dissenting.
. I find myself unable to agree in the reasoning by which the judgment of the state court is affirmed. Upon the peculiar facts • of this case, it is possible to say that the cars, whose transfer was directed, did not become the subjects of interstate commerce until 'they had been selected as such after their delivery upon the tracks of the Santa Fe Railroad. ’ If the decision were put upon that ground, I should be silent. *625But it is assumed that three-fifths of them were interstate .shipments, and with respect to such shipments, I am constrained to believe that the judgment of the co.urt below exceeded the power of the State. The division of the governmental power over commerce made by the Constitution, by which the control of interstate commerce is vested in the Nation and the control of intrastate commerce is vested in the States, together with the fact that both kinds of commerce are often conducted by the same persons and .corporations through the same agencies gives rise to highly perplexing questions in practice. The regulation of carriers and other instru-mentalities of commerce is constantly undertaken both by the Nation and the States, and the extent' and limit of the respective powers vested in each government, as far as possible, ought to be accurately ascertained and declared. This is demanded imperatively by the orderly conduct of the vast transportation agencies which are engaged in both kinds of commerce. They ought not to be left uncertain as to the power to which they are responsible.
I venture to think that the weight of authority establishes the following principles: The commerce clause of the Constitution vests the power to regulate interstate commerce' exclusively in the Congress and leaves the po\Vér to regulate intrastate commerce exclusively in the States. Both powers being exclusive, neither can be directly exercised except by the government in which it is vested. Though the State may not directly control interstate commerce, it may often indirectly affect that commerce by the exercise of other governmental powers with which it is undoubtedly clothed. And this indirect effect may be allowed to operate until the Congress enacts legislation conflicting with it, to which it must yield as the paramount power. Gibbons v. Ogden, 9 Wheat. 1, 204; Atlantic Coast Line v. Wharton, 207 U. S. 328, 334; Asbell v. Kansas, 209 U. S. 251.
■ In the case at bar, upon the facts as they are assumed to exist, it seems to me that the judgment of the court below *626directly regulated interstate commerce. If this is so, it is unimportant that the Congress has been silent. A power clearly withdrawn from the State and vested in the Nation, can no longer be exercised by the States, even though the Congress is silent. Where the Congress fails to act, the subject enjoys freedom, from direct control.
The principles which I have stated have been recently ap-. plied by this court in the case of McNeill v. Southern Railway Company, 202 U. S. 543. I cannot escape from the conviction that that casé requires a reversal of the judgment of the court below, so .'far as it assumes to direct the conduct of interstate commerce. In' that case the place of business of a private corporation was reached by a spur track connecting with the main track of the railroad. It had been the custom of the railroad to deliver cars consigned to this corporation from the main t^ack to the spur track. In consequence of a dispute concerning demurrage, the railroad refused to continue thus to deliver cars. The State Commission made an order requiring the railroad to deliver certain cars engaged ■ in interstate commerce upon the spur track on payment of freight charges. The order was held to-be a regulation of such commerce, and repugnant to the commerce clause of the Constitution. In that case the regulation affected the last stages of the interstate journey. In this case it affects the first stages of the interstate journey. But in each case the commerce which was regulated was interstate. In that case the .order was issued by a Commission and in this case by a court. But nothing' turns upon that distinction, for by whatever state agency the power is exercised it is void, because it exceeds the authority which may rightfully be conferred by the State upon any agency.
I am not ready to assent to the proposition that although the Congress has vested in the Interstate Commerce Commission the authority to deal with the exact situation presented to us, that fact is immaterial, because the Commission has taken no action. If the Commission has the authority to deal with a question of this kind, those, who have grievances ought to *627resort to that body for relief. It is a very great hardship to subject the carriers to possibly conflicting regulations and leave them uncertain which government may rightfully assert its controlling authority. So it was said in the McNeill case that the order there “asserted a power concerning a subject directly covered by the act of Congress to regulate commerce, and the amendments to that act, which forbid and provide remedies to prevent unjust discriminations and the subjecting to undue disadvantages by carriers engaged in interstate commerce.” This statement was made as an additional reason for holding the state action invalid, and seems in conflict with the holding in this case.
I am authorized to state that Mb. Justice White joins in this opinion.