commerce among the States." And the doctrine was applied to sustain the Act of Congress of July 4, 1884 (23 Stat. 73, ch. 179) granting a right of way through the Indian Territory to the Southern Kansas Railway Company, the Official Reporter correctly summarizing the doctrine of the case in the syllabus of Luxton vs. North River Bridge Co. as follows: "In the execution of the power to regulate commerce Congress may employ, as instrumentalities, corporations created by it or by the States.

4. The Power of Congress to Construct or to Authorize the Construction of Highways of Interstate Commerce

The development of opinion in the Supreme Court, respecting the power of Congress to construct highways of interstate commerce seems to have followed the same course as it did in the country at large. It would appear that, in Marshall's time, the Court approved of the existence of the power; at least it is difficult to reconcile the sweeping terms of Marshall's judgments with the doctrine that Congress lacked this power. After his time a doubt seems to have arisen in the minds of the Justices whether Congress possessed the power; but after the Civil War, and the change which that produced in public opinion respecting the relation of the

central government to the States, the Supreme Court rendered a number of judgments, which determined that Congress has the power to construct the highways, and even without the consent of the States in which they lie.

Thus, in the case of California vs. Pacific Railroad Company, in 1888,' the Court said of the laws under which the Central Pacific Railroad and other roads were constructed:

It cannot at the present day be doubted that Congress, under the power to regulate commerce among the several States, as well as to provide for postal accommodations and military exigencies had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. This power in former times was exerted to a very limited extent, the Cumberland or National Road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water, and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed and led to the conclusion that Congress has 127 U. S., p. 1.

plenary power over the whole subject. Of course the authority of Congress over the Territories of the United States and its power to grant franchises exercisible therein, are and ever have been, uudoubted. But the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing States as well as Territories, and employing the agency of State as well as Federal corporations.

In the case of Cherokee Nation vs. Kansas Railway Company,' the Court affirmed the authority of Congress to vest railway and other companies with the power of eminent domain, adequate to the taking of lands within the States, for the purpose of constructing interstate highways, without the consent of the States.

The fact [said the Court] that the Cherokee Nation holds these lands in fee simple under patents from the United States, is of no consequence in the present discussion; for the United States may exercise the right of eminent domain even within the limits of the several States, for purposes necessary to the execution of the powers granted to the general government by the Constitution. Such an authority, as was said in Kohl vs. United States, 91 U.S., 367, is essential to the independent existence and perpetuity of the United States, and is not dependent upon the consent of the States. . . The lands in the Cherokee territory, like the lands held by private owners 1 135 U. S., 641.

J.

everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner.

The Congress of the United States [said the Court in Luxton vs. North River Company] being empowered by the Constitution to regulate commerce among the several States, and to pass all laws necessary or proper for carrying into execution any of the powers specifically conferred, may make use of any appropriate means for this end. . . . Congress, therefore, may create corporations as appropriate means of executing the powers of government, as, for instance, a bank for the purpose of carrying on the fiscal operations of the United States or a railroad corporation for the purpose of promoting commerce among the States. . . . And whenever it becomes necessary for the accomplishment of any object within the authority of Congress, to exercise the right of eminent domain and take private lands, making just compensation to the owners, Congress may do this, with or without a concurrent Act of the States in which the lands lie.

5. The Power of Congress to Lay Protective Duties on Imports

The power of Congress to lay duties upon imports, for the purpose of protecting domestic trades 1153 U. S., 529, 530.

and industries, has rather been implied by the Supreme Court than expressly decided. The power indeed has been treated by the Court as so well established that it did not require affirmation. Several of the decisions of the Court, however, have necessarily involved the doctrine that Congress possesses the power; as, for example, the decisions of the court in Cross vs. Harrison, 16 How. U. S., 164; Downes vs. Bidwell, 182 U. S., 244; Dooley vs. United States, 183 U. S., 151; De Lima vs. Bidwell, 182 U. S., I. How clearly the Court understands that Congress possesses the power to levy protective duties, appears in the following extract from its opinion in the case of Buttfield vs. Stranahan.'

The power to regulate commerce with foreign nations is expressly conferred upon Congress, and being an enumerated power is complete in itself, acknowledging no limitations other than those prescribed in the Constitution. . . . Whatever difference of opinion, if any, may have existed, or does exist concerning the limitations of the power resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation.