the present Act of Interstate Commerce, by making that act superior to and controlling all State laws: at any rate, some single tribunal whose decisions may make a body of railway law for the protection as well as for the discipline of railway companies. If a possible dissenting voice should urge that there was a difference between a "State" and an "interstate" railway, I may add that it has been held repeatedly by the Interstate Commerce Commission, and never denied by the courts, that a railroad which is wholly within a single State, if engaged in the transportation of passengers and freight going to or coming from another State, is engaged in interstate commerce and is therefore subject to congressional control; and the Commission have repeatedly asserted, and are in this upheld by the highest authority,[1] that Congress may with respect to all the subjects of foreign and interstate commerce, the power engaged in, and the instruments by which it is carried on. It gives the power to prescribe the rules by which it shall be governed and the conditions upon which it shall be conducted. It embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged; and, if I am not in error, this power has been extended, by the present Interstate Commerce Commission, to the regulations and the workings and maintenance of a bridge over which freight having an interstate destination is transported! With such an interpretation of the constitutional clause, it would not seem to be going too far if the Commission should assume a veto power over the State Commissioners; and I am sure it would not be difficult to use it with the highest possible regard for the interests of all concerned.
One of the jurisdictions proposed for such a tribunal of railway last resort as I have suggested is that of restricting the construction of proposed railway lines by decreeing whether or not a proposed railway line is necessary or desirable between two given points. I think it is entirely safe to say, however, that no such jurisdiction will ever be assumed, or, if assumed, will ever be exercised by any tribunal or court within the United States. This people would resent (and no class of it sooner than that of men of the Hudson caliber, who see in railways the approaching cataclysm of the nation), as intolerable, the idea of any arbitrator however lofty deciding upon an individual's right to invest his own capital entirely as seemed to him good; but principally because such a power, if granted, would not be confined to a negative action alone. The right to forbid the building of a railway between two certain points would lead up to, and in time arrogate, the right
- ↑ 93 U. S., 103-114. Id., 196.
