voyage within Louisiana or without, as seemed to him best for the interest of all concerned. The statute under which this suit is brought, as construed by the State court, seeks to take away from him that power so long as he is within Louisiana, and while recognizing to the fullest extent the principle which sustains a statute unless its unconstitutionality is clearly established, we think this statute to the extent that it requires those engaged in the transportation of passengers among the several States to carry colored persons in Louisiana in the same cabin with whites is unconstitutional and void. If the public good requires such legislation it must come from Congress and not from the States."

Justice Waite here expressed his fear as to the delicate ground on which he was treading in saying: "The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not infrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved." Thus the way was left clear to vary the principle of interpretation according to the color of the citizens whose rights might be involved.

In view of the subsequent decisions in separate car cases, moreover, the following portion of Justice Waite's opinion as to a clause in the law involved in the case of Hall v. DeCuir is unusually interesting. "It does not act," said he, "upon the business through the local instruments to be employed after coming within the State, from without or goes out from within. While it purports only to control the carrier when engaged within the State it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. We confine our decision to the statute in its effect upon foreign and interstate commerce, expressing no opinion as to its validity in any other respect."[28]

With the rapid expansion of commerce in the United States and the consequent necessity for regulation both by the State and the United States, no power of Congress was more frequently questioned than that to regulate commerce and no litigant concerned in such constitutional questions easily escaped the consequences of the varying interpretation given this clause by the United States Supreme Court. The court, of course, accepted as a general principle that there are three spheres for the regulation of commerce, namely: that which a State cannot invade, that which the State may invade, when Congress has not interfered, and that which is reserved to the State in conformity with its police power. But as late as 1886 the nationalistic school found some encouragement in the decision of the Wabash, St. Louis and Pacific Railway Company v. Illinois[29] given by Justice Miller. He said: "Notwithstanding what is there said, that is, in the decisions of Munn v. Illinois; C. B. and Q. R. R. Company v. Iowa, and Peik v. Chicago and N. W. R. R. Co.,[30] this court held and asserted that it had never consciously held otherwise, that a statute of a State intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages, from one State to another, is not within the class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to the part of such transmission which may be within the State." Chief Justice Waite, and Justice Bradley and Justice Gray, however, dissented for various reasons.

In the Louisville Railway Company v. Mississippi,[31] however, in 1899, the court, evidently yielding to southern public opinion, reversed itself by the decision that an interstate carrier could not run a train through Mississippi without attaching thereto a separate car for Negroes and had the audacity to argue that this is not an interference with interstate commerce.[32] To show how inconsistent this interpretation was one should bear in mind that in Hall v. DeCuir the court had held that this was exactly what a State could not do in that the statute acted not upon business through local instruments to be employed after coming into the State, but directly upon business as it comes into the State from without or goes out from within, although it purported only to control the carrier when engaged within the State. It necessarily influenced the conduct of the carrier to some extent in the management of his business throughout his entire voyage. "No carrier of passengers," said the court in Hall v. DeCuir, "can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other to be kept separate. Uniformity in the regulation by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammelled by State lines, has been invested with exclusive legislative power of determining what such regulation should be."

Giving the opinion in the Mississippi case, however, Justice Brewer said: "It has been often held by this court that there is a commerce wholly within the State which is not subject to the constitutional provision and the distinctions between commerce among the States and the other class of commerce between citizens of a single State and conducted within its limits exclusively is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other."[33] He might have added some other comment to the effect that this court will not definitely draw the line of distinction between such classes of commerce since it desires to leave adequate room for evasion, because it had been unusually easy to find such a line in cases in which the rights of Negroes were concerned and such definite interpretation might interfere with the rights of white men. Justices Harlan and Bradley dissented on the grounds that the law imposed a burden upon an interstate carrier in that he would be fined if he did not attach an additional car for race discrimination, and that the opinion was repugnant to the principles set forth in that of Hall v. DeCuir.

The United States Supreme Court