may rightfully claim exclusive authority to legislate, and have also indicated more definitely the limit to which the states may still cross that boundary in the exercise of permissive police power. The controlling principle which pervades all of them is, that such legislation by the states is inhibited as inpedes, obstructs, or controls commerce, or comes in conflict with some statute passed by Congress to regulate it: Robbins . Shelby Co. Taxing District, 120 U. S. 489; McCall v. California, 136 U. S. 104; Asher v. Texas, 128 U. S. 129; Lyng v. Michigan, 135 U. S. 166; Walling v. Michigan, 116 U. S. 446; Inman S. Co. v. Tinker, 94 U. S. 238; In re Rahrer, 140 U. S. 545; Bowman v. Chicago etc. R'y Co., 125 U. S. 465; Philadelphia etc. S. Co. v. Pennsylvania, 122 U. S. 326.

In Railroad v. Husen, 95 U. S. 470, Justice Strong, delivering the opinion, said: “Many acts of a state may, indeed, affect commerce without amounting to a regulation of it in the constitutional sense of the term. And it is sometimes difficult to distinguish between that which merely affects or influences and that which regulates or furnishes a rule of conduct. . . . . While we unhesitatingly admit that a state may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent animals suffering from contagious or infectuous diseases, or convicts, from entering the state; while, for the purpose of self-protection, it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the state, beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police power, substantially prohibit or burden either foreign or interstate commerce.'

In Welton v. State of Missouri, 91 U. S. 282, it is said: "The fact that Congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered in reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled."

In Western Union Tel. Co. v. Pendleton, 122 U. S. 358, Justice Field says: "In these cases, the supreme authority of Congress over the subject of commerce by the telegraph with foreign countries or among the states is affirmed, whenever that body chooses to exert its power, and it is also held that

the state can impose no impediments to the freedom of that commerce."

In Walling v. Michigan, 116 U. S. 446, Justice Bradley, speaking for the court, says: "We have repeatedly held, that so long as Congress does not pass any law to regulate commerce among the several states, it thereby indicates that such commerce shall be free and untrammeled": Brown v. Houston, 114 U. S. 631.

When we come, therefore, to the application of the authorities to the case at bar, the question arises at the threshold of the inquiry, whether the statute which is drawn in question would, in its enforcement, tend to trammel or obstruct the trade carried on between the states, and not whether it might remotely influence it.

The statute (Code, sec. 1967), which was declared to be repugnant to the constitution of the United States in the court below, is as follows: "It shall be unlawful for any railroad company operating in this state to allow any freight they may receive for shipment to remain unshipped for more than five days, unless otherwise agreed between the railroad company and the shipper, and any company violating this section shall forfeit and pay the sum of twenty-five dollars for each day said freight remains unshipped, to any person suing for the same." Neither the act of Congress passed in 1887 to regulate commerce, nor the amendatory act of 1889, prescribes the time or the manner in which freight received for shipment to another state shall be forwarded; nor do these statutes clothe the commission with power to regulate the time of shipment. Therefore, if the defendant company, whose line extends into the section of our state where many farmers are engaged in raising vegetables for sale in northern cities, should, for the purpose of stimulating production in a state further south and more remote from the markets, fail to furnish transportation to this class of persons, known as "truckers," for more than five days, and thereby give to the planters of South Carolina the exclusive benefits of the markets till vegetables of the same kind, then mature here, should ripen in Virginia, the producers would suffer loss without adequate remedy, because no provision is made in any national law for preventing such secret preference. It would be almost impossible, in the very nature of things, to prove the existence of such a purpose, though in fact entertained and acted upon by some agent in control of the through line, or in any way to show that, in a sys

tem so extensive and complicated, the injury was due to any cause other than undesigned and unavoidable accident. In the same way, in the absence of a state statute imposing a penalty, or any other local legislation on the subject, facilities for shipment may be furnished more promptly to one town or station than to another neighboring one, and thereby its business may be injured and its improvements retarded. other compulsory law could be conceived of that is calculated to operate so uniformly in insuring the shipment of both local and interstate products without preference to one class of shippers over another, or to one station over a neighboring

Νο

If the evil to be remedied were the habit of giving the preference to through freight consigned to another state over local shipments to points within the state, where is the power to compel fairness lodged? The power delegated to Congress to control through shipments would not warrant the enactment of a law going further than to prohibit unfairness and insure promptness in transporting goods shipped to another state. If, then, the authority of the state is confined to such legislation as will apply to and insure uniformity and dispatch in forwarding freight to points within its own territory, how could the evil of giving advantage either to the through or local shipper be corrected? Surely, as between the federal legislature acting under well-defined and delegated powers and the states that have retained and may exercise all the residuary authority to provide by statute for the protection of its citizens, subject only to the restraints of their own organic law, the right should be conceded to the latter without question.

It is settled that the statute under consideration is valid as to the transportation of freight to points within the state, and so far may be enforced in the state courts, just as the license taxes could be collected from persons selling the products of the state that imposed them, and within its limits.

If we concede, then, that each power, state and national, is sovereign and exclusive within its own domain in dealing with the problem of expediting shipments, we have located the authority to regulate the conduct of each class of consignments inter sese, and it might be exercised, if the statutes so provided, by two railroad commissions supplementing each other. But when the interests of state and interstate traders conflict, and such regulation is needed as will prevent corporations from giving undue preference to either over the other, under

this theory it would seem that the states have neither delegated nor reserved the right to afford such relief by appropriate legislation, but that in the transfer of delegated authority to the federal Union, this power, so conducive if not essential to the public weal, has been lodged in nubibus beyond the reach of either. There is nothing upon the face of the statute, as in that discussed in Robbins v. Shelby Taxing District, 120 U. S. 489, to show that it was intended to operate, or does operate, as a restriction upon the interstate commerce. On the contrary, the enforcement of the penalty is at once a stimulus and a compensation, placed within the reach of every one who consigns his freight to another state, and he may avail himself of its aid as an incentive to promptness to the same extent as the local shipper may do. In fact, the controversy before us has its origin in a failure to ship goods to another state, and we are asked to declare the law invalid when its aid has been invoked to expedite interstate commerce, and to thereby leave the defendant at liberty to embarrass such traffic, not by legislation, but by inaction or unfair conduct.

It was contended, on the argument, that a state could not compel railroad companies doing business between states to provide cars for removing freight within a given period without risk of impairing the facilities for shipment from the adjacent state by withdrawal of the company's cars from it. That is an evil that may be met and provided against by the enactment of a similar statute in the adjacent state, and thus forcing the company to provide an adequate supply of cars to remove its freight without delay. Besides, the same result would as naturally follow, if the statute were limited in its operations to compelling the removal of freights consigned to points within the state, and if the argument were allowed to influence us at all, we would be driven to the conclusion that the penalty cannot be recovered, even where the agreement is to ship the freight to a station in North Carolina. Cars cannot be provided for the shipment of local freight if they are moved to particular points, not to fulfill a duty due to persons who have been induced by the invitation of the carriers to intrust goods to their care, but to avoid the consequences of disregarding a penal statute, without influencing to some extent the business of the whole line.

Where these articles of trade have termini in different states, or where they lie entirely within a single state, but constitute a part of a long through line formed for the purpose of com

peting for business with other similar lines, it would be as certainly impossible to interfere in any way with any branch of the system, whether located entirely within one or situate in two states, without to some extent affecting the whole line, as it would be to check the flow of blood in a vein of one's arm, or to temporarily open the vein, without influencing the action of the main artery of that arm.

This case illustrates the distinction drawn by Justice Strong in Railroad v. Husen, 95 U. S. 470, between a state statute that affects or influences incidentally, even to the slightest extent, the transportation of commodities from one state to another, and one that is palpably intended to embarrass such commerce, and trammel it by restrictions, especially where, in addition, there is a plain discrimination in favor of the local trade or production.

Neither the clause of the constitution which we have considered, nor any other, has been construed to interfere with "the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity": Barbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623. The palpable purpose of the legislature in enacting our statute was to stimulate trade and develop the resources of its people. It throws the ægis of state protection alike over freight consigned under the care of the state, and that of which the general government has the right of supervision. The requirements of a state law that locomotive engineers be examined as to the condition of their eyes, to determine whether they were colorblind, and as to fitness generally, and required to have a license, have been declared valid under the general authority to protect life, health, and property; yet such statutes interfere with and affect, but do not obstruct, commerce between the states: Smith v. Alabama, 124 U. S. 465; Nashville etc. R'y Co. v. Alabama, 128 U. S. 96. In Smith v. Alabama, 124 U. S. 465, the court said: "If the state has power to secure to passengers conveyed by common carriers in their vehicles of transportation a right of action for the recovery of damages occasioned by the negligence of the carrier in not providing safe and suitable vehicles or employees of sufficient skill and knowledge, or in not properly conducting or managing the act of transportation, why may not the state also impose, on

AM. ST. REP., VOL. XXVI. - 37