FEDERAL POWER TO OWN AND OPERATE UNQUESTIONABLY there are decisions of the Supreme Court of the United States which afford a reasonable basis for the contention that the United States is vested with the power to acquire and operate the railroads used in the transportation of interstate commerce. But as the facts involved in those cases were so different from those which would be presented should an effort be made to exercise such power, this constitutional question cannot be regarded as so firmly settled that it is not worthy of consideration. It will hardly be insisted that such power is vested in the general government under the clause of the Constitution which authorizes Congress "to establish post-offices and post-roads," although that clause has been mentioned by the Supreme Court as one reason why Congress may construct or authorize the construction of a railroad from one state into another.1 The carrying of mails is but a small incident to the ownership and operation of railroads; and it cannot be believed that the general government has the power to embark in an enterprise so gigantic for such an incidental purpose. The power, if it exists, must be found in Article I, Section 8, clause 3, which empowers Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." In interpreting this clause the Supreme Court soon held that Congressional jurisdiction extended not only to transportation itself, but also to the goods transported, and to the ways and instruments of, and the individuals engaged in, transportation. Those cases which involved the ownership by the government of the ways and means of transportation are here of special interest. Early in the nineteenth century Congress appropriated $710,000 toward the construction of a highway from Cumberland, Mary I California v. Central Pac. R. R. Co., 127 U. S. 1 (1887). land, to the state of Ohio. Apparently the legality of this appropriation was not attacked; and it has been often recognized by the Supreme Court as valid because designed to promote interstate commerce.2 In California v. Central Pacific Railroad Company, in referring to the action of Congress in granting lands and franchises to the Atlantic & Pacific Railroad Company and the Southern Pacific Railroad Company, the Supreme Court said: "The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce."3 So in Luxton v. North River Bridge Company, the court said: "Although Congress may, if it sees fit and as it has often done, recognize and approve bridges erected by authority of two States across navigable waters between them, it may, at its discretion, use its sovereign powers, directly or through a corporation created for that purpose, to construct bridges for the accommodation of interstate commerce by land, as it undoubtedly may to improve the navigation of rivers for the convenience of interstate commerce by water."4 United States v. Jones 5 involved certain locks, dams, canals, and franchises situated between Wisconsin River and the mouth of Fox River, which the United States had acquired from the Green Bay & Mississippi Canal Company, and the power of the United States to own them was not questioned. Monongahela Navigation Company v. United States was a proceeding brought by the United States to condemn for navigation purposes certain locks and dams which had been erected by the defendant under authority granted by the legislature of Pennsylvania; and the power of the government to condemn the property for that purpose was not contested. 2 California v. Central Pac. R. R. Co., 127 U. S. 1, 39 (1887); Indiana v. United States, 148 U. S. 148 (1893); Wilson v. Shaw, 204 U. S. 24, 35 (1907). 3 California v. Central Pac. R. R. Co., 127 U. S. 1, 39 (1889). 4 Luxton v. North River Bridge Co., 153 U. S. 525, 530 (1894). 7 United States v. Chandler-Dunbar Company was one of the last cases before the Supreme Court involving the ownership by the United States of transportation ways. Congress had declared by act "that the ownership in fee simple absolute by the United States of all lands and property of every kind and description north of the present St. Marys Falls Ship Canal throughout its entire length and lying between said ship canal and the international boundary line at Sault Sainte Marie, in the State of Michigan, is necessary for the purposes of navigation of said waters and the waters connected therewith," and authorized the condemnation of the territory described for the construction of additional canals, locks, and dams. It was regarded as settled that the United States had the power to acquire and hold this property, and the important questions determined related to the elements of damages for which the United States is liable in such cases. These are illustrative of a number of cases in which the power of the United States to own the ways along which interstate and foreign commerce is transported is recognized. But do any number of decisions of that character settle beyond doubt that the United States has the power to own and operate in times of peace all the railroads of the United States engaged in interstate commerce? The Constitution of the United States, like all other instruments, must be construed as a whole. Consequently in determining the extent of the powers granted to the general government by one of its clauses, it is necessary to consider all other clauses bearing upon the same subject. Again, the language of a clause may be so general that it will admit of a construction vesting unlimited power in the general government as to the matter to which the clause relates. Yet a point may be reached beyond which it is perfectly apparent that the authors of the Constitution could not possibly have intended the power to extend, and to go beyond which would throw the entire instrument out of equilibrium and thus practically create a new constitution. The courts will not write a new constitution in that way; and hence there may be some limit even to the powers conferred by the commerce clause, although the courts have very properly held that it is far reaching in its scope. As the power is claimed under the commerce clause of the 7229 U. S. 53 (1913). 8 Constitution, it is not insisted that it exists as to roads engaged exclusively in intrastate commerce. But are there any such roads? In order to engage in interstate or foreign commerce it is not necessary that the road extend from one state into another. If it is the initial, intermediate, or ultimate carrier of articles, the transportation of which originates in one state with their destination in another state or foreign country, or originates in a foreign country with their destination in the United States, it is engaged in interstate or foreign commerce. Nor is it necessary that such commerce be very great as compared with the total traffic carried in order to make the road subject to congressional legislation. This is illustrated by the case of United States v. Colorado & North Western Railroad Company, decided by the United States Circuit Court of Appeals, Eighth Circuit. The company owned a short line of narrow gauge road situated wholly in the state of Colorado. A small shipment of hardware originating at Omaha, Nebraska, and a shipment of paper tablets originating at Kansas City, Missouri, were carried on one of its trains to points on its line in cars not equipped with safety appliances. They were not carried on through bills of lading, and there was no common control or management between this line and the lines from which the goods were received. Yet the court held that the company was subject to the provisions of the Safety Appliance Act and imposed the prescribed penalty. It is true that the Court of Appeals, Sixth Circuit, held to the contrary in a case presenting similar facts, but that decision was based primarily on the construction of the act itself, and not on the want of power in Congress to legislate upon the subject. There is certainly no short line of road that does not carry some commerce destined to, or originating at, a point outside the state in which it is located; and, therefore, according to the advocates of government ownership, the United States can acquire by purchase or condemnation and operate all the railroad lines in the United States. Let us assume that the United States possesses such power. If it were exercised, thereafter the states could not impose taxes of any kind upon railroad property, would have no control whatever over the operation of trains, the maintenance of ways, or 8 157 Fed. 321 (1907). the manner or methods of conducting the transportation business by railroads, and could neither prescribe nor regulate in any way the rates for carrying intrastate commerce by rail. In other words, all power of the states with reference to the regulation or control over intrastate commerce in every respect, in so far as carried by rail, would be destroyed. This would be the necessary result, because, so far as the power of the United States extends, its sovereignty is supreme and admits of no restraints or limitations by the states. Not only is this a necessary implication arising from the granting of power to the United States, but as to the control of its property it is expressly provided by Article IV, Section 3, clause 2 of the Constitution, that "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." If the power to make all needful rules and regulations respecting its property is in the United States, the states can possess no power to make any such rules and regulations except by consent of the United States expressed or implied. This proposition is selfevident, but a brief review of the authorities relating to the subject will show how the principle has been applied. In McCulloch v. Maryland' it was held that the state of Maryland had no power to impose a tax upon the operation of a branch of the Bank of the United States, the court saying: "The sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them." 10 It was once supposed that property owned by the United States other than that expressly designated in Article I, Section 8, clause 17 of the Constitution, to wit, places purchased by the consent |