tation of goods from one state to another, Congress can alone act upon it, and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the state shall be unrestricted. It is only after the importation is completed, and the property is mingled with and becomes a part of the general property of the state, that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled."

After a minute and masterful review of the supreme power vested in Congress to regulate commerce, foreign and domestic, prior and subsequent to the "Act to Regulate Commerce," approved February 4, 1887, the court in the Minnesota Rate Cases declared with all possible emphasis that, from the beginning, the fact has always been recognized

"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 its review of that branch of the case, the court took occasion to say that state regulation of railroad rates began with railroad transportation. That the authority of the state to limit by legislation the charges of common carriers within its borders was not confined to the power to impose limitations in connection with grounds of corporate privileges; that it became a frequent practice for the states to create commissions, as agencies of state supervision and regulation, and in many instances the rate-making power was conferred upon such bodies; that while the authority of the state could not be extended to the regulation of charges for interstate commerce, its authority to "fix reasonable intrastate rates through its own territory" was put beyond all question; that it has never been doubted that the state could, if it saw fit, build its own highways, canals, and railroads; that it could build railroads traversing the entire state, and thus join its border cities and commercial centers by new highways of internal intercourse,

to be always available upon reasonable terms; and above all it held that

"Such provision for local traffic might indeed alter relative advantages in competition, and, by virtue of economic forces, those engaged in interstate trade and transportation might find it necessary to make readjustments, extending from market to market through a wide sphere of influence; but such action of the state would not for that reason be regarded as creating a direct restraint upon interstate commerce, and as thus transcending the state power. . . As a power appropriate to the territorial jurisdiction of the state, it is not confined to a part of the state, but extends throughout the state, to its cities adjacent to its boundaries as well as to those in the interior of the state. To say that this power exists, but that it may be exercised only in prescribing rates that are on an equal or higher basis than those that are fixed by the carrier for interstate transportation, is to maintain the power in name while denying it in fact."

After having thus defined, with minute precision, the ultimate question before it, the court solved it in these terms:

"To suppose, however, from a review of these decisions, that the exercise of this acknowledged power of the state may be permitted to create an irreconcilable conflict with the authority of the nation, or that, through an equipoise of powers an effective control of interstate commerce is rendered impossible, is to overlook the dominant operation of the Constitution, which, creating a nation, equipped it with an authority supreme and plenary, to control national commerce, and to prevent that control, exercised in the wisdom of Congress, from being obstructed or destroyed by any opposing action. But, as we said at the outset, our system of government is a practical adjustment by which the national authority, as conferred by the Constitution, is maintained in its full scope without unnecessary loss of local efficiency. It thus clearly appears that, under the established principles governing state action, the state of Minnesota did not transcend the limits of its authority in prescribing rates here involved, assuming them to be reasonable intrastate rules. It exercised an authority appropriate to its territorial jurisdiction, and not opposed to any action thus far taken by Congress."

Such was the path by which the court reached the following conclusions: first, that the failure of Congress to act on the subject leaves each state free to establish maximum intrastate rates for interstate carriers which are reasonable in themselves, although

the state's requirements may necessarily disturb the existing relation between intrastate and interstate rates as to places within zones of competition crossed by the state boundary line; 21 second, that the states continued to possess the right to prescribe reasonable rates for the exclusively internal traffic on interstate carriers after the passage of the interstate commerce act of 1887, and the amendment of June 29, 1906, although it may be that by reason of the interblending of the interstate and intrastate operations of such carriers adequate regulation of interstate rates cannot be maintained without imposing requirements with respect to their intrastate rates which substantially affect the former; third, that the question whether an undue or unreasonable preference or advantage to any locality forbidden by the interstate commerce act of 1887 arises from the operation of an intrastate rate as compared with an interstate rate, or whether any locality is thereby subjected to an undue or unreasonable prejudice or disadvantage, would be primarily for the investigation and determination of the Interstate Commerce Commission, and not for the courts, -assuming that such a case is within the statute. The status thus defined by existing laws, state and federal, says the court, is

"not opposed to any action thus far taken by Congress. It is the function of this court to interpret and apply the law already enacted, but not, under the guise of construction, to provide a more comprehensive scheme of regulation than Congress has decided upon. Nor, in the absence of federal action, may we deny effect to the laws of the state enacted within the field which it is entitled to occupy, until its authority is limited through the exertion by Congress of its paramount constitutional power."

With these emphatic declarations that Congress may, at its pleasure, so exercise "its paramount constitutional power" as to enact "a more comprehensive scheme of regulation" of the entire subject matter, such a scheme as may destroy the entire status as de

21 After referring in its opinion to interstate rates as those "fixed by the carrier for interstate transportation," the court makes a comparison between rates as prescribed by the state authority and those prescribed by the carrier. It then indulges in a presumption of reasonableness as to the state rate on the question of interference, but indulges in no such presumption as to the interstate rate. Considering the supervision of the Interstate Commerce Commission over interstate rates, should there not be a presumption of reasonableness of those rates? The court has been very careful to avoid any clash between the two presumptions.

fined by existing laws, — the court has transferred the problem of problems from the judicial to the political arena. Thus the burden has been cast upon our constructive legislators in Congress to devise such a new interstate commerce act as will be capable of adjusting all of the conflicting interests with which the court says it has no authority to deal. If the state railroad commissions as a whole should undertake to use their freshly defined powers in a radical and drastic spirit, and in such a way as to disjoint the interstate system of rates as a whole, a more comprehensive and far-reaching interstate commerce act, occupying the entire domain of federal power as defined by the court, might suddenly become a national necessity. It is therefore difficult to withhold a conjecture as to what would have been the result had the court set aside the state rates as an interference with interstate commerce. Possibly the day will come when such a result will be reached under a new interstate commerce act so drawn as to occupy the entire domain of federal power as the court has defined it.

The form of the judgment as prepared by Mr. Justice Hughes is as admirable as its substance. In it there is a happy blending of the scientific with the practical, of weightiness of thought with perfect lucidity of expression. He states the case with such precision, eliminating all irrelevancies of fact, and bringing out the essential matter in such bold relief in accordance with the legal principles it involves, as to carry conviction by sheer statement without argument. The ex-Governor of New York has seized upon a rare opportunity to erect for himself an enduring monument in a unique body of judicial literature built up by a line of jurists, a few of whom are destined to stand out in the time to come as the peers of Julianus, Gaius, Papinian, Tribonian, Portalis, Mansfield, and Rudolph Sohm.

WASHINGTON, D. C.

Hannis Taylor.

THE EXTENSION OF FEDERAL CONTROL
THROUGH THE REGULATION OF

THE

1

THE MAILS.

2

HE recent decision of the Supreme Court of the United States upholding the constitutionality of the so-called "newspaper publicity law" is of more than passing importance. Popular interest, of course, attaches chiefly to the fact that periodicals, in order to enjoy what the court calls "the exceptional privileges" of second-class rates, must print the semi-annual lists of their editors and stockholders, and mark as an advertisement any reading matter for the publication of which compensation is received. From a legal standpoint, however, the case suggests, but does not decide, several highly important constitutional questions.

As paraphrased in the opinion, the contention of the government was that the law merely "imposes conditions necessary to be complied with to enable publishers to participate in the great and exclusive privileges and advantages which arise from the right to use the second class mail," and that the provision was valid “as an exertion by Congress of its power to establish post offices and post roads, a power which conveys an absolute right of legislative

1 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (June 10, 1913).

2 37 Stat. at L. 553, ch. 389. The law requires publications entered as second-class matter (with a few exceptions) to furnish the post-office department and publish "a sworn statement setting forth the names and post-office addresses of the editor, managing editor, publisher, business managers, and owners, and, in addition, the stockholders, if the publication be owned by a corporation; and also the names of known bondholders, mortgagees, or other security holders; and also, in the case of daily newspapers, there shall be included in such statement the average of the number of copies of each issue of such publication sold or distributed to paid subscribers during the preceding six months. . . . Any such publication shall be denied the privileges of the mail if it shall fail to comply with the provisions of this paragraph within ten days after notice by registered letter of such failure."

A separate and concluding paragraph of the law provides "That all editorial or other reading matter published in any newspaper, magazine, or periodical for the publication of which money or other valuable consideration is paid, accepted, or promised shall be plainly marked 'advertisement.' Any editor or publisher printing editorial or other reading matter for which compensation is paid, accepted, or promised, without so marking the same, shall, upon conviction in any court having jurisdiction, be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500)."