(concurring). I feel that in view of the far reach that this decision gives to the commerce clause of the Constitution, and the fact that our judgment is not unanimous, I should indicate the line of thought that has led me (overcoming as I went along a good deal of doubt) to the conclusion arrived at.
The declaration alleges that plaintiff in error is a common carrier engaged in interstate commerce; that on the date named, it hauled on its line of railroad a car regularly used in the movement of interstate commerce, but, at the time, empty; that the car was being hauled from a point in the state of Illinois “in an easterly direction” (whether destined to some point in the state of Illinois is not stated); and that the line of railroad over which it was being hauled is a part of a through highway, over which interstate traffic is being continually hauled, from one state in the United States to another state in the United States.
Assuming that every averment of the declaration is true, it appears (the pleading to be taken most strongly against the pleader) that the car involved in this suit may, on this date, and on this trip, have been hauled alone, or one of a train made up to start, run, and stop, wholly within the state of Illinois; actually starting, running, and stopping wholly within the state of Illinois; and carrying traffic wholly originating in the state of Illinois, and whose destination was at points wholly in the state of Illinois — neither the car, nor its contents, nor any part of the train of which the car was a part, nor any part of the train’s contents being either in purpose, operation, or traffic actually carried, a train in interstate commerce, except as it may be such by reason of the fact that it was moving over rails that were part of a line of railroad that is an interstate highway, and was operated by a carrier that, in addition to the operation of this train, was engaged in operating trains in interstate commerce. That a car or train thus starting, running, and stopping wholly within a single state, and not intended to run beyond the state, and carrying traffic originating wholly within the state, and destined to points wholly within the state, is not, for the time being, actually “engaged” in interstate commerce, is a proposition that does not need argument. That the traffic, thus carried from a point wholly within the state to another point wholly within the state, is not interstate commerce, is a proposition, also, that does not need argument.
*7But does it follow, that because, considered by itself, a given train or car is not for the time being actually “engaged” in interstate commerce, or that the contents are not interstate commerce, that the “railroad,” as an entirety, is not a highway of interstate commerce, or the operation of its trains, as an entirety, including the operation of such trains or cars, is not within the purview of the power given Congress ? We are now dealing with subject-matter of government. May not specific trains and cars, and their contents, considered by themselves, fall within a subject-matter of government essentially different from the operation of the railroad as an entirety, in which every locomotive, train, and car are so correlated that the operation of each is but a correlative part of the operation of the whole? And does not the existence of this distinction bring the operation of such car or train, irrespective of their status as mere vehicles of the commerce with which for the time being they are loaded, within the railroad's operations that, as an entirety, are operations in interstate commerce, and, therefore, within the power of Congress to regulate? These are the precise questions that this case presents.
The first, second, and fourth sections of the act of March 2, 1893 (I requote them), are as follows:
“Section 1. That from and after the first day oí January, eighteen hundred and ninety-eight, it shall he unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped, with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not’a sufficient number of cars in it so equipped with power or train brakes that the engineer on Hie locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.
“Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to he hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can he uncoupled without the necessity of men going between the ends of the cars.”
“Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the imds and sides of each car for greater security to men in coupling and uncoupling cars.”
In the first section of Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), it was provided:
“That the provisions and requirements of the act (that of March 2, 1893) shall apply in all cases, whether or not the couplers brought together are of The same kind, make, or type; and the provisions and requirements * * * relating to train brakes, automatic couplers, grab-irons, and the height of draw bars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce. * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith.”
I The act of March 2, 1893, standing by itself, need not be interpreted to include the purely intrastate car or train described. There is ¡nothing in the language of that act that necessarily includes such an Intrastate car or train. The words “any car used in moving interstate *8traffic” may very reasonably be interpreted to mean any car used, at the time complained of, in the moving of interstate traffic, or in connection with the movement of interstate traffic. So far as the act of March 2, 1893 goes, the constitutional power of Congress to regulate a purely intrastate train, carrying purely intrastate traffic, but moving on rails that are a part of an interstate line, and by a carrier that in addition operates interstate trains, is not necessarily raised.
But coming to the act of March 2, 1903, we find that the provisions of the preceding act relating to train brakes, automatic couplers, and the like, are declared “to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith” — language that leaves no reasonable alternative to holding, that no matter 'how entirely intrastate the movement of the car, or the train to which the car is attached, may be, and how entirely intrastate the traffic carried may be, the hauling of the car or train thus unequipped is within the act, provided the “railroad” on which the car or train is used is one engaged in interstate commerce. Is such regulation within the constitutional powers of Congress?
The General Government, within its constitutional field of power, is a government that is just as direct, plenary, and domestic as the several governments of the states; and the several governments of the states, outside the field of constitutional power bestowed on the Gov-, ernment of the United States, are just as plenary as the Government of the United States; so that, generally speaking, within its powers to regulate, every person and corporation, including common carriers, are answerable to the regulation of the Government of the United States, and exempt from being answerable to the regulation of the governments of the states; and within their power to regulate, every person and corporation, including common carriers, are answerable to the regulation of the state governments, and equally exempt from being answerable to the regulation of the General Government.
But such is not always the case; for although the division of power between the General Government and the states is the division of subject-matter of government, and the line to be drawn, in any case presenting an inquiry respecting power, is the line between such divisible subject-matter, there are subject-matters of government that at one and the same time directly affect, and are directly connected with, other subject-matter lying on both sides of the line. And it is just here' that the difficulty of running the line arises. Just such a case is the one before us.
Interstate commerce, in its broadest sense, is commercial intercourse between the states; the obverse of which would seem to be, that corftmercial intercourse that is wholly within the state is not interstate commerce. The railway locomotive, train, or car, or the car as a constituent of the train, that goes from state to state carrying wholly, or in part, any interstate commerce, are for the time being instrumentalities of interstate commerce; as also the locomotive, train, or car that, though not going out of the state, carries on its .way through the state traffic that is in interstate transit; and the *9obverse _oi that would seem to be tliat a train traveling wholly between points in the same state, and not going out of the state, and carrying wholly commerce originating in the state, destined to points in the same state, is not for the time being an instrument of interstate commerce. But may not the operation of such a purely intrastate train (an instrumentality solely of intrastate commerce when considered by itself) be so bound up with the operation of interstate trains or instrumentalities of interstate commerce — may not the connection between them be so direct and so inseparable — that in substance their operation is one and the same thing — but a part only of that which constitutes, in its entirety, the operation of the whole railroad, including all its trains, and necessarily, therefore, the subject-matter of one and the same source of regulation. Certainly on railroads over which interstate trains are operated there are some matters (such as what signal lights cars and trains shall carry; what kind of examination respecting eyesight employés dependent on these lights shall be subject to; whether air brakes shall be employed, and to what extent; the character of switches, the character of rails, the character and operation of interlocking devices, at railway crossings) that 1 hough local, constitute subject-matter so directly connected with the operation of all trains, irrespective of whether they are intrastate or interstate — are so connected with the operation of the railroad as an entirety — that they may be well held to constitute but a single subject-matter of governmental regulation. And in such cases, where the regulation cannot go to both state and General Government, it goes of course, whenever the General Government acts, to the General Government.
Now it seems to me that in the matter of safety appliances, in the very nature of the case, the operation of trains by a railroad engaged in interstate commerce, irrespective of whether the trains are intrastate or interstate trains (that is to say, the operation of the railroad as an entirety), leads to the same view, and for the same practical reasons. Primarily, these safety-appliance acts are to safeguard railway employés — the car not being the unit, but the train of which the car is a constituent — and in carrying out this primary object, the necessity of regulation extends to every car to be operated, not only those to be operated from state to state, but those to be operated wholly within a given state. Indeed, one of the chief dangers that regulation is intended to safeguard against is that incurred in the making up and the unmaking of trains in the switch yards — the putting together of the constituents into a unit, and their subsequent dissolution — -in the process of which all distinction between trains and cars that have been, or are to be, used in interstate commerce or intrastate commerce, is obliterated, thereby subjecting the employes of trains that have come from, or are going into interstate commerce, to all the dangers that lurk in all the cars used on the road, in both interstate and intrastate operation. Besides, trains that are purely intrastate, unregulated in the matter of automatic couplings, may be a menace to persons and property carried by interstate trains— differing in that respect only in degree from the menace of trains *10unequipped with air or other power brakes — a view that seems to bring the subject-matter of regulation respecting automatic couplings within the power of the General Government; for power “to regulate" being unqitestioned, the boundaries of that power are not determined by the degree of the need of regulation, but by the question whether there be a need that is a substantial one.
This view I think to be right, not only upon the practical considerations stated, but is the only view consistent with the cases already decided. True, the clearest cases relate to the power of Congress to make regulations, both for the safety of the public and of employés, upon the highways by water — regulations that apply not only to vessels navigating between different states, but to vessels navigating between points in the same state, provided the waterway is an interstate highway, including regulations analogous to the regulations here under review. The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. But as said by Mr. Justice Brewer, in Re Debs, 158 U. S. 590, 15 Sup. Ct. 908, 39 L. Ed. 1092, “the basis upon which rests its (the General Government’s) jurisdiction over artificial highways is the same as that which supports it over the natural highways. Both spring from the power to regulate commerce." And in the regulation both of artificial and of natural highways, the measure of the General Government’s power is the substantial need of interstate commerce; for we can not conceive that on one of the chief considerations that led to the formation of the General Government, the power to regulate was meant to be anything less than the full power that the need of the thing to be regulated might require.