dissenting. — I. No fact, argument ’or authority has been brought to my attention upon the rehearing of this case which has diminished the confidence I possessed at the time of the announcement of the’decision of this court, in the views and conclusions presented in my dissenting opinion then filed. The reargument on the part of defendant, while of admitted ability, has developed nothing new in the case wdiich, in.my opinion, supports the decision of the majority of the court. I have, upon the rehearing, reviewed the whole *372ground of controversy, and though anxious to concur with my brothers find myself unable to do so. The fact that three of the Justices now on the bench, who have taken their, seats here since the decision of the cause, concur with the three who announced that decision, has stimulated me to greater care in the re-investigation of the case, and begotten, I must confess, a strong desire on my part to unite with them in their views of the law. But this inducement, strong though it be, has not, as it should not, overcome the convictions of my mind, planted upon the most thorough and careful consideration of the questions of which I am capable.
' The facts and law of the case, as I understand them, have hedged in the path I have followed; from it I could not depart.
II. I do not think it necessary to adduce now further arguments supporting the conclusions of my dissenting opinion heretofore filed. I shall confine myself to pointing out what I conceive to be errors and misconceptions of facts in the preceding opinion of Mr. Justice Adams. It is admitted in liis opinion that the restrictions imposed by the statute of the State in question would not “ ordinarily operate as a burden upon inter-state commerce.” But, it is said, “ if it may do so it cannot be upheld.” The opinion then proceeds to present certain supposed cases wherein the restrictions would have such effects. These cases I will proceed to notice, and I confidently expect to show that they are purely imaginary and will never occur in the prosecution of the business of the railroads, if common sense and the best interests of the railroad corporations control their affairs.
The first is the case of defendant’s cars, destined for Cheyenne, loaded with freight, partly consigned to that place and partly to San Francisco. It is not the custom of the managers of railroads to load cars with freight destined to several towns, but freight for the several stations is put in separate cars. No exception to the rule exists, except in case there is not enough freight, at the place where the car is loaded, consigned to a given station to fill it. Now, my brother’s supposed case is unfortunately chosen, for it is hardly probable that there *373ever will such, a thing occur — that less than a car load of freight in one train will ever be sent through to San Francisco. But suppose such a thing should happen, would it not be more reasonable and less expensive, if it should be put in a car with Cheyenne freight, to carry it through to San Francisco, discharging the Cheyenne freight, and if it be necessary, supplying its place with freight destined from that place to San Francisco? Surely, it would.
In the case supposed by my brother, there would be more transfers and handling, and consequently more expense, than by sending the San Francisco freight in a through ear and completing its burden with way freight at Cheyenne. In the case supposed by Mr. Justice Adams, the car returns empty from Cheyenne if it cannot be loaded with freight not in the hands of the Union Pacific Company. Surely, it cannot be thought the cars could or would be loaded with freight brought by the Union Pacific Company from points west of Cheyenne, thus making a transfer there from its cars to those of defendant. The case supposed, it will be readily seen, involves delay and expense in transferring freight, thus breaking a continuous line of railroad demanded by the wants of commerce and required by the laws of Congress under which the Union Pacific Railroad Company was organized.
III. The case of empty cars of defendant at Omaha equally fails to answer the purpose for which it is introduced.
If these cars are ladened with freight, not brought to Omaha by the Union Pacific Company, to be transported to points on defendant’s road, it will not be a violation of the State law in question. If they are loaded with freight from the cars of the Union Pacific Company, brought from the west, all there is of it is, that the last named company permits its cars to be idle while defendant’s are used between Omaha and Council Bluffs. But, how this can be regarded as a burden on commerce, I fail to understand.
It affects the earnings of the two companies; one or the other must carry the freight from Omaha to Council Bluffs. If defendant does not, it suffers loss. If the Union Pacific Company does not, it is the loser. But, how commerce is bur*374dened in either case, or more in one than in the other, in my judgment, cannot be made to appear.
IY. The last case put by Mr. Justice Adams is not within the contemplation of the statute in question. If defendant’s cars reach Kearney Junction by the Burlington & Missouri Biver Bailroad, and their freights are there transferred to the Union Pacific Bailroad, which is the case supposed, such transfer is not forbidden by the statute.
. The first section provides for transfer at the terminus of the roads. The second section do,es not forhid the Union Pacific to transfer freight to roads in Nebraska, to the Burlington & Missouri Bailroad, for instance. No construction forbidding ■such transfer can be placed on the act.
The statute therefore does not forbid the course of business contemplated in the third case supposed by Mr. Justice Adams. The cases to which the statute is at all applicable, in my judgment, are those in which burdens are imposed upon commerce by the course of business pursued by the railroad corporations.
Commerce requires ■ unbroken, continuous lines of transportation. The statute of the State tends to secure such a line over the full length of the Union Pacific Bailroad, and forbids it to be broken within two or three miles of the eastern terminus of that road, for the purpose of imposing a tax upon commerce by the levy of bridge tolls upon the cars of other corporations. The course of business advocated by my brother imposes burdens on commerce; the law of our State, which this court pronounces void, removes them.
Y. It is a familiar doctrine of the courts that a statute will not be declared unconstitutional except in clear cases. Doubts are to be solved in favor of the validity of a statute, and its incompatibility with the constitution must be obvious and admit of no doubt. •
The statute when capable of different interpretations must receive such a construction that it may be upheld. The opinion of Mr. Justice Adams holds the law of the State unconstitutional by applying it to imaginary cases, which we have: no warrant.in saying ever have or ever will occur; by construing *375it to impose burdens on commerce, when it in fact forbids tbein, and by an interpretation extending it to acts not within its purpose or the purview of its languagé. The opinion, in my judgment, disregards the doctrine to which I have just referred.
YI. It is not claimed that the statute of the State encroaches upon ground occupied by Congressional enactments. Under the charter of the Union Pacific Railroad Company, and other acts of Congress, the company is required to operate its road as a continuous line. It has been held by the United States Supreme Court, in Union Pacific R. R. Co. v. Hall et al., 91 U. S. (1 Otto.), 313, that the eastern terminus of the road is at Council Bluffs, and that it must be operated as a continuous line to and from that city. In that case a mandamus issued by the Circuit Court is sustained, which requires the road to be so operated, and forbids transfers to be made at Omaha. Thus, by the mandates of the Federal Court, the Union Pacific Railroad Company is forbidden to do the act which the State statutes declares shall not be done by the defendant. It will be remarked that the acts of Congress reach only the Union Pacific Railroad Company; they do not forbid other railroad companies to make or receive transfers to or from the Union Pacific Company. The law of this State, in imposing a duty or inhibition on defendant, does not include a subject legislated upon by Congrees. Its validity, therefore, is not affected by a Congressional enactment extending to the same subject.
While the decision in this case involves important constitutional doctrines and the exercise of the highest judicial powers, it will, I conceive, be of little practical importance.
The statutes of the United States, as interpreted and enforced in Union Pacific R. R. Co. v. Hall et al., supra, compel the Union Pacific Company to operate its road to Council Bluffs as a continuous line and forbid it to transfer freight at Omaha. If it can make no transfer at Omaha, the right of the defendant secured by the decision of this court, to receive freight transferred there, will be a barren right that cannot be exercised.