And said Mr. Justice Brewer in the famous case of In re Debs, 158 U. S. 591, 15 Sup. Ct. 909, 39 L. Ed. 1092:

“Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown-the railroad train and the steamship. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop."

It is true that the extension of the elastic but indestructible powers to regulate interstate and foreign commerce has been slow and gradual. It has, however, kept pace with the evolution of the great force of civilization it was designed to control. It has been as steadily resisted by that school of constructionists who believe, as stated by Justice Miller in Ex parte Yarborough, 110 U. S. 658, 4 Sup. Ct. 155, 28 L. Ed. 274, in "the old argument, often heard, often repeated, and in this court never assented to, that when a question of the power of Congress arises the advocate of the power must be able to place his finger on words which expressly grant it." It is equally true that the conservative efforts of the skillful logicians of this school have been of undoubted service to the country. They have obliged the most careful contemplation of the legality and the wisdom of every advancing step. To change the metaphor, the vis inertia they have exerted has performed the salutary functions of a brake upon the car of progress. On occasion, possibly, the brake has been applied when the car was heavily freighted with the hopes of the nation, and toiling painfully up hill, but its progression has been found irresistible. An illustration may be found in the gradual but expanding utilization of the commerce clause in its application to the instrumentalities of navigation. In the Lottawanna, 21 Wall. 577, 22 L. Ed. 654, on this topic it was held:

"Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law, and that of commercial regulation, are not coterminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of ship owners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime."

Here also Mr. Justice Bradley delivered the opinion of the court. On page 575 of 21 Wall., page 654 of 22 L. Ed., this great jurist speaks of the "uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states." Pursuant to this power the Congress therefore has prescribed rules which include. the control of vessels engaged in commerce and these are as well applicable to vessels engaged only in intrastate commerce as to those engaged in interstate traffic, in the case of steamboats, the inspection of their hulls and boilers, the licensing of their officers, the carrying of prescribed lights and giving and answering prearranged signals, the

maintenance of means for the preservation of life, life preservers, life rafts, and the like. In the Hazel Kirke (D. C.) 25 Fed. 607, the ne cessity of this unlimited control is stated:

"Manifestly it is not possible for Congress to fully control and adequately protect commerce with foreign nations and among the several states, when that commerce is pursued by means of vessels navigating the public waters of the United States, without controlling the navigation of all vessels navigating such waters, not only those engaged in commerce with foreign nations and among the several states, but those engaged in domestic commerce, and those engaged in no commerce at all, like the yachts. Accordingly Congress has undertaken to regulate the lights to be carried by all vessels navigating such waters, and the courses to be pursued by all vessels meeting upon such waters, and these regulations are supreme and binding upon all vessels there navigating, because only by controlling in those particulars the navigation of all vessels navigating such waters, can the safe navigation of vessels engaged in interstate or foreign commerce upon such waters be secured."

This control also extends to the control of persons transported in interstate and foreign commerce. That it relates to passengers thus transported will not be denied. It has been held that an act to regulate immigration which levied a duty for every passenger coming from a foreign port to this country is proper under the commerce clause. The Head Money Cases, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798. It has established qualifications and conditions for masters, engineers, pilots of vessels. It has enacted categorical rules comprehending the rights and duties of seamen and owners of vessels. It has regulated shipping articles, the method of their treatment, and the protection of their health while on board ship. This is established by numerous authorities. The Barque Chusan, 2 Story, 455, Fed. Cas. No. 2,717; The Katie (D. C.) 40 Fed. 492, 7 L. R. A. 55, 7 Cyc. 461; In re Vessels Owners Towing Company, 26 Fed. 170. Said the Supreme Court in Cooley v. Board of Wardens, 12 How. 315, 13 L. Ed. 996:

"When we look to the nature of the service performed by pilots, to the relations which that service and its compensations bear to navigation between the several states, and between the ports of the United States and foreign countries, we are brought to the conclusion that the regulation of the qualifications of pilots, of the modes and times of offering and rendering their services, and of the penalties by which their rights and duties may be enforced, does constitute regulations of navigation, and consequently of commerce, withIn the just meaning of this clause of the Constitution."

For authorities on this subject, see 8 Fed. Stat. Ann. 408.

If then Congress has the established right to control the relative duties of the ship owners and the seamen, both of whom are instrumentalities of commerce, both absolutely essential to its proper and effective conduct, or any conduct, upon what sound reasoning can its control of the rights and liabilities of other men engaged in the transportation by land of the same commerce be denied? The employés of a railroad company are essential instruments to the existence under modern conditions of interstate traffic on land. The locomotive engineers, the firemen, the train hands, the track hands, the conductors, and all the rest are as essential to this traffic as are the masters, pilots, engineers, and sailors to navigation. The power to regulate, as we have heretofore seen, is unlimited in its application to such traffic. How narrow then is the contention that this regulation may be extended to the inanimate

machinery and commodities engaged, and not to the men without whose services not a wheel would revolve and not an ounce of freight would be transported.

Said Mr. Justice Bradley in Stockton v. Baltimore & N. Y. R. Co. (C. C.) 32 Fed. 16:

"With regard to commerce, it has been expressly held that it is not confined to commercial transactions, but extends to seamen, ships, navigation, and the appliances and facilities of commerce. And it must extend to these, or it cannot embrace the whole subject. Under this power, the navigation of rivers and harbors has been opened and improved, and we have no doubt that canals and waterways may be opened to connect navigable bays, harbors, and rivers with each other, or with the interior of the country. Nor have we any doubt that, under the same power, the means of commercial communication by land as well as by water may be opened up by Congress between different states, whenever it shall see fit to do so, either on failure of the states to provide such communication, or whenever, in the opinion of Congress, increased facilities of communication ought to exist."

In the presence of such tremendous physical demonstration of this truth as the transcontinental railways, builded largely from the public resources and chartered by Congress, and the work of constructing the Isthmian Canal, the soundness of the views of that great jurist will scarcely be questioned.

In the subsequent case of California v. Pacific Railroad Company, 127 U. S. 39, 8 Sup. Ct. 1080, 32 L. Ed. 150, Justice Bradley further observes:

"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. Of course the authority of Congress over the territories of the United States, and its power to grant franchises exercisable therein are, and ever have been, undoubted. But the wider power was very freely exercised. ard much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing states as well as territories and employing the agency of state as well as federal corporations."

This language is approved without reservation, and applied to railroads by the Supreme Court in the case of Cherokee Nation v. Kansas Railroad, 135 U. S. 658, 10 Sup. Ct. 971, 34 L. Ed. 295. There the court was unanimous, and said Justice Harlan as its mouthpiece:

"The question is no longer an open one as to whether a railroad is a public highway, established primarily for the convenience of the people and to subserve public ends, and, therefore, subject to goveramental control and regulation."

Congress then may not only create railroads, pay for their construc tion and maintenance, but it may control those which are chartered by the states, and which engage in the commerce over which the national authority is paramount. Congress alone by legislation may occupy the whole field of interstate commerce. The Lottery Cases, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. It is true that the states may charter corporations to engage in this business. It is true that Congress by its acquiescence may permit their operation. But when it chooses to act, the authority granted by the state, when in conflict with

the national law, is obliterated, and the latter is written in letters of enduring light on the page from which the local enactments have been erased. Upon this subject the authorities are numerous. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 297, 298, 19 Sup. Ct. 465, 43 L. Ed. 702.

A familiar illustration is near at hand. By virtue of state authority several railroads had constructed bridges for their highways across the navigable river upon which this city is situated. The steamboats plying the lower river were thus forbidden access to their wharves. The national government since its organization had been silent. It finally thought proper to act. The railroads were then informed that. unless suitable drawbridges were constructed so that steamers might pass through unhindered, their bridges would be removed. In other words, the dormant power of the Constitution was aroused, and the railroads, the creatures of the state, whose action had been theretofore lawful, turned the listening ear and caught the words of that mandate and swiftly obeyed. The creation of the Interstate Commerce Commission; the enactment against arbitrary and discriminating rates of the anti-trust law forbidding combinations in restraint of trade, held directly applicable to railroads, even though chartered by the states; the law denouncing rebates, and forbidding passes in interstate traffic; the law forbidding a railroad engaged in such commerce from dealing in commodities like coal, which it transports (Railway v. I. C. C., 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515); all such legislation culminating in the power exercised by the most recent enactment, intrusting the commission, which is the agent of Congress, with the power to fix rates, and the bill to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon, enacted in the closing hours of the last session-are familiar illustrations of the exercise of the right and power of Congress to control such commerce. It is not difficult to foresee that this power may speedily be extended to reach and to paralyze the action of those daring financiers who water the stock of corporations engaged in interstate. traffic, and who by this perilous expedient not only compel the public to pay interest upon evidences of fictitious values thus created, but endanger the stability of all business by the panics they engender and the calamities they threaten. In the meaning of the commerce clause, it is thus made clear that the words "to regulate" impart the right and power to enact laws, and not merely to make rules and regulations. The necessity for such right and such power, more than all things else contributed to the very establishment of the government of the United States itself. Said Chief Justice Marshall in Brown v. Maryland, 12 Wheat. 444, 6 L. Ed. 678:

"The oppressed and degraded state of commerce previous to the adoption of the Constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the

control over this important subject to a single government. It may be doubted whether any of the evils proceeding from the feebleness of the federal government contributed more to that revolution which introduced the present system, than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states. To construe the power so as to impair its efficacy would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full convietion of its necessity."

This power exists in all the pristine vitality in which it was implanted in the organic law. That law does not profess to enumerate all the means by which its powers may be executed. In the nature of things such enumeration was impossible. Said Chief Justice Marshall in Martin v. Hunter, 1 Wheat. 326, 4 L. Ed. 97:

"The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution."

Specification of the means for its proper control have enlarged with the evolution of the nation. In the creation of national banks, in authorizing corporations for the building and maintenance of bridges and highways, in the erection of lighthouses, in the annual expenditure of millions for the improvement of the interior waterways, the exterior harbors and the channels of access thereto, and in many other ways Congress has defined and utilized such means. In the well-known case of United States v. Greene and Gaynor (D. C.) 146 Fed. 803, it was held that the power of Congress to regulate and improve navigable water found its authority under the commerce clause. It follows that when a corporation or other person engages in this commerce, eo instanti the men who control it and the corps of its employés become subject to all of those legitimate means which Congress may select for its regulation.

Nor is the enactment of such measures as that under consideration a novel or unusual power on the part of government. Our own state, it seems, was the pioneer in a measure of partial relief from that strict rule which was first enunciated in England in 1837, which forbade the recovery by an employé for injuries inflicted by the negligence of a fellow servant. The Georgia law upon this subject was enacted in 1856 so far as it related to railroads. In 1862 Iowa abolished the fellow servant bar as to trainmen, and in 1874 Kansas did the same thing. In 1885 the state of Alabama adopted similar legislation, and in 1893 Arkansas qualified the doctrine as to railroad employment. Minnesota followed in 1887. Florida, Ohio, Mississippi, and Texas have modified the doctrine for the benefit of employés. North Carolina, North Dakota, Massachusetts, Wisconsin, and Minnesota denied its applicability to the operation of railroad trains, and in 1901 Colorado abolished the doctrine in toto. Nor have foreign governments been inattentive to this great and unreasonable injustice to that splendid body of citizenship upon whom so much of the prosperity of the nation must depend. In 1888 England denied its application to those engaged in the operation of railroad trains, and in 1897 made it also inapplicable