McCrary, Circuit Judge.
There may be room for doubt as to whether the act of 1874, by its terms, applies to inter-State commerce. If it be construed as in pari materia with the subsequent act of the Sixteenth General Assembly (1876) “for the relief of certain railroad companies, their agents and employees,” there is, I think, sufficient ground for holding that it was only intended to regulate such transportation as was carried on within the State. The latter act provides for releasing railroad companies from liability for having violated the act of 1874, upon certain conditions. Among these conditions was a requirement that such [165]*165railroad companies should enter into bends with security, conditioned that they would not seek to evade the provisions of the act of 1874 “by increasing or contriving any increase on through rates to points on. its line outside of the State.” If the original act itself was intended to apply to through shipments between points in this State and points in other States, it is difficult to see how it could have been evaded by increasing such rates. It is plain, therefore, that the Legislature un- . derstood and construed the original act as applicable only to local or State commerce, and sought, by the supplemental act above mentioned, to induce railroad companies to bind themselves by contract not to increase their charges upon inter-State commerce for the purpose of making up for their losses under the law upon State commerce. If, however, the statute shall be held by its terms to apply to inter-State commerce, I am of the opinion that it is in contravention of Art. I, Sec. 8 of the Constitution of the United States, which confers upon Congress the power “to regulate commerce with foreign nations and among the several States.”
The question is one of great importance, and, in some of its aspects, not free from difficulty. It has been much discussed in the Courts of the country, and especially in the Supreme Court of the United States. The following propositions may now be laid down as settled, at least so far as the Federal Courts are concerned:
First—The transportation of merchandise from place to place by a railroad is commerce.
Second—The transportation of merchandise from a place in one State to a place in another is “commerce among the States.”
Third—To fix and limit the charges for such transportation is to regulate commerce.
Fourth—A statute fixing or limiting such charges for transportation from places in one State to places in other States, is a regulation of commerce among the States.
Fifth—The power to regulate such commerce is vested by the Constitution in Congress.
Sixth—This power of Congress is exclusive, at least in all cases where the subjects, over which the power is exercised, are [166]*166in their nature national or admit of one uniform system or plan of regulation.
Seventh—The State cannot adopt any regulation which does or may operate injuriously upon the commerce of other States.
These general propositions are abundantly sustained by the following, among other authorities: Crandall v. Nevada, 6 Wall., 35; Passenger Cases, 7 How., 283; Gibbon v. Ogden, 3 Wheat., 1; Case of State Freight Tax, 15 Wall., 232; Welton v. Missouri, 90 U. S., 279; Hall v. De Cuir, 95 U. S., 497; Railroad Company v. Husen, 95 U. S., 469; Pensacola Telegraph Company v. Western, etc., Telegraph Company, 96 U. S., 9; Carton v. Illinois Central Railroad Company, (1 Supreme Court of Iowa,) 13 N. W. Rep., 67.
It is insisted by plaintiff’s counsel, in their very able and exhaustive argument in this case, that, conceding the soundness of these propositions, the statute in question may be upheld upon the ground that in enacting it the State exercised a power which is vested concurrently in the States and the General Government. That certain powers may be exercised by the States in the way of regulating inter-State commerce, where no- act of Congress is interfered with, may, for the purposes of this case, well he admitted. Assuming such to be the law, the questions remain:
Hirst—Whether the act in question, if applied to through shipments of freight upon lines extending into or through the several States, must not be held to relate to a subject which is in its nature national, or which admits of one uniform system or plan of regulation?
Second—Whether, if the power of the State to pass such an act be conceded, it does not necessarily include the power to discriminate against the commerce of other States?
If either of these questions is answered affirmatively, then the statute, in so far as it relates to through shipments over inter-State lines, is in violation of the Federal Constitution. I am of the opinion that both questions must be so answered. It seems very obvious that the regulations of transportation or merchandise over a line extending, it may be, from the Atlantic to the Pacific ocean, _is a subiect which is in its nature national. It is so because it necessarily concerns the people of [167]*167the whole country, and is beyond the legislative power of any single State. It is also apparent that such transportation not only admits of, but requires a uniform system or plan of regulation. I do not understand the plaintiff’s counsel as denying these propositions; but he insists that this State may regulate charges upon so much of the route as lies within its own territory. In other words, the contention of counsel is, that each State over whose territory a line of inter-State railroad passes may fix or limit the charges to be made for the carriage of a cargo upon that part of the route which lies within its own jurisdiction. The consideration of this proposition involves a determination of the second question last above stated, viz: Whether the statute in question construed as authorizing the regulation of charges within this State, may not affect charges made for carriage in other States. To state the question in another form, it is this: Can each of the States through which a cargo must pass, in going, for example, from Des Moines to New York City, fix the proportionate charge which shall be made by the carrier for the distance within its own territory? Such a line would pass through portions of the States of Iowa, Illinois, Indiana, Ohio, Pennsylvania and New York. How can Iowa fix the amount to be paid for the carriage from Des Moines to the State line without indirectly affecting the rates to be charged in other States? ■ It must be borne in mind that the power to regulate includes, not only the power to reduce, but the power to increase charges.
If one of the States upon such a line can fix the charge for carriage within its own territory, what is to prevent it from authorizing its own carriers to demand and receive an undue and unreasonable proportion of the gross amount? If the proposition contended for be admitted, what is there to prevent the three States through which the cargo must first pass on its way to New York, from exacting more than one-half of the charge for the entire route? Or, to state the same question in another way, why may not the five States through which the cargo would pass before reaching the boundary of New Yerk, exact, in the aggregate, the whole of a reasonable charge for the entire route, leaving nothing for the carrier within the State of New York? And since no State law can have any [168]
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McCrary, Circuit Judge.
There may be room for doubt as to whether the act of 1874, by its terms, applies to inter-State commerce. If it be construed as in pari materia with the subsequent act of the Sixteenth General Assembly (1876) “for the relief of certain railroad companies, their agents and employees,” there is, I think, sufficient ground for holding that it was only intended to regulate such transportation as was carried on within the State. The latter act provides for releasing railroad companies from liability for having violated the act of 1874, upon certain conditions. Among these conditions was a requirement that such [165]*165railroad companies should enter into bends with security, conditioned that they would not seek to evade the provisions of the act of 1874 “by increasing or contriving any increase on through rates to points on. its line outside of the State.” If the original act itself was intended to apply to through shipments between points in this State and points in other States, it is difficult to see how it could have been evaded by increasing such rates. It is plain, therefore, that the Legislature un- . derstood and construed the original act as applicable only to local or State commerce, and sought, by the supplemental act above mentioned, to induce railroad companies to bind themselves by contract not to increase their charges upon inter-State commerce for the purpose of making up for their losses under the law upon State commerce. If, however, the statute shall be held by its terms to apply to inter-State commerce, I am of the opinion that it is in contravention of Art. I, Sec. 8 of the Constitution of the United States, which confers upon Congress the power “to regulate commerce with foreign nations and among the several States.”
The question is one of great importance, and, in some of its aspects, not free from difficulty. It has been much discussed in the Courts of the country, and especially in the Supreme Court of the United States. The following propositions may now be laid down as settled, at least so far as the Federal Courts are concerned:
First—The transportation of merchandise from place to place by a railroad is commerce.
Second—The transportation of merchandise from a place in one State to a place in another is “commerce among the States.”
Third—To fix and limit the charges for such transportation is to regulate commerce.
Fourth—A statute fixing or limiting such charges for transportation from places in one State to places in other States, is a regulation of commerce among the States.
Fifth—The power to regulate such commerce is vested by the Constitution in Congress.
Sixth—This power of Congress is exclusive, at least in all cases where the subjects, over which the power is exercised, are [166]*166in their nature national or admit of one uniform system or plan of regulation.
Seventh—The State cannot adopt any regulation which does or may operate injuriously upon the commerce of other States.
These general propositions are abundantly sustained by the following, among other authorities: Crandall v. Nevada, 6 Wall., 35; Passenger Cases, 7 How., 283; Gibbon v. Ogden, 3 Wheat., 1; Case of State Freight Tax, 15 Wall., 232; Welton v. Missouri, 90 U. S., 279; Hall v. De Cuir, 95 U. S., 497; Railroad Company v. Husen, 95 U. S., 469; Pensacola Telegraph Company v. Western, etc., Telegraph Company, 96 U. S., 9; Carton v. Illinois Central Railroad Company, (1 Supreme Court of Iowa,) 13 N. W. Rep., 67.
It is insisted by plaintiff’s counsel, in their very able and exhaustive argument in this case, that, conceding the soundness of these propositions, the statute in question may be upheld upon the ground that in enacting it the State exercised a power which is vested concurrently in the States and the General Government. That certain powers may be exercised by the States in the way of regulating inter-State commerce, where no- act of Congress is interfered with, may, for the purposes of this case, well he admitted. Assuming such to be the law, the questions remain:
Hirst—Whether the act in question, if applied to through shipments of freight upon lines extending into or through the several States, must not be held to relate to a subject which is in its nature national, or which admits of one uniform system or plan of regulation?
Second—Whether, if the power of the State to pass such an act be conceded, it does not necessarily include the power to discriminate against the commerce of other States?
If either of these questions is answered affirmatively, then the statute, in so far as it relates to through shipments over inter-State lines, is in violation of the Federal Constitution. I am of the opinion that both questions must be so answered. It seems very obvious that the regulations of transportation or merchandise over a line extending, it may be, from the Atlantic to the Pacific ocean, _is a subiect which is in its nature national. It is so because it necessarily concerns the people of [167]*167the whole country, and is beyond the legislative power of any single State. It is also apparent that such transportation not only admits of, but requires a uniform system or plan of regulation. I do not understand the plaintiff’s counsel as denying these propositions; but he insists that this State may regulate charges upon so much of the route as lies within its own territory. In other words, the contention of counsel is, that each State over whose territory a line of inter-State railroad passes may fix or limit the charges to be made for the carriage of a cargo upon that part of the route which lies within its own jurisdiction. The consideration of this proposition involves a determination of the second question last above stated, viz: Whether the statute in question construed as authorizing the regulation of charges within this State, may not affect charges made for carriage in other States. To state the question in another form, it is this: Can each of the States through which a cargo must pass, in going, for example, from Des Moines to New York City, fix the proportionate charge which shall be made by the carrier for the distance within its own territory? Such a line would pass through portions of the States of Iowa, Illinois, Indiana, Ohio, Pennsylvania and New York. How can Iowa fix the amount to be paid for the carriage from Des Moines to the State line without indirectly affecting the rates to be charged in other States? ■ It must be borne in mind that the power to regulate includes, not only the power to reduce, but the power to increase charges.
If one of the States upon such a line can fix the charge for carriage within its own territory, what is to prevent it from authorizing its own carriers to demand and receive an undue and unreasonable proportion of the gross amount? If the proposition contended for be admitted, what is there to prevent the three States through which the cargo must first pass on its way to New York, from exacting more than one-half of the charge for the entire route? Or, to state the same question in another way, why may not the five States through which the cargo would pass before reaching the boundary of New Yerk, exact, in the aggregate, the whole of a reasonable charge for the entire route, leaving nothing for the carrier within the State of New York? And since no State law can have any [168]*168extra territorial force, is it not clear that the attempt to enforce the statutes of each of the several States, in so far as the carriage within such State is concerned, would lead to conflicts and disputes which no State authority would be competent to adjust and determine? These considerations, I think, lead inevitably to the conclusion, not only that such commerce is the subject only of national control and regulation, but that any attempt to devolve upon a single State the power to regulate it in part, would necessarily give to such State the right to discriminate against other States of the Union. It is well known that one of the chief reasons which caused the constitutional convention to insert the commercial clause in the Constitution of the United States, was the belief that if the power to regulate commerce among the States, was not taken exclusively into the hands of the National Government, rivalries and jealousies would arise among the States similar to those which had existed under the old confederation, which would lead practically to the destruction of inter-State commerce, and it was regarded as specially important that no power in the Legislature of any one State, to interfere with commerce or trade in any othe^ State, should be recognized as existing. My conclusion is, therefore, that the statute in question, if held to apply to interstate commerce, is in violation of the Constitution of the United States. In this view I am supported by the recent decision of the Supreme Court of this State, Carton v. Ill. Cent. R. Co., supra, in which the act now under consideration was held to be unconstitutional. If I were in doubt upon the subject, I should not hesitate to follow that ruling. I am not aware that the Federal Courts have ever in the course of our history, undertaken to enforce in this tribunal any act of the State Legislature, which the Supreme Court of the State has held for any reason to be null and void. To do so would be to give to suitors who can come here, an unjust advantage over the citizens of the State, who are compelled to submit their rights to the determination of the State Courts.
The demurrer to the answer is overruled.
—Chicago Legal News.
Decker & Yonley, for complainant.
Lyman K. Bass, Wolcott & Milburn, for respondents.