dissenting. — I am unable to concur in the conclusions announced in the foregoing opinion, and will proceed, with brevity, to state the grounds of my dissent:
I. The defendant transfers its passengers and express matter at Omaha, to the cars used upon the Union Pacific railroad. Its cars are hauled from its terminus at Council Bluffs, which is upon the east, side of the Missouri river, on the Union Pacific railroad, by the engines of the transfer company, or of the Union Pacific Railroad Company, to Omaha, *357on the west bank of the river. The east and south trains are made up of cars to which passengers and express matter have been transferred at Omaha, from the cars of the Union Pacific Railroad Company. Transfers are made at that place to and from the cars of defendant, and its officers have charge of such cars and control their transportation between Omaha and Council Bluffs.
It is not pretended that the roads of defendant and the U. P. R. Co. aré, by any contract or arrangement, so united as to form a continuous line of railroad for the transportation of passengers and property without change of cars. There is, in fact, a transfer of passengers and express matter from the cars of one road to the cars of the other as the business of the two corporations is and. ever has been managed. This transfer is at Omaha. The western terminus of defendant’s road and the eastern terminus of the Union Pacific railroad are at Council Bluffs, upon the border of this State. The transfer of passengers and property transported by these roads, from one to the other, is made just beyond and without the jurisdiction of Iowa and within the State of Nebraska.
The statute of this State, brought in question in this case, does not require and render obligatory the transfer of freight ■and passengers, or prohibit the operation of the two roads as a continuous line for transportation without change of cars. It simply prescribes the place of transfer, when transfers of the subject of transportation are actually made from the cars of one road to those of the other. The same is true of the ordinance of the city of Council Bluffs involved in this case. A careful reading of the statute and ordinance cannot fail to carry conviction to the mind of the correctness of this conclusion.
II. Having reached the foregoing conclusions as to the facts disclosed by the record, and the true effect and object of the statute and ordinance brought in question, I proceed to inquire whether they are in conflict with the Constitution of the United States. Art. I, Sec. 8 of that instrument, confers upon Congress power to regulate commerce between the States. I do not doubt that transportation is a constituent of commerce and, therefore, the regulation of transportation *358is the regulation of commerce itself.' The cases cited in the foregoing opinion, and other decisions' of the United States Supreme Court, establish this doctrine. But does the statute of the State under consideration assume to so “ regulate commerce ” as to usurp authority exclusively vested by the constitution in Congress?
It is, I believe, now the settled doctrine that the States may exercise legislative power, as conferred by their respective constitutions, in all cases but those falling within the following exceptions:
“1. When the power is lodged exclusively within the Federal Constitution.
“ 2. Where it is given to the United States and prohibited to the States.
“ 3. Where, from the nature and the subjects of the power, it must necessarily be exercised by the National Government exclusively.” Gilman v. Philadelphia, 3 Wal., 713.
It clearly appears from the context of this quotation, that the court must be understood, by the language of the first and ■second paragraphs, to declare that the power must be exclusively conferred upon the United States, or prohibited to the States by express terms. Justice Story,'in1 Houston v. Moore, 5 Wheaton, 1 (49), announces the doctrine that powers, granted by the Constitution to the Federal Government, “ are never exclusive of similar powers existing in the States, unless where the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompetency in the exercise of it by the States.” It cannot b.e claimed that the Constitution, in express terms, confers upon Congress the power to legislate upon the subject of the State statute under consideration.
In Gilman v. Philadelphia, supra, a case involving the construction of the section of the constitution conferring power upon Congress to regulate commerce, it is declared that “ whether the power, in any given case, is vested exclusively in the general government, depends upon the nature of the subject to be regulated.” In another case, The Reading *359Railroad Co. v. Pennsylvania, 15 Wall., 232, the following rule is laid down, which, applied to the subject to be regulated, enables us to determine whether the power to regulate is exclusively within the United States. It is this: “Whenever the subjects, over which a power to regulate commerce is asserted, are in their nature national, or admit of one uniform • Vv J system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by Congress.”
We must inquire whát is the subject of the regulation prescribed by the statute of Iowa which is now before us? I have answered the question in the foregoing statement of the effect and object of the law. It is the place of making transfers of property carried by railroads, from the cars of one road to those of another. It must be admitted that this'pertains to and affects transportation which, as I have said, is a constituent of commerce. But it is not, in fact, a regulation of transportation — commerce, which is within the class of. subjects that are national in their character, or admit of one uniform system. It belongs to that class of subjects which pertain to the duty of corporations exercising the functions of common carriers, and to the authority of the State to prescribe rules governing the manner of the exercise of power' and rights conferred by the State upon'such corporations. It_ is clearly within the police power of the State. Of this class of subjects may be reckoned regulations fixing the rate of speed of cars, prescribing a tariff of charges, forbidding the running of trains on Sunday, and providing protection for persons and property transported upon railroads.
Any city of the State may prescribe by ordinance the place at which passengers and freight shall be received and discharged by railroads operating within its limits. It may also fix a place for the transfer of passengers and freight voluntarily made by one railroad to another, each having its terminus within the city. Surely the State may do the same thing; when transfers are made, it may prescribe the place thereof. And this alone is the object and effect of'chapter 6, Acts, 1872, the statute in question in this case.
*360Onr Code is not wanting in provisions affecting railroads similar in character and founded upon the very authority under which this statute is enacted. Section 1292 of the Code is in this language: “Any railway corporation operating a railway in this State, shall, on request, permit the railway operated by any other company to connect therewith,- and shall draw over its railway the cars of such connecting railway, at reasonable terms, and for a compensation not exceeding its ordinary rates.” Here is a statute regulating transportation, a constituent of commerce, whereby a railroad company, unwilling to operate its road in connection with another as a continuous line, may be compelled to do so at the will of the corporation owning the connecting road. The provision prescribes the duty of the corporation 'required to connect its road with another, and the manner of discharging its functions as a common carrier, and directs the exercise of its corporate powers conferred by the State. An unwilling-railroad company is compelled to draw tlie cars of another corporation for the ¡public good. The statute pronounced unconstitutional by the majority of this court, requires unwilling-railroad companies to transfer the subjects of transportation at such places as the legislature has determined the public good requires, or is demanded by sound public policy. I am unable to distinguish between the principles of the respective enactments, or to discover a source of legislative power that is not common to both. Surely my brothers ai*e not prepared to hold the statute just quoted, and all other enactments based upon the same constitutional principles, which are numerous, void because they are in conflict with the Federal Constitution.
- III. The objection urged against the statute on the ground that it is intended to and does operate without the limits of the State, and is, therefore, an attempt of the State to exercise authority beyond its jurisdiction, is, in my opinion, not founded upon facts. The statute requires defendant, a corporation created under the laws of the State and opor-ating a railroad within its borders, to make its transfers, where transfers are made, in the State. The corporation and road are *361subject to the authority of the State, and the act required is to be done within the State. Surely, then, the statute cannot be said to operate out of the State. Its consequences, it is true, may extend beyond the State limits, and the same thing is true, in a greater or less degree of almost all statutes. All laws of the State affecting railroads having connections or parts of their lines out of the State, in their consequences reach beyond our borders and affect the connections or portions of the road found there.
It is urged that, if transfers which are now made at Omaha must, under the statute, be made at Council Bluffs, this operates to forbid transfers at the city first named, and, therefore, has effect out of the State. But, if it prevents transfers at Omaha, this is accomplished through the consequences of the enforcement of the statute, and not in obedience to the laws of the State. The enforcement of the statute within the jurisdiction of the State creates a necessity which operates upon and controls subjects and persons without the the borders of the State. Our laws and police regulations affecting trade thus extend, in their consequences, to every State and country with which our people hold commercial relations. I forbear to illustrate the ■ argument by showing any of the numerous instances where the laws of the State, in their consequences, affect persons and property in other States. Due reflection will bring to mind such instance anologous to the case, under consideration, and will evolve and apply arguments in support of the position I maintain.
IY. Upon the subject of the statute — the transfer of passengers and freight by railroads to connecting lines of transportation, Congress has assumed no control. The act of June 15, 1866, referred to in the opinion of the majority, provides for the connection of railroads, “ so as to form continuous lines for the transportation (of freight and passengers) to the place of destination.” The law is within the scope of the constitutional power of Congress, being a regulation of inter-state commerce. But it makes no provision as to the place or manner of the connection of railroads; neither does it make such connections obligatory. It authorizes connections, which no *362State may forbid, but it extends no farther. The acts of July 2, 1864, authorizing the construction of the Omaha bridge, and of February 24, 1871, empowering the Union Pacific Railroad Company to issue bonds for that purpose, with other statutes pertaining to the subject, all of which were.cited by counsel for defendant, and are, I believe, referred to in the foregoing opinion, contain nothing upon the subject under consideration different in effect from the act first referred to above. They do not enforce or require the connection of railroads so as to form continuous' lines, nor forbid transfers of the subjects of transportation from the cars of one railroad to those of another. No regulations are prescribed governing the place and manner of such transfers. As this is a subject of legislation not within the Federal jurisdiction- it was not .intended to bo touched in any of the various enactments just enumerated, each of which presented the occasion for and an invitation to the exercise of the power over it, were that power possessed by the General Government.
Y. In my opinion the conclusion of fact, announced by my brothers in the foregoing opinion is incorrect, namely, that, if the statute in question be enforced, two transfers instead of one would, or might be required, one at Omaha and the other at Council Bluffs, resulting in delays and expenses to transportation beyond what is imposed by the transfer at Council Bluffs alone, which is required by the statute to be made by defendant. It is insisted that an obstacle to free commercial communication would be thus created. I am free to declare that I could look in no friendly spirit upon any statute, either state or national, the design or effect of which should be to fetter commerce and impose unjust and unnecessary restrictions and prohibitions upon the free, cheap and expeditious transportation of persons and property. I would eagerly seek, and earnestly hope to find, some constitutional ground upon which such legislation could be declared void. - But whether it can be found, I am not now called upon to determine, for I have a clear and most positive conviction that no such objection, in fact, exists to the statute now under con-. sideration. A brief statement of the facts of the case dis*363closed by the record will; in my opinion, render plain the correctness of my position. • .
The eastern terminus of the Union Pacific Railroad is in Council Bluffs, and the cars of defendant are drawn over the track of that road, which extends across the bridge, from the depot of defendant in Council Bluffs to Omaha. No other railroad extends from Omaha to Council Bluffs. The Union Pacific Railroad Company has a depot, station and grounds for the transaction' of business at Council Bluffs, which are called Transfer Grounds. The distance from the ground to the Union Pacific depot at Omaha is not shown by the record, but we are warranted in inferring therefrom, that it is not to exceed two or three miles. The subjects of transportation involved in this action are such as are carried in defendant’s cars to and from Omaha, and there transferred to the cars of the Union Pacific. Railroad Company. Now, from this statement of facts, it is obvious that freight and passengers destined for Omaha are not within the contemplation of the statute, for when they reach that city in defendant’s cars they are not transferred. Arriving at the place of destination they require transportation no farther and therefore it is impossible to imagine that they are put upon .the cars of any other railroad. As to freight and passengers destined to Omaha, the defendant’s road and that of the Union Pacific Railroad Company form a continuous line. The statute, as I have shown, cannot apply thereto. Indeed, I understand, from the record, that plaintiff complains only of the action of defendant in regard to the subjects of transportation carried beyond Omaha; certain it is, of nothing else can it complain. Passengers and freight, then, destined for Omaha are not transferred at Omaha, .'and the statute does not require that they should be transferred at Council Bluffs. As to these it is plain that the statute is not obnoxious to the objections under consideration.
YI. In regard to the passengers and freight which must be transported upon the Union Pacific Railroad in order to be carried to their destination the case is equally plain. If, as required by the statute, they bé transferred to the cars of that road at Council Bluffs, there can be no other transfer. If the *364Union Pacific Bailroad Company cause them to' be taken out of its own cars and put into others owned by it; or operated upon its road, at Omaha or any other point upon its road, this would not be a transfer according to the meaning of the word as used in the statute and understood by all men when applied to the business of railroads. There can exist no necessity for such a course of business, and there can be no presumption that it ever was or ever will be pursued. But if pursued, whether wantonly or for some sufficient reason, it would not be brought about because of the transfer required by .the statute at Council Bluffs.
It is not claimed that the legislature of Nebraska or Congress has enacted any law requiring the Union Pacific Bail-road Company to change its cars at Omaha. Such legislation, I presume, would hardly be attempted by the State named, as the corporation, which would be affected thereby, derives its existence from Congressional legislation, and Congress, it cannot be supposed, would thus place restrictions and impediments upon inter-state commerce. As such legislation can only exist in imagination, it is vain to inquire into its validity. This subject is only noticed here for the reason that future legislation of this character, whereby a transfer would be required by law to be made in Omaha, is urged as the ground for claiming that the enforcement of our statute would occasion the delay and expense incident to two transfers instead of one.
. It is an appropriate connection here in which to remark that, in my opinion, the State statute does not forbid the Union Pacific Bailroad Company to receive the cars of defendant at Council Bluffs to be drawn to the places of destination of the property with which they are ladened. In that case there would be no transfer of freights or change of cars. The transfer of cars, as explained in the opinion of the Chief Justice, would occur at Council Bluffs, and if the law applies to that act — if the term transfer used therein relates to the act of changing cars from one road to another, it would be done at Council Bluffs; in fact, it could not be done at Omaha for defendant’s road does not extend to that city. The law in such cases, if applicable thereto, would not be violated.
*365' TIL I will next consider the case of freight and passengers having points of destination beyond Omaha, or transportation from such points upon railroads, other than the Union Pacific, to and from Omaha, which are carried through Council Bluffs. These roads, it will be remembered, do not reach Council Bluffs, and therefore do not connect with defendant’s road.
It will be readily understood that, if the subjects of transportation are carried upon these other roads, the Union Pacific and defendant’s road, without change of cars, such a course of business would not be within the contemplation of the statute in question, for the roads would be operated as continuous lines, and there would occur no transfers provided for by the statute.
It will be readily seen that in cases where the railroads referred to are not operated as continuous lines, and there is in fact a transfer of freight and passengers from and to the cars of defendant before their destination is reached, the requirement that such transfer be made at Council Bluffs does not create a necessity, nor require, for convenience of business, another transfer to be made at Omaha. If freights and passengers destined for points, east of Council Bluffs are carried to Omaha by the Nebraska railroads and there transferred to the Union Pacific railroad, I discover no escape from the conclusion that they must be regarded, when they reach Council Bluffs, as all other subjects of transportation carried by that railroad. Freight carried by defendant cannot be transferred to the Nebraska roads (other than the Union Pacific), because there is no connection between them. Freights and passengers transferred in either direction, for this reason, must, of necessity, pass- into the hands of the Union Pacific Railroad Company, being transferred to and from it. Now the fact that the subjects of transportation are transferred from or to the cars of a connecting railroad by the Union Pacific, cannot be the grounds of an objection to the transfer at Council Bluffs instead of Omaha, when such transfers are actually made to and from the cars of roads terminating at Council Bluffs. It will cause no greater expense and delay *366for the Union Pacific company to draw the cars of the connecting Nebraska road to Council Bluffs, its terminus, fór the purpose of making transfer there, than to take defendant’s cars to Omaha for that object. The law, then, imposes no necessary expense or delay. It is true that the Union Pacific company may, if the transfer is made at Council, Blluffs, require another to be made with its connecting lines at Omaha. But as neither the course of business generally pursued by railroad corporations and other carriers, nor the interests understood to prompt the action of the Union Pacific Railroad Company in the transfer controversy, which will be presently referred to, can require transfers, in anjr case, to be made both at Council Bluff's and Omaha, but on the contrary forbid it, I cannot presume that it will ever be done. As before remarked in reference to future legislation, it would be vain to consider the power and right of the Union Pacific Railroad Company to pursue such a course, or its effects upon commerce, where its future occurrence is so highly improbable.
Will. It is a matter of notoriety, the world over, that this transfer controversy has its origin in interests growing out of and connected with the bridge over the Missouri river, upon the line of the Union Pacific Railroad. ‘ A great part of the commerce between the Pacific States and the rest of the Union must be carried over this bridge. It is brought to Council Bluffs or carried thence by several important railroads, among them the line owned by the defendant. Westward of the Missouri river it is carried by the Union .Pacific Railroad. The bridge was built by the Union Pacific Railroad Company under authority conferred by Acts of Congress of July 2, 1864, and Februry 24, 1871. 13 U. S. Statutes at Large, 360; 16 Id., 430. By the last named statute the Union Pacific Railroad Company was “ empowered, governed and limited by the provisions” of the Act of July 25, 1866, authorizing the building of a railroad bridge at Quincy, in the State of Illinois. 14 U. S. Statutes at Large, 244. The act last mentioned authorizes all trains of all railroads terminating at the place where the bridge is erected, Council Bluffs, to cross it “for reasonable compensation to be made *367to the owners of the bridge.” If the trains upon the Iowa roads terminating at Council Bluffs are required to make connections at Omaha, and transfers are made there, tolls are levied thereon by the Union Pacific Railroad Company on account of the use of the bridge. If the point of connection and transfer be at Council Bluffs, the Union Pacific Railroad Company’s trains cross its-own bridge and it thereby loses the toll which, if other roads crossed the bridge, it would levy upon its connecting roads. The reason why (the Union Pacific Railroad Company refuses to operate its road to its eastern terminus at Council Bluffs and requires transfers to be made at Omaha is thus made plain. But the grounds upon which defendant submits to this unjust requirement do not appear.
The question of the place of transfer is one of expense and exaction upon the commerce of the country. But this exaction occurs not through transfers made at Council Bluffs; it is levied by means of the transfers at Omaha. And yet I am surprised by the argument, sanctioned by the foregoing opinion of my brothers, that the transfer at Council Bluffs, required by the legislation of this State, imposes expense and burdens upon commerce.
The fact that Omaha is sought to be made practically the ■ eastern terminus of the Union Pacific Railroad, by the enforcement of transfers there, for the purpose of levying exactions and tolls upon the commerce transported over the bridge, is disclosed in the legislative history of this State .pronounced unconstitutional by the majority of this court. From that source I am authorized to derive judicial knowledge of the fact. The object 'of the law, as I understand it, is to prevent the evil thus threatened, by the unjust and unwarranted levy of tolls upon inter-state commerce.
It is my opinion that the judgment of the Circuit Court ought to be affirmed.