Dissenting Opinion: Harlan, J.

reason for this is that both the charge and the actual transportation in such cases are exclusively confined to the limits of the territory of the State, and is not commerce among the States, or interstate commerce, but is exclusively commerce within the State. So far, therefore, as this class of transportation, as an element of commerce, is affected by the statute under consideration, it is not subject to the constitutional provision concerning commerce among the States. It has often been held in this court, and there can be no doubt about it, that there is a commerce wholly within the State, which is not subject to the constitutional provision, and the distinction between commerce among the States and the other class of commerce between the citizens of a single State, and conducted within its limits exclusively, is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other. The Daniel Ball, 10 Wall. 557; Hall v. DeCuir, 95 U. S. 485; Telegraph Co. v. Texas, 105 U. S. 460."

The statute in this case, as settled by the Supreme Court of the State of Mississippi, affects only such commerce within the State, and comes, therefore, within the principles thus laid down. It comes also within the opinion of this court in the case of Stone v. Farmers' Loan and Trust Co., 116 U. S. 307.

We see no error in the ruling of the Supreme Court of the State of Mississippi, and its judgment is, therefore,

MR. JUSTICE HARLAN dissenting.

Affirmed.

The defendant, the Louisville, New Orleans and Texas Railroad Company, owns and operates a continuous line of railroad from Memphis to New Orleans. If one of its passenger trains -starting, for instance, from Memphis to go to New Orleans. -enters the territory of Mississippi, without having cars attached to it for the separate accommodation of the white and black races, the company and the conductor of such train are

Dissenting Opinion: Harlan, J.

liable to be fined as prescribed in the statute, the validity of which is here in question. In other words, it is made an offence against the State of Mississippi if a railroad company engaged in interstate commerce shall presume to send one of its trains into or through that State without such arrangement of its cars as will secure separate accommodations for both

races.

In Hall v. De Cuir, 95 U. S. 485, 488, this court declared unconstitutional and void, as a regulation of interstate commerce, an act of the Louisiana legislature which required those engaged in interstate commerce to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. The court, speaking by Chief Justice Waite, said: "We think it may safely be said that state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the State, or taken up within to be carried without, cannot but affect in greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the State must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced. It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many

VOL. CXXXIII-38

Dissenting Opinion: Harlan, J.

more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight regardless of the interests. of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a state line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it Congress, which is untrammelled by state lines, has been invested with the exclusive legislative power of determining what such regulations shall be."

It seems to me that those observations are entirely pertinent to the case before us. In its application to passengers on vessels engaged in interstate commerce, the Louisiana enactment forbade the separation of the white and black races while such vessels were within the limits of that State. The Mississippi statute, in its application to passengers on railroad trains employed in interstate commerce, requires such separation of races, while those trains are within that State. I am unable to perceive how the former is a regulation of interstate commerce, and the other is not. It is difficult to understand how a state enactment, requiring the separation of the white and black races on interstate carriers of passengers, is a regulation of commerce among the States, while a similar enactment forbidding such separation is not a regulation of that character.

Without considering other grounds upon which, in my judg ment, the statute in question might properly be held to be

Citations for Plaintiff in Error.

repugnant to the Constitution of the United States, I dissent from the opinion and judgment in this case upon the ground that the statute of Mississippi is, within the decision in Hall v. De Cuir, a regulation of commerce among the States, and is, therefore, void.

I am authorized by MR. JUSTICE BRADLEY to say that, in his opinion, the statute of Mississippi is void as a regulation of interstate commerce.

ASPINWALL v. BUTLER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 957. Submitted January 7, 1890. Decided March 3, 1890.

This case differs in no material fact from Delano v. Butler, 118 U. S. 634, and is governed by it.

When the previous proceedings looking to an increase in the capital stock of a national bank have been regular and all that are requisite, and a stockholder subscribes to his proportionate part of the increase and pays his subscription, the law does not attach to the subscription a condition that it is to be void if the whole increase authorized be not subscribed; although there may be cases in which equity would interfere to protect him in case of a material deficiency.

The provision in Rev. Stat. § 5142, that no increase of capital in a national bank shall be valid until the whole amount of the increase shall be paid in, and the Comptroller of the Currency notified and his consent obtained, was intended to secure the actual cash payment of the subscriptions made, and to prevent watering of stock; but not to invalidate bona fide subscriptions actually made and paid.

The Comptroller of the Currency has power by law to assent to an increase in the capital stock of a national bank less than that originally voted by the directors, but equal to the amount actually subscribed and paid for by the shareholders under that vote.

THE case is stated in the opinion.

Mr. Benjamin N. Johnson, for plaintiff in error, cited: Eaton v. Pacific Nat. Bank, 144 Mass. 260; Winters v. Armstrong, 37 Fed. Rep. 508; Chubb v. Upton, 95 U. S. 665;

Opinion of the Court.

Hamilton Plank Road Co. v. Rice, 7 Barb. 157; Nutter v. Lexington &c. Railroad Co., 6 Gray, 85; Salem Milldam Co. v. Ropes, 6 Pick. 23; Central Turnpike v. Valentine, 10 Pick. 142; Scovill v. Thayer, 105 U. S. 143; Sutherland v. Olcott, 95 N. Y. 93; Railway Co. v. Allerton, 18 Wall. 233; Gray v. Christian Society, 137 Mass. 329; People's Ins. Co. v. Westcott, 14 Gray, 440; Zabriskie v. Cleveland Railway Co., 23 How. 381; Atlantic Delaine Co. v. Mason, 5 R. I. 463.

Mr. A. A. Ranney, for defendant in error, cited: Cadle v. Baker, 20 Wall. 650; Davis v. Essex Baptist Society, 44 Connecticut, 582; Upton v. Tribilcock, 91 U. S. 47; Winters v. Armstrong, 37 Fed. Rep. 508, and cases cited; Brigham v. Mead, 10 Allen, 245; Buffalo &c. Railroad v. Dudley, 14 N. Y. 336; Seymour v. Sturgess, 26 N. Y. 134; Am. Tube Works v. Boston Machine Co., 139 Mass. 5; Reed v. Boston Machine Co., 141 Mass. 454; Wontner v. Shairp, 4 C. B. 404; Asphitel v. Sercombe, 5 Exch. 147; Johnson v. Goslett, 3 C. B. (N. S.) 569; Watts v. Salter, 10 C. B. 477; Garwood v. Ede, 1 Exch. 264; Scovill v. Thayer, 105 U. S. 143; Chubb v. Upton, 95 U. S. 665; Pullman v. Upton, 96 U. S. 928; Casey v. Galli, 94 U. S. 673; Keyser v. Hitz, 2 Mackey, 473; Kennedy v. Gibson, 8 Wall. 498; Curran v. Arkansas, 15 How. 304; Hawthorne v. Calef, 2 Wall. 10; Davis v. Weed, 44 Connecticut, 569, Shipman, J.; Railway Co. v. Allerton, 18 Wall. 233; Sawyer v. Hoag, 17 Wall. 610; Gray v. Portland Bank, 3 Mass. 364; Hart v. St. Charles Street Railway, 30 La. Ann. 758; Terry v. Eagle Lock Co., 47 Connecticut, 141; Clarke v. Thomas, 34 Ohio St. 46; Nutter v. Lexington &c. Railroad, 6 Gray, 85; Reed v. Memphis Gayoso Gas Co., 9 Heiskell, 545; Skowhegan & Athens Railroad v. Kinsman, 77 Maine, 370.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This case is governed by that of Delano v. Butler, 118 U. S. 634. The cases are not identical, it is true; but the principles established in that case require a similar decision in this. The substantial facts, up to a certain point, are the same; what took place afterwards cannot vary the result.