WANTED A RAILWAY COURT OF LAST RESORT. 223 



the present Act of Interstate Commerce, by making that act su- 

 perior 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 com- 

 panies. 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 Com- 

 merce Commission, and never denied by the courts, that a rail- 

 road 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 repeat- 

 edly asserted, and are in this upheld by the highest authority,* 

 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 instru- 

 mentalities 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 Inter- 

 state Commerce Commission, to the regulations and the work- 

 ings and maintenance of a bridge over which freight having an 

 interstate destination is transported ! With such an interpre- 

 tation 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 con- 

 cerned. 



One of the jurisdictions proposed for such a tribunal of rail- 

 way last resort as I have suggested is that of restricting the con- 

 struction 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 exer- 

 cised 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 capi- 

 tal 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. 



