(dissenting). The majority opinion, while strong and persuasive, fails to command my assent. Its advanced doctrine respecting the extension of federal jurisdiction under the interstate commerce clause of the Constitution conflicts with some deeply rooted notions entertained by me respecting federal limitations of power.
The defendant in error is a railroad corporation chartered by the state of Colorado. It is a narrow gauge road, 3% feet in width, with only 10 miles of main line, and two branches 18 and SO miles in length, respectively. It runs exclusively within the county of Boulder. For some reason, not quite apparent, one of plaintiff’s witnesses was permitted to testify that connection could be made with this narrow gauge road at Boulder by other narrow gauge line extending through the state of Colorado into New Mexico, at Santa Fé. The actual geography and *334general railroad guides show that to accomplish this the carriage would have to be made from Boulder to Denver, over an inside narrow gauge road on the Colorado Southern, a distance of 39 miles; then from Denver to Leadville, over the highest mountain range traversed by any narrow gauge road in Colorado, on a line owned by the Colorado Southern, to Leadville, nearly due west, a distance of 157 miles; then from Leadville to Salida, over the D. & R. G. Railroad in an easterly direction, 60 miles; then from Salida to Alamosa, on the same road, directly south, 85 miles; then from Alamosa to Antonito, south, 38 miles, to the line between Colorado and the Territory of New Mexico, on this D. & R. G. Railroad, which is extended from there to Santa Fé, 135 miles. To say nothing of this zigzag course of the different narrow gauge roads, a shipment over them to New Mexico would cover a distance of between three and four hundred miles, whereas a shipment by direct line, by broad gauge, would not exceed 380 miles, avoiding the mountain climbing. In the absence, however, of any evidence of any such interstate shipment having ever been made, the importance or the relevancy of this testimony is not apparent.
The right of the state to'grant charters whose functions are to be exercised solely within the territorial limits of its sovereignty is unquestionable. So long as it exercises only the powers granted, and performs only the functions incident to its creation, it is not subject to the supervision or interference of the federal government. While the power to regulate commerce with foreign nations and among the several states is conferred on Congress, the exclusive jurisdiction of the state over intrastate commerce is reserved to the state. How a railroad chartered by and'exclusively operated within the- state shall be equipped, and what shall be its duties respecting the carriage of freights and towards its employes, are within the exclusive jurisdiction and discretion of the state. Under the law of the jurisdiction of its creation the defendant railroad, company is a common carrier of passengers and freights. As such it must accept and carry over its line all proper subjects of traffic, by whomsoever tendered, no matter from where it comes; whether' from within or without the state. It is not permitted to inquire whether it comes from a given place in the state of Colorado or from a point outside of the state, or how it came to it. When offered to it for transportation, no matter 'by whom tendered,'it has no discretion to refuse to carry it. By the law of the state creating it, and endowing it with its faculties as a common carrier, it has the right to say: This company will receive and bill the article for carriage over its independent line, limiting its responsibility by the local íaw and charging the rates for the carriage authorized by the law of Colorado, and not otherwise.
' In respect of the shipments in question, the evidence, in brief, shows that the consignment from Omaha passed over the Union Pacific Railroad, a broad gauge line, to Boulder, where the goods were transferred for carriage to the defendant railroad company, but not on any through billing or under any joint arrangement for a continuous carriage. The' bill of lading issued for the carriage from Boulder to destination on the defendant road was issued by the defendant. The charges for the carriáge over the Union Pacific to Boulder were so much; *335and the carriage from Boulder over the defendant company was for a separate and distinct amount. The other shipment was a consignment from Kansas City., Mo., to Denver by the Atchison, Topeka & Santa Fé Railway, where it was rebilled by the Colorado & Southern road from Denver to Salida, the Colorado & Southern connecting with the defendant road at Boulder. The billing showed that the charges from Kansas City to Denver were $2.45, and from Denver to Ward $1.23. So the shipment was under separate billing contracts, for separate and distinct charges, and the shipment from Denver to Ward was essentially an intrastate shipment. The Colorado & Southern “paid the Santa Fé all that was due them on the shipment up to Denver.” The witness introduced by the plaintiff said the shipment was billed from Denver to Salida, and “was simply handled as a shipment passing through Boulder.” In .answer to the question when the cars were brought in by the Union Pacific carrying shipments from points without the state, the witness said they were not handled by the crew or engine of the defendant company, and the crew of the defendant company did not handle the engines and cars from points without the state of Colorado. But, says the majority opinion:
“The rehilling practiced by the railroad company without any new consent or contract with the owners could not destroy or affect the interstate character of the shipment or of the transportation.”
I cannot accede to the proposition that the consignor of the goods, by delivering a package at Kansas City, Mo., to a railroad company there, addressed to a point on the defendant’s local road, without consultation with or the consent of the local road, can thereby impart to the article such character of interstate commerce as to compel the local road to carry it as such, subject to all the incidents of being engaged in interstate commerce. The receiving carrier at Kansas City, without the consent and co-operation of the local carrier, could make no arrangement for the through carriage with the consignor as would bind or affect the independent local road. The carrier at the initial point can make, any arrangement it sees fit for carrying the package over its line and any connecting line, extending into the state of Colorado ; but when the carriage reaches the terminus of the through line, and the package is brought to the local line for further transportation, it must take and carry it over its line, not by virtue of any interstate law or regulation, but by reason of the obligatory force of the law of Colorado. It has the right to say: This company will receive it when tendered, but it will issue its own bill of lading, fixing then and there for the first time the terms of the contractual relation between the shipper and it, and make its own charges under the local law of the state of Colorado. Unless these conditions are assented to it may decline the shipment; and when it does take it on its own bill of lading, to be paid for according to its schedule rates, the consent of the shipper to its terms is implied without more. This new billing agreement for the first time establishes the relation of consignor and carrier between the shipper and the local railroad company. And I deny the power of Congress to step in and say to this creature of the state, thus acting within the terms of its charter: You shall not carry this article unless *336you dismantle your car of the equipments permitted by the state and equip it in such fashion as Congress directs, and if you do not comply you will be penalized to the extent of the discretion of Congress. Such road doing a local business with no joint traffic arrangement with other carriers, issuing its own bill of lading, and charging for the carriage independent of any other carrier over whose lines the goods may have traveled, would not be subject to the provisions of the interstate commerce act, nor subject to the direction or supervision of the Interstate Commerce Commission. It would not be required to file its schedules of rates with the Interstate Commerce Commission, for the palpable reason that it is not engaged in interstate commerce traffic within the meaning of the act of Congress.
The Daniel Ball Case, 10 Wall. 557, 19 L. Ed. 999, relied upon in the majority opinion, involved the single question of the authority of the general government to license a vessel engaged in transportation on its navigable waters. By the act of Congress of July 7, 1838 (5 Stat. 304, c. 191), it was made unlawful for the owner, master, etc., of any vessel propelled in whole or in part by steam to transport any merchandise or passengers upon the bays, lakes, rivers, or other navigable waters of the United States without having first obtained from the proper officer a -license under existing laws. And the amendatory act of August 30, 1852 (10 Stat. 61, c. 106); provided for the inspection of vessels so engaged. In answer to the lilpel presented against it for running without a license, the company disclosed that the steamer was employed in the navigation of Grand river between the cities of Grand Rapids and Grand Haven, within the state of Michigan, for the transportation of merchandise and passengers between those places, and that some of the goods shipped at Grand Rapids and carried to Grand Haven were destined and marked to places in other states than Michigan, and that some of the goods received came from other states and were destined to places without the state. It was, held by the Supreme Court that it was subject to the license regulation.
It must be kept in mind, in applying the language of Mr. Justice ’Field in the discussion quoted in the majority opinion, (1) that the question pertained to the jurisdictional power of the United States over its navigable waters, and the act of Congress in question was bottomed upon that basis of governmental control; (2) that the vessel in question was not a railroad or conveyance chartered by„ the state, deriving its powers and functions from the state as an instrument of intrastate transportation; , and (3) that there was no rebilling of the goods by the vessel evidencing and limiting its duties, and undertaking solely for the carriage over its own local line from one point to another within the state, making its own independent charges for the separate services rendered by it. So when the learned 'justice was confronted with the argument here made respecting the attitude of a local state railroad, he said:
“It is said that if the position .here asserted be sustained, there is no such thing as the domestic trade of a state; thát Congress may take entire control of the commerce of the country, and extend its regulations to the railroads within a state on which grain or fruit is transported to a distant market./; We answer .that the ..present case relates to transportation on the *337navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state.”
When he thus spoke to the rule as applied to the power of Congress “to regulate an agency employed in commerce between the states,” it will be observed that he referred to the instance “when that agency extends through two or more states,” and not the instance where it is confined in its action entirely within the limits of a single state; from which it is clearly inferable that the jurisdiction of the United States is invoked only when the two1 agencies act in combination. This distinction is aptly illustrated by the case of Gulf, C. & S. F. Railway Company v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540. In that case the state of Texas recovered in the local court a judgment against said railway company for $100 for extortion in a charge for the transportation of a car load of corn from Texarkana, Tex., to Goldthwaite, Tex. In December, 1901, the Samuel Hardin Grain Company, of Kansas City, Mo„ offered to sell Saylor & .Burnett, at Goldthwaite, Tex., the corn in question, for delivery on the railway track at Goldthwaite. The corn to fill this contract was shipped from Hudson, S. D., and started to its destination. This was intercepted at Kansas City, Mo., by some conventional arrangement between the parties, and from Kansas City it was shipped over the Kansas City Southern Railway to Texarkana, Tex., on a bill of lading under shipper’s orders to notify the commission company at Texarkana, Tex. The minimum interstate rate from Hudson, S. D., to Goldthwaite, Tex., was 46 cents per hundred, apportionable as follows: 18 cents from Hudson to Kansas City, and 28 cents from Kansas to Goldthwaite, Tex. The defendant railway company and the Kansas City Southern, with other connecting lines from Kansas City to Goldthwaite had established a joint tariff of 35 cents per hundred pounds. From Texarkana to Goldthwaite, Tex., the corn was reshipped to Goldthwaite over the Texas & Pacific Railway and the defendant company gave a bill reciting its receipt from the Hardin Grain Company, consigned to shipper’s order, “notify Saylor & Burnett, Goldthwaite, Tex.” It thus was forwarded after lying over five days in Texarkana. The only thing done by the agent of the shipper at Texarkana was to surrender the Kansas City Southern bill of lading and have the cars set over to the Texas & Pacific Railway, and taking a bill of lading from the latter. The defendant company was not a party to the bill of lading executed at Texarkana. The insistence of the railway company was that the shipment over the line in Texas was an interstate shipment, and therefore not subject to the local law of the state. The Supreme Court overruled this contention. Mr. Justice Brewer, who wrote the opinion in that case, distinctly held that the character of the shipment, whether local or interstate, depends on the contract of shipment, the rights and obligations of the carrier and shipper are reciprocal; that while the contract of shipment was from Hudson, S. D., to Texarkana, Tex., the *338-contract made at Kansas City for the sale of the corn did not affect the character of the shipment from Hudson'to Texarkana,'as'an interstate shipment; it still remained an interstate shipment. He then said:
“Tbe control over the goods in process of transportation, which may be repeatedly changed by sales, is one thingthe'transportation is another thing, and follows the contract of shipment,' until this is changed by the agreement ■of owner and carrier. * * * When the Hardin Company accepted the com -at Texarkana the transportation contracted for ended. The carrier was under no obligations to carry it further. * * * Whatever obligations may rest upon the carrier at the terminus of its transportation to deliver to some further carrier, in'obedience to the instructions of the owner, it is acting not .as a carrier, but simply as a forwarder. No new arrangement having been made for transportation, the corn was delivered to the Hardin Company at 'Texarkana. - Whatever may have been the thought or purpose of the Hardin Company in respect to the further disposition of the corn, was a matter immaterial so far as the completed transportation was concerned.”
He then likened the case to the purchase of a ticket for interstate ■carriage from an outside place to Texarkana, to go on to Goldthwaite. On his arrival at Texarkana he would not be entitled to a new ticket from Texarkana to Goldthwaite at the proportionate fraction of the rate prescribed by the Interstate Commerce Commission for carriage from the outside place to Goldthwaite. “The one contract of the railroad company having been finished he must make a new contract for his carriage to Goldthwaite, and that would be subject to the law of the state within which that carriage was to be. made.” Significantly •enough the learned justice concluded by saying:
“It must be further remembered that no bill of lading was issued from Texarkana to Goldthwaite until after the arrival of the com at Texarkana, the ■completion of the first contract for transportation, the acceptance and payment by the Hardin Company. In many cases it would work the grossest injustice to a carrier if it could not rely on the contract of shipment it has made, know whether it was bound to obey the state or federal law, or, obeying the former, find itself mulcted in penalties for not obeying the law of the other jurisdiction, simply because the shipper intended a transportation beyond that specified in the contract. It must be remembered that there is no presumption that .a transportation when commenced is to be continued beyond the state limits, and the. carrier ought to be able to depend .upon the contract which it has made, and must conform to the liability imposed by that contract.”
This, it seems to me, contradicts the postulate in the majority opinion that the rebilling practiced by the railroad company, without any ■new contract with the owners, would not destroy" or affect the interstate character of' the shipment and of the transportation. On the ■contrary, the position asserted by Mr. Justice Brewer is that the shipper at Kansas City and the receiving carrier could make no contract for a continuous- shipment therefrom which wpuld entitle them, without the concurrence and participation therein of the local railroad -company, to operate beyond the terminus of the through lines from Kansas City to Boulder, Colo. The distinct language is that notwithstanding the shipment of the corn in that "case began in South .Dakota, destined in its inception to Goldthwaite, in the state of Texas, yet when there was no through bill of lading to Goldthwaite, and to reach which the com had to be reshipped and rebilled over the local road in the state, the local road being no party to any through -continuous carriage, contract, its character as an interstate shipment *339did not obtain. He distinctly asserted that the transportation “follows the contract of shipment until that is changed by the agreement of owner and carrier.” And I deduce from that pronouncement that while the freight under the shipping contract for the carriage originating in one state to pass beyond the state lines becomes the subject of interstate commerce, it does not retain that character beyond the terminus embraced in the contract with the receiving carrier; so that when that shipment ends it must depend for its continuation upon a new agreement between the shipper and the local carrier, and is not, therefore, protected by the interstate commerce clause of the Constitution so as to exempt it from the qualities and liabilities of an intrastate shipment. According to said opinion, when the package in question, brought from Kansas City to Denver, and then rebilled over the Colorado & Southern Railroad and is taken from the latter’s cars and delivered to the local defendant railroad company, the party so delivering was not acting as a carrier, but simply as a forwarder for the shipper. The first contract having ended, the shipper “must make a new contract” for carriage over the local road, and, the points of this carriage being wholly within the state, it lost its character of interstate commerce at the point of delivery to the local road, in so far as it is concerned, as it takes it only under its contract evidenced by the new bill of lading, no matter what the purpose of the shipper may have been in starting it from Kansas City. In other words, it is not in the power of the original consignor — the shipper of the goods — to force upon the local state railroad the character of a common carrier of interstate commerce by simply addressing his goods to a point on the local railroad. He may send his goods to Colorado by railroad or by wagon; but when he brings it to the local road, to be carried over its line, wholly within the state, the relation of shipper and carrier is first established by the new contract or bill of lading. It seems to me to be a sufficient answer to the suggestion that, if each railroad company carrying such package over its line to the border of the state may then deliver it to another railroad to be carried over its line to another state border, it would operate as a fraud upon the interstate commerce clause of the Constitution to say this cannot take away the right of the local, independent road, declining to have any joint traffic arrangement with connecting lines, to refuse to take the article except on a new contract of carriage between it and the shipper to be delivered at a point on its own line, according to its own local established rates. The law is a sensible thing. It looks to substance and not to form. Of course, if railroad companies were to resort to the act of rebilling without more, as a mere subterfuge for evading the interstate commerce law of the nation, like any other fraudulent device, the law would disregard it. But there is nothing of this character in the case under review.
It is difficult to escape the conclusion that when the Congress framed the interstate commerce act of 1887 it had in mind the very principle recognized by the court in the Gulf, C. & S. F. Case, supra. For the first time in the history of the national government Congress undertook to prescribe by statute regulations for railroads as common *340carriers engaged in interstate commerce. In order that the railroad companies might be advised and understand what would constitute the individual roads carriers of interstate commerce, it defined it as applying to “any common carrier engaged in the transportation of passengers or property, wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management or arrangement, for a continuous carriage or shipment from one state or territory of the United States,” etc. Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], In view of the. knowledge Congress had that in instances this interstate carriage was effected partly by railroads and partly by connecting waterways, it declared that such through continuous lines operated “under a common control, management or arrangement” should be regarded the same as if the carriage were accomplished solely over railroad lines. It has ever been clear to my mind that it was not in the thought of Congress to limit the declaration as to what would constitute such common carrier to the instance of the transportation partly by rail and partly by water. The whole structure and connection of the paragraph do not admit of the restriction sought to be placed upon the act. From that day forth the courts and the railroads have regarded and acted upon the definition of what constitutes such common carrier engaged in interstate commerce.
Mr. Justice Shiras, in Texas & Pacific Railway Company v. Interstate Commerce Commission, 162 U. S. 197, loc. cit. 212, 16 Sup. Ct. 672, 40 L. Ed. 940, after quoting the provision of the interstate commerce act of 1887, said: '
“It would be difficult to use language more unmistakably signifying that Congress had in view the whole' field of commerce (excepting commerce wholly within a state) as well that between the states and territories as that going to or coming from foreign countries.”
Again in Cincinnati, New Orleans & Texas Railway Company v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, it was held that the Central Railroad of Georgia was engaged in an act of interstate commerce in transporting, from a given point to another in Georgia, freight originating at Cincinnati, Ohio, destined for Social Circle, Ga.; but that was under a through bill of lading, with a through charge and arrangement for a division of the entire charge among the roads contributing to the movement. But Mr. Justice Shiras, speaking for the court, took occasion to say:
“All we wish to be understood to hold is that when goods shipped under a through bill of lading, from a point in one state to a point in another, are received in transit by a state common carrier, under a conventional division of the charge, such carrier must be deemed to have- subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. When we speak of a through bill of lading we refer to the usual method in use by connecting companies, and must not be understood to imply that a common control, management or arrangement might not be otherwise manifested.”.
Further on he said (pages 191, 192, of 162 U. S., page 703 of 16 Sup. Ct. (40 U. Ed. 935):
“It may be true that the ‘Georgia Railroad Company,’ as a corporation of the state of Georgia, and whose entire road is within that state, may not be *341legally compelled to submit itselt to the provisions of the act of Congress, even when carrying, between points in 'Georgia, freight that has been brought from another state.”
The force of the foregoing utterances is not effectually parried by pronouncing them mere obiter dicta. The learned justice was speaking for the whole court. In the one case he was discussing the scope and purport of the interstate commerce act. It was pertinent to the argument leading to the conclusion reached. In the other he was discussing the application of the act to the facts of the case; and lest the language employed might be misunderstood and carried beyond the intendment of the court, he qualified and limited it by the quotation above made, for the express purpose of indicating the mind of the court touching the instance of a carriage without any conventional arrangement for a through shipment on a division of the charges. So when Congress came later to further legislate in the direction of the interstate commerce clause, in line with the jurisdiction assumed in the act of 1887, it is to be assumed that it had in mind its declaration in the former act as to what constituted a common carrier engaged in interstate commerce. In the act of March 2, 1893, which required railroad companies engaged in interstate commerce to equip their locomotives with driving wheel brakes and automatic couplers, it contented itself with designating them simply as “engaged in interstate commerce.” The fourth and fifth sections placed the matter under the supervision of the Interstate Commerce Commission; clearly showing that Congress regarded this legislation as allied to and supplementary of the policy inaugurated under the interstate commerce act of 1887. When the act of 1893 was amended in 1896 in respect of safety appliances, Congress again employed the term “any common carrier engaged in interstate commerce by railroad”; and in the sixth section thereof imposed upon the Interstate Commerce Commission the duty of aiding in the enforcement of the prescribed penalty against derelict railroads. The very men who designate themselves as “Inspectors,” who discovered this inconsequential, neighborhood road out in the mountains of Boulder county, testified that they were acting under the Interstate Commerce Comsion.
Having in the first act of 1887 clearly defined what constituted such •common carrier in interstate commerce, it was deemed sufficient in the additional allied acts to employ the term “any common carrier engaged in interstate commerce by railroad.” It dropped the phrase “partly by railroad and partly by water,” for the obvious reason that-driving wheel brakes and automatic couplers are inapplicable to water carrying vessels.
There is nothing on the face of the Acts of 1893 and 1896 to indicate any purpose, suggested in the majority opinion, to depart from and enlarge upon the conception of Congress as expressed in the original act of 1887 as to what was understood by the terms engaged as a common carrier of interstate commerce by railroad.
The suggestion as to the policy of Congress in the safety appliance act is aptly met by what Mr. Justice Field said in Hadden v. The Collector, 5 Wall., loc. cit. 111, 18 L. Ed. 518;
*342“What Is termed the policy of the government with reference to any particular legislation is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may he formed by different persons. It is a ground much too unstable upon which to rest the judgment of the court in the interpretation of statutes.”
The philanthropic feature of this prosecution is but the rose in the mailed hand.