THE NATION AND THE CONSTITUTION tain what revenue is derived from each class, it is absolutely impossible thus to distribute the cost of operation and maintenance. The evidence upon that subject is wholly speculative and conjectural, consisting en tirely of opinion testimony given by parties having a vital interest in the result of the litigation. In actual operation the rail roads do not, and cannot keep the two kinds of commerce separate. Why then should the law attempt to divide that which in actual life is a unit and indivisible? Whenever a state prescribes a schedule of rates for local business, it thereby directly and necessarily regulates interstate business as well. There can be no sudden lifts and falls at state lines. They have no relation whatever to the cost of service, and can afford no justification for discrimination in rates. As the result of the schedule of rates prescribed by the state of Minnesota during the past winter, the rates on the western side of an invisible line were from twenty-five to fifty per cent higher than those on the eastern side. The railroads could not main tain both their rates without discriminating against North Dakota points in a manner which would constitute a gross violation of that portion of the interstate commerce act which forbids discrimination against any locality. The necessary result of the enforce ment of the local rates was to compel a reduction of all through rates. This the Supreme Court has decided in such a direct interference with interstate commerce as to render the action of the state void. But further, if one state may prescribe a schedule of rates all states may, and the inevitable result of such a practice is to place the whole body of interstate commerce under the actual domination of state laws. In that way the authority which extends to only fifteen per cent of the business, regulates the entire business. The necessary conse quence is that either the nation must take control of railroad transportation within the states or the states will take control of such transportation among the states. We
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deceive ourselves by a mere form of words when we speak of the separate regulation of local business by the state and through business by the nation. The state cannot formulate and enforce any schedule of rates which will not necessarily and directly regulate interstate rates; neither can the nation formulate and enforce any schedule of interstate rates which will not neces sarily and directly change local rates. The truth is that governmental regulation of rates is not a regulation of commerce, but of the railroads as instruments of com merce, and when the nation and the state both prescribe to a railroad a schedule of rates, they are both regulating the same thing. This gives rise to a conflict of authority which Marshall declared in Gib bons v. Ogden ought never to be permitted to occur. The chief domestic cause for the adoption of the Constitution was to destroy the power of states over interstate commerce. But does not their control of railroads re-establish that authority? To say that states shall not regulate commerce among the states, and at the same time concede to them power to regulate the only instrumentalities by which that commerce is carried on, is to establish in practice what we deny in theory. Hither to state regulation has been inefficient and for that reason alone its localizing power has not become manifest. But now, through the investigations of economists and com missions, the general campaign of publicity, experience in rate litigation, the decreased influence of railroads over legislative bodies, there has come a new era in governmental regulation of carriers. State authority is becoming organized, energetic and effective. If continued it will work its inevitable results. In commerce as in politics, state governments will represent state interests. No rivalry can surpass that of our commer cial centers, and the states in which they are located, let their power over carriers become effective, will exercise that power in support of their own cities. This is not theory.
