stifle competition or to discriminate against shippers or localities by giving undue preferences to some over others.

Congress in 1890 supplemented the Interstate Commerce Act by the act entitled "An act to protect trade and commerce against unlawful restraints and monopolies " familiarly known as the Sherman Anti-trust Law. (See post, page 247.) This latter statute is of universal application. It affects not only carriers but embraces "every contract or combination in restraint of trade or commerce among the several States.

The Sherman Act has been construed by the Supreme Court of the United States to embrace carriers and corporations operating lines of railroads, as well as persons and corporations engaged in the manufacture, production, and sale of commodities.

The provisions of the Interstate Commerce Act may now be read and studied in connection with the Sherman Act.

Object of the Act. The primary object of the Interstate Commerce Act was to place all shippers and all localities upon an equality, and to compel the carrier to treat all alike, and to make its charges and tariffs for the carriage of persons and property uniform for like service performed under similar circumstances and conditions. It also requires all carriers operating connecting lines to be treated impartially with respect to facilities for interchange of traffic, and forbids discrimination in rates between connecting lines. It requires that all charges made by the carrier for any service shall be just and reasonable.

This provision of the act is mandatory. Unreasonable charges are not only forbidden, but are declared to be unlawful and subject the guilty parties to liabilities and penalties, both civil and criminal.

In this connection Judge BROWN, in Interstate Com. Co. v. Baltimore Railroad, 145 U. S. 263, reviewed the purpose and object sought to be accomplished by the passage of the act. He observes in substance that prior to the passage of the act a number of States had passed laws to secure the public against unjust and unreasonable discriminations. The inefficiency of the laws which could not operate as to commerce passing beyond the State line, the impossibility of securing uniformity of State

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action, and the evils which grew up under a policy of unrestricted competition suggested the necessity of legislation by Congress under its constitutional power to regulate commerce among the States. The evils sought to be remedied by the act consisted principally in inequality of rates, refusal of carriers to furnish equal facilities to shippers, and connecting competing carriers. These evils were practiced and tolerated to promote individual interests, or for the benefit of some favored persons at the expense of others, or of some particular locality or community, or of some local trade or commercial connection, or for the destruction or crippling of some rival or hostile line.

The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation; to prohibit unjust discrimination in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities; to inhibit greater compensation for a shorter than for a longer distance over the same line under like conditions, and to abolish combinations for pooling freights. The statute was not designed to prevent competition between different roads or to interfere with the customary arrangements made by railway companies for reduced fares in consideration of increased mileage. This is authorized and is lawful where the reduction does not operate as an unjust discrimination against others using the road. See post, section 22.

The object of Congress in enacting the Interstate Commerce Act was to facilitate interstate commerce and restrict the arbitrary power of the common carrier. The intention of the act was not to deprive the shipper of any right which he might have invoked in any court prior to the passage of the act. The intention clearly was to facilitate the shipper in securing such right by creating new and special remedies for that purpose. These new remedies were intended to supplement and not to supplant the remedies which existed before the act was passed. Section 22 expressly declares these remedies to be cumulative and not exclusive, and declares broadly that nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies. Tift v. Southern

Railroad, 123 Fed. Rep. 789 (July, 1903, Circ. Ct. So. Dist. Ga.).

The Supreme Court has also declared the object of the supplementary legislation embraced in the Elkins Act of February 19, 1903, to be to furnish a remedy which should operate retrospectively and that its provisions were applicable to actions or proceedings pending when the act was passed. Missouri Pacific v. United States, 189 U. S. 274.

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Common-law Rule. Prior to the passage of the Interstate Commerce Act railway traffic in the United States was governed by the principles of the common law applicable to common carriers which," says Justice BROWN, " demanded little more than that they should carry for all persons who applied in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service, though the weight of authority in this country was in favor of an equality of charge to all persons for similar services." Interstate Com. Co. y. Baltimore Railroad, 145 U. S. 263.

The Interstate Commerce Act created no new right in the shipper. At common law a carrier was bound to receive and transport all goods offered on receiving reasonable compensation for such carriage. The carrier at common law could not lawfully enforce unreasonable charges. The difference in the cbligation of a common carrier and an individual, is that the former has undertaken a duty to the public. That duty imposed upon him the obligation to carry for all to the extent of his capacity, without unjust or unreasonable discrimination either in charges or in the facilities for actual transportation. Tift V. Southern Railroad, 123 Fed. Rep. 789 (July, 1903, Dist. Ct. So. Dist. Ga.).

The court in support of the proposition above set forth cited Atcheson v. Denver Railroad, 110 U. S. 667; Interstate Com. Co. v. Cincinnati Railroad, 167 U. S. 479.

This common-law obligation of the carrier is even stronger upon carriers who receive valuable franchises from the public. The universal reliance of the public on the instrumentalities of modern commerce renders their operation indispensible to the

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TERM

REGULATE."

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existence of modern social life. The act of Congress in so far as it prohibits and forbids the carrier from imposing unjust and unreasonable rates is an express adoption of the rules of the common law in this regard. By embodying this common-law right in the statute, Congress created no new right in the shipper, but provided for him a remedy in the Federal courts. Ib.

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Power to Regulate Power to Prohibit - Term "Regulate." -The power conferred by the Constitution upon Congress is defined as power to "regulate" commerce among the States and with foreign nations. In construing the word "regulate” in regard to the extent and limitations of the power thus conferred, the question has been raised as to whether Congress may prohibit any branch of interstate commerce and whether the power to "regulate" authorizes power to prohibit. The Embargo and Non-intercourse acts of 1808 and 1809 grew out of the encroachments sanctioned or allowed by England upon the rights of American commerce which became open and hostile, and finally culminated in the second war with England in 1812. These statutes not only assumed to regulate commerce, but to prohibit it in certain respects. The Supreme Court of the United States never questioned the power of Congress to pass these laws, nor was it adjudged that Congress exceeded its powers in enacting them. Schooner Paulina's Cargo v. United States, Cranch, 52; Sloop Active v. United States, 7 Cranch, 100.

The power of Congress to prohibit commerce was raised specifically in the lottery cases. (Champion v. Ames No. 2, 188 U. S. 321.) Congress passed an act (approved March 2, 1895, 28 Stat. L. 963, chap. 191) making it a penal offense to traffic in lottery tickets. The penalties imposed by the statute operated as a prohibition against such traffic. Defendant was indicted for a violation of the statute. He pleaded as a bar to the indictment the illegality of the statute, and claimed, among other things, that while Congress was given power "to regulate commerce, no authority existed giving it power to prohibit commerce. Counsel argued, therefore, that the lottery statute was unconstitutional and void. The court sustained the law, and held in considering the validity of the statute the court must con

sider the character of the traffic affected, and must determine whether it might constitute a nuisance or affect public health or morality. The court observed that there was no provision of the Constitution under which one could sustain a claim to engage in business which will result in harm to public morals. Congress, under the power to "regulate" commerce, may provide that it shall not be polluted. The liberty protected by the Constitution, embraces the right to be free in the enjoyment of one's faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts that may be proper. But it is no part of one's liberty that he shall be permitted to introduce into commerce an element that will be confessedly injurious to public morals, such as trafficking in lottery tickets. The Lottery Cases, 188 U. S. 321.

As a State may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress for the purpose of guarding the people of the United States against the "wide spread pestilence of lotteries," and to protect the commerce which protects all the States, may prohibit the carrying of lottery tickets from one State to another. In so far as such legislation may operate to prohibit such traffic it was declared to be valid and constitutional. Ib.

Commerce Defined. In construing the scope and extent of the commerce clause of the Constitution, the word "commerce" is defined to embrace navigation, intercourse, communication, traffic, the transit of persons, and the transmission of messages by telegraph. Lottery Cases, 188 U. S. 321.

Interstate commerce includes not only the exchange and transportation of commodities or visible tangible things, but the carriage of persons, and the transmission by telegraph of ideas, wishes, orders, and intelligence. Western Union Tel. Co. v. Pendleton, 122 U. S. 347; Rattan v. Tel. Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. 640.

Commerce Lottery Tickets. Lottery tickets have commercial value, even if the holder of such a ticket does not draw a prize; the ticket before the drawing has a money value in the market among those who choose to sell or buy it. Such tickets