to another within this state, than the sum charged for the transportation of through or foreign freights the same distance within the state, and for its transportation from or to a point without the state. Thus, the charges from a point west of the state to a point within the state must not be the same as, or less than, the charges from the west line of the state over the same road to the same point of destination. So the charges from a point within the state to a point east of the state must not be the same as, or less than, the charges from the same point of departure over the same road to the east line of the state. So, also, the charges from a point west of the state to a point east of the state must not be the same as, or less than, the charges over the same road from the west line to the east line of the state. The general principle is that the charges for any distance within this state must not be the same or greater than the charges for a greater distance.

§ 497. 2. A reasonably less rate may be charged per one hundred pounds, per ton, or per car, where large amounts of freight are shipped by the same person, than where small shipments are made, without violating the act. Discriminations of this character, as upon fair business principles, were just and reasonable before the passage of the act; are not prohibited thereby, but seem to be recognized therein by the words "like quantity" frequently occurring in the third section of the act.

$498. 3. Where two or more railroads are owned and operated by different companies, and are connected so as to form in fact one continuous line, and either of such companies receives freight upon its road to be

shipped to some point upon the other road, the same may be treated for purposes of such shipment as one entire line, and the same rate may be charged as if one company owned the road upon which the freight was shipped for the entire distance, instead of charging the aggregate of the local rate on each road for the distance shipped thereon.

§ 499. 4. The act expressly provides that nothing therein contained shall be so construed as to prevent railroad corporations from issuing commutation, excursion, or one thousand mile tickets, as the same hitherto have been issued by such corporation.

H. D. COOK,

D. A. BROWN,

JOIN M. PEARSON,

Commissioners.

$500. The limitation of state control over railway commerce was discussed in some of its phases by the supreme court of the United States in the case of Reading R. R. Co. v. Pennsylvania. The right of a state to tax gross receipts of railroad companies was affirmed. The receipts may be made up in part of business belonging under the designation of commerce between the states; but the tax would not, on that account, be a regulation of inter-state commerce.1 In the same decision the court held that a statute of a state imposing a tax upon freight, taken up within the state and carried out of it, or taken up without the state and brought within it, is repugnant to that provision of the constitution of the United States which ordains that "congress shall have power to regulate

commerce with foreign nations and among the several states, and with the Indian tribes."

§ 501. This subject was passed upon again by the same court in another, yet substantially the identical case, Philadelphia and Reading R. R. Co. v. Pennsylvania. The validity of the tax mentioned in the foregoing section was in issue. Omitting so much of the opinion as is irrelevant in this connection, we have the following as the latest utterance upon the subject of commerce between states by the only court which is competent to make an authoritative declaration thereupon:

§ 502. If, then, this is a tax upon freight carried between states, and a tax because of its transportation, and if such a tax is in effect a regulation of interstate commerce, the conclusion seems to be inevitable, that it is in conflict with the constitution of the United States. It is not necessary to the present case to go at large into the much debated question whether the power given to congress by the constitution to regulate commerce among the states is exclusive. In the earlier decisions of this court, it was said to have been so entirely vested in congress, that no part of it can be exercised by a state. Gibbons v. Ogden, 9 Wheaton, 1; Passenger Cases, 7 How. 283. It has, indeed, often been argued, and sometimes intimated by the court, that so far as congress has not legislated on the subject, the states may legislate respecting inter-state commerce. Yet, if they can, why may they not add regulations to commerce with foreign nations beyond those made by congress, if not inconsistent with them, for the power over both foreign and interstate commerce is conferred upon the federal legisla

ture by the same words. And certainly it has never yet been decided by this court, that the power to regulate inter-state, as well as foreign commerce, is not exclusively in congress. Cases that have sustained state laws alleged to be regulations of commerce among the states, have been such as related to bridges or dams across streams wholly within a state, police or health laws, or subjects of a kindred nature, not strictly commercial regulations. The subjects were such as in Gilman v. Philadelphia, 3 Wall. 713, it was said, "can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively." However this may be, the rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted, are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by congress. Cooley v. Port Wardens, 12 How. 299; Gilman v. Philadelphia, supra; Crandall v. The State of Nevada, 6 Wall. 42. Surely transportation of passengers or merchandise through a state, or from one state to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one state can directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation, every other may, and thus commercial intercourse between states remote from each other may be destroyed. The produce of western states may thus be effectually excluded from eastern markets, for though it might bear the imposi

tion of a single tax, it would be crushed under the load of many. It was to guard against the possibility of such commercial embarrassments, no doubt, that the power of regulating commerce among the states was conferred upon the federal government.

§ 503. A state cannot tax persons for passing through or out of it. Inter-state transportation of passengers is beyond the reach of a state legislature. And if state taxation of persons passing from one state to another, or a state tax upon inter-state transportation of passengers is unconstitutional, a fortiori, if possible, is a state tax upon the carriage of merchandise from state to state, in conflict with the federal constitution. Merchandise is the subject of commerce. Transportation is essential to commerce; and every burden laid upon it is pro tanto a restriction. Whatever, therefore, may be the true doctrine respecting the exclusiveness of the power vested in congress to regulate commerce among the states, we regard it as established that no state can impose a tax upon freight transported from state to state, or upon the transporter, because of such transportation. But while holding this, we recognize fully the power of each state to tax at its discretion its own internal commerce, and the franchises, property, or business of its own corporations, so that inter-state intercourse, trade or commerce, be not embarrassed or restricted. That must remain free. 1

§ 504. This opinion comes the nearest to being

'This opinion was delivered by Mr. Justice STRONG. The court was divided. For the full text, see Chicago Legal News, vol. v, No. 45.