rep. 434; The B. & C., 18 Fed. Rep. 543; Escanaba Co. v. Chicago, 107 U. S. 678: s. c., 2 Sup. Ct. Rep. 185; The Lottawanna, 21 Wall. 558; The Illinois, 2 Flippin, 383.

It is not necessary to go into any more elaborate examination of the cases in the supreme court on this particular subject of interState commerce, for we are relieved of that necessity by an eminent writer, who has, by his thorough and superior authorship, distinguished himself above the mere book-makers of this day. He has carefully examined and classified the cases in a useful manner, and

evidently laments that he cannot find in the rulings of the court any larger jurisdiction for the States over this subject of inter-State commerce than he thinks they establish. The cases since Mr. Pomeroy wrote will be cited at the end of this opinion for convenience of consultation. 4 South. Law Rev. (N. S.) 257. See, also, 7 South. Law Rev. 377; 3 South. Law Rev. (O. S.) 656; 13 Amer. Law Reg. (N. S.) 1, 185; 23 Amer. Law Reg. 81; 12 West, Jur. 17; 12 Cent. Law J. 194; Pierce, R. R. 468.

The whole list, from Gibbons v. Ogden, 9 Wheat. 1, and Brown v. Maryland, 12 Wheat. 419, to the latest, point with reasonable certainty to the line between valid and invalid legislation by the States. The Granger Cases must take their places in this line and conform to it, for there is not the least indication of any purpose to overrule the other cases, and an abundant manifestation in subsequent cases of adherence to them. They show that the States may tax, inspect, police, and in other abundant ways, by the exercise of any kind of power they possess, regulate the agencies and instrumentalities of inter-State commerce; they may dig canals, build railroads, improve rivers and harbors, establish ferries, build wharves, construct dams and bridges, and control pilotage; or they may authorize persons and corporations to do these things, and regulate them after they are constructed or established; but neither in their taxation, their inspection, their policing, or other exercise of power, can they by their regulations act directly on the commerce, as these cases define it, between the States. As to that, until congress acts, the commerce must be free.

We do not overlook the argument that this act leaves the carriers free to charge what they please, so long as it is not nnreasonable and unjust. Nevertheless it prescribes regulations for determining what is unreasonable and unjust, based on an assumed power over the subject which we have endeavored to show does not exist. The character of the regulation is immaterial where you cannot regulate at all. Carriers cannot charge more than is reasonable and just, but if there be needed any legislation to more effectively determine what is unreasonable and unjust, and to prevent discrimination, it must come from congress in cases like this. We hold, without the least hesitation, after this examination of the subject, that an act of the legislature which attempts, as this does, to regulate, no matter how, all transportation over the railroads in this State, and to revise all tariffs of charges for transportation over those roads, is, so far as it relates to the plaintiffs in these cases before us, an attempt to control the compensation to be charged by them for the transportation of commodities and persons in transit between two or more States, for that portion of the route lying within this State, and therefore invalid as a regulation of inter-State commerce, acting, as it does, in the most direct way possible on that commerce itself. This act makes no discriminations whatever