amendment to the Constitution of the United States. This amendment reads as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state." This part of the Constitution is the basic clause protecting the right_of_the States to handle their own business and protect their own property from Federal interference. It is evident that the Congress cannot regulate the wharf and dock facilities belonging to a State because the only way any regulation passed by Congress could be enforced would be by suit in the Federal courts as appears in many sections of H. R. 5379, but the eleventh amendment forbids the district courts to entertain suits of any kind against a sovereign State and therefore the provisions of H. R. 5379 could not be enforced as against a State. It would be useless to say that Congress can pass this act when the mandate of the Constitution protects the State from any interference under it with its property rights and the right to exercise its governmental functions within its own State boundary lines. In other words, Congress does not enforce its own regulations, neither does the Interstate Commerce Commission and the courts upon which the duty to enforce the law devolves, are forbidden to exercise any authority in connection with the States or State property. (See Mayor of Nashville v. Cooper, 6 Wallace 247, 252.) It has been held that the Constitution is as binding on the Congress as on the people and acts of Congress which are not consistent with its provisions are invalid. (Mayor of Nashville v. Cooper, 6 Wallace's Reports 247, 252; Gunn v. Barry, 15 Wallace's Reports 610, 623; Sinking fund cases, 99 Ú. S. 700, 718; Scranton v. Wheeler, 179 U. S. 141, 162; Calder v. Bull, 3 Dallas's Reports 386, 399; Marbury v. Madison, 1 Cranch 137, 176; Worcester v. Georgia, 6 Peters Reports 515, 570, 571.) It has been said that in the peculiar dual form of government in the United States, each State has the right to order its own affairs and govern its own people except so far as the Federal Constitution expressly or by fair implication has withdrawn that power. (Hurtado v. California, 110 U. S. 516; Twining v. New Jersey, 211 U. S. 78; South Carolina v. U. Š., 437, 448.) When the American people created a national legislature with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument: Sturgis v. Crowninshield. (4 Wheaton's Reports 122, 193.) It is therefore generally recognized that there is a wide range of particular unexpressed powers which have been reserved to the States such as for illustration, the right to determine the qualifications for State offices and the conditions on which its citizens may exercise their various callings. (Cummings v. Missouri, 4 Wallace's Reports 277, 319.) Among the matters which are implied in the Federal Constitution although not expressed therein, is the fact that the national government may not in the exercise of its powers prevent a State from discharging its ordinary functions of government. This corresponds to the prohibition that no State can interfere with the free and unembarrassed exercise by the Federal Government of all powers conferred upon it. (South Carolina v. United States, 199 U. S. 437, 452; Carlesi v. People of N. Y., 233 U. S. 51, 57.) In other words, the two governments National and State are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other.-(South Carolina v. United States, 199 U. S. 437, 452.) Thus a State or the Federal Government cannot tax each other's agencies engaged in governmental work. Bank of Commerce v. New York, 2 Black's Reports 620, 623; Union Pacific R. R. Co. v. Peniston, 18 Wallace's Reports 5, 30.) No power exists in the Congress to regulate wharfingers as defined in H. R. 5379 on any basis of police power. The police power under the American Constitutional system as been left to the States (Slaughter House cases, 83 U. S. 36, 62). It has always belonged to them and was not surrendered by them to the General Government, nor directly restrained by the Constitution of the United States (Jacobsen v. Massachusetts, 197 U. S. 11, 24, 25; House v. Mayes, 219 U. S. 270, 281, 282). Each State has, therefore, the power to regulate the relative rights and duties of all persons, individuals, and corporations within its jurisdiction for the public convenience and the public good (Knight v. Miller, 172 Ind. 27). It follows that Congress has no general power to enact police regulations operative within the territorial limits of a State and it cannot take this power from the States or attempt any supervision over the regulations of the States established under this power (Woods v. Carl, 75 Ark. 228; Territory v. O'Connor, 5 Dak. 397; Western Union Telegraph Co. v. Pendleton, 95 Ind. 12; State v. Kofenis, 33 R. I. 211). The power and control of the several States over land and the use of land lying between the high and the low water mark along navigable waters of the United States has always been considered as the exclusive prerogative of the State. By the common law the title in the soil of the sea or of the arms of the sea below high water mark, except so far as private rights in it have been acquired by express grant or by prescription or usage, is in the king (or sovereign) subject to the public rights of navigation and fishery and no one can erect a buliding or wharf upon it without license. Upon the American Revolution the title to the dominion of the tide waters and of the lands under them vested in the several States of the Union within their respective borders subject to the right surrendered by the Constitution to the United States. The title and rights of riparian or littoral proprietors in the soil below high water mark are governed by the laws of the several States subject to the rights granted to the United States by the Constitution. All of the foregoing is substantiated by the comprehensive opinion of Mr. Justice Gray in the case of Shively v. Bowlby, 152 U. §. 1. The case just cited contains a complete analysis and consideration of the reserved power of the States with respect to the ownership and use of the riparian lands contained within their borders and holds that it is the settled rule of law that absolute property in a dominion and sovereignty over the soils under the tide waters in the original States were reserved to the several States; and that the new States, since admitted, have the same rights, sovereignty and jurisdiction in that behalf as the original States possess within their respective borders. Again in the case of Hardin v. Jordan, 140 U. S. 371 at page 381, Mr. Justice Bradley said "the title to the shore and lands under tide water is regarded as incidental to the sovereignty of the State-a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery.' It is apparent from the foregoing that the right and the duty of the sovereign States is to use or permit the use of riparian lands situate within the State for the purpose of making interchange of traffic and permitting the docking of boats engaged in commerce. This has always been regarded by the courts as one of the exercises of the police power and a strictly governmental function of the State with respect to wharves or docks belonging to citizens and especially so with respect to the operation by the State through the agency of its political subdivisions of facilities for the furtherance of commerce passing through the gateways; no one has ever suggested that this function is other than a proper exercise of the police power of a sovereign State and as such a strictly governmental function. The extent to which the power to regulate the use of riparian lands situate on or under navigable waters of the United States may exist in the Congress has from immemorial practice been regarded as limited to the regulation of such locations with respect to navigation. (Illinois Central R. R. Co. v. Ill., 146 U. S. 387, 435; Gibson v. U. S., 166 U. S. 269, 272.) The use of wharves, piers, and docks may be regulated by Congress under its power over commerce but like matters pertaining to the control of navigation and navigable waters, the construction and use of such conveniences are of local concern and, in the absence of Federal regulations governing the subject, are the subject of State regulation, either directly by the State or through its municipalities. (Parkersburg & O. R. Transportation Co. v. Parkersburg, 107 U. S. 691, 700); that is, the ordinary and reasonable charges for the use of wharves, may be charged under local regulations, as such charges are neither a burden upon commerce nor "imposts on duties or exports" (N.W. Union Packet Co. v. St. Louis, 100 U. S. 423, 429; Vicksburg v. Tobin, 100 U. S. 431, 433). The exaction of reasonable compensation for the facilities afforded to vessels by the use of wharves is not a duty of tonnage within the meaning of constitutional provision though the amount of such compensation is regulated by and proportioned to .the number of tons of the vessels using the wharf (Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80, 87; Vicksburg v. Tobin, 100 U. S. 431, 433; Cincinnati Co. v. Catlettsburg, 105 U. S. 559, 562; Ouachita Packet Co. v. Aiken, 121 U. S. 444, 448). It will thus be seen that the commerce clause can only be extended to authorize the Congress to regulate navigation and to regulate the use of riparian facilities so that they do not interfere with the navigable character of such waters insofar as the State or its agency is exercising a governmental function under the police power to create and permit the use of wharves and dock facilities. The Congress does not possess the power to substitute its police regulations therefor. It follows that if the wharfinger sections of H. R. 5379 are to be sustained as a valid exercise of legislative power, they must rest upon the power of Congress to regulate commerce which, of course, means interstate or foreign_commerce. Nothing, however, appears in the activities of the average municipal or private wharfinger which in any way constitutes an actual engaging in the movements of persons or property in interstate commerce. The wharfingers are not parties to through-route or joint-rate agreements, neither are they in general practice engaged as wharfingers in handling, loading, or unloading of the subject matter of interstate commerce, and their business is entirely conducted within the lines of the several States in which they may be situated; therefore any engagement in commerce is of local and intrastate character if it exists at all. The regulation of any other activity of a wharfinger would constitute a regulation of the proprietary right to own real estate and rights therein and permit the use of the same for hire; it can easily be seen that the regulation in H. R. 5379 is of a business in no way comprehending interstate commerce within the meaning of the Constitution. I call attention in this connection to the case of Henderson Bridge Co. v. Kentucky (166 U. S. 150, 153), in which it was expressly held not to be an act of interstate commerce to build and rent a bridge for the purpose of interstate commerce. While the running of an agency for the furtherance of commerce is an operation of commerce (McCall v. Cal., 136 U. S. 104, 114) every private enterprise which may be carried on chiefly or in part by means of interstate shipments is not necessarily to be regarded as so related to interstate commerce as to come within the regulating power of Congress (Addystone Pipe, etc. Co. v. U. S., 175 U. S. 211, 247). It is not necessarily commerce among the States to carry on a business which may involve transactions of (Hopkins v. U. S., 171 U. S. 578, 591), or in aid of interstate commerce (Budd v. Ñ. Y., 143 U. S. 517, 537) or which may become incidentally related to interstate commerce (Hooper v. Cal., 155 U. S. 648, 653), or which consists in the supplying of commodities or instrumentalities of commerce. More specifically, commerce does not comprehend: The building of ships (Nathan v. La., 8 Howard (U. S. 73, 80, 81)). The sale of an obligation to take title to property in another State (State v. Aggy, 179 N. C. 831). The manufacture and erection of elevators in a building (Portland Co. v. Hall, 106 N. Y. supp. 649). The business of baseball for profit: (American League Baseball Club v. Chase, 149 N. Y. Supp. 6). The investment of money (Standard Home Co. v. Davis, 217 Fed. 904, 915). Managing theaters and producing plays (People v. Klaw, 106 N. Y. supp. 341). Collecting articles to be laundered; sending or transporting them into another State and after the work thereon has been completed returning them to owners in the first States (Smith v. Jackson, 103 Tenn. 673). The business conducted by brokers and commission merchants or exchanges of which they may be members (Brodnax v. Mo., 219 U. S. 285, 294, Ware v. Mobile County, 209 U. S. 405, 409). Furnishing performers or troupes of actors to various theaters situated in the different States (Interstate Amusement Co. v. Albert, 128 Tenn. 417). Manufacturing or processing property which may subsequently become the subject of interstate commerce is not engaging in interstate commerce (U. S. v. Knight, 156 U. S. 1, 12 Kidd v. Pearson, 128 U. S. 1, 17, Veazie v. Moore, 14 How. Rep. 568, 573). and see recent decisions in Delaware and New Jersey in relation to the N. R. A. codes holding manufacturing and processing not to bring the employment of labor therein within the legislative power of Congress to regulate. Packing houses engaged in slaughtering cattle, sheep, and hogs intended for interstate and foreign commerce (U. S. v. Boyer, 85 Fed. 425, 433). Business of insurance, (Thames etc. Ins. Co. v. U. S., 237 U. S. 19, 25, York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495, 506). In view of the foregoing it would appear that the Congress has no power to regulate the business of wharfingers under the police power which is exclusively the perogative of the sovereign State unless it relates to creating constructions therein which might interfere with navigation. Secondly, the Congress has no power to regulate what would otherwise be engaging in intrastate commerce unless there is an active affirmative participation by the wharfinger in the division of joint rates and the transportation over through routes under a through bill of lading in which the wharfinger assumed the obligations of a common carrier. Such is not the status of the wharf and dock users and owners which H. R. 5379 attempts to regulate. The only conclusion therefore that the writer can draw is that the wharfinger provisions of H. R. 5379 can only be applicable to wharf facilities and operations when, as and if they may be indulged in by the carriers at their several piers, docks, and wharves and that any regulation of State or municipally owned wharf facilities is an interference by Congress with a governmental function of a State government and any regulation of a private pier owners operations, is an attempt to regulate a business or use which does not constitute interstate commerce. In this connection it is submitted that dockage, wharfage, and storage are in their nature rent charges (Transportation Co. v. Parkersburg, 107 U. S. 691, 699), and are compensation for the use of land and improvements. It has never been considered under the interstate commerce act that the Commission could regulate or interfere with rentals payable under leases and it is submitted that the rental contracts relating to the instrumentalities of interstate commerce are not such interstate commerce as the Congress may properly regulate under the commerce clause. The writer further respectfully submits to the Senate Committee that it has been the policy of the Congress of the United States for 146 years not to trespass upon the local regulations of the local business of docking vessels and rendering wharfage service in the several States and that any interference at this time with such matters would complicate the transportation situation beyond any power in existing governmental agencies to correct. In fact, it must be evident from the various objections which have been made to H. R. 5379 that as a practical matter it would be impossible to establish uniform regulations applicable to all classes of wharfingers in the divers geographical locations in which wharf facilities exist. Respectfully submitted. G. COE FARRIER, The CHAIRMAN. Mr. Bayless, the committee will hear you now. STATEMENT OF HERMAN A. BAYLESS, COUNSEL MISSISSIPPI RIVER SYSTEM CARRIERS' ASSOCIATION Mr. BAYLESS. Mr. Chairman, my name is Herman A. Bayless. I will endeavor to be brief. The CHAIRMAN. Mr. Bayless is counsel for the Mississippi River System Carriers' Association and the Ohio Valley Improvement Association. Mr. BAYLESS. Yes, sir; and I also represent the American Barge Line Co. I will stick to the text of a brief summary of our position, with an occasional comment. The Mississippi River System Carriers' Association was recently organized to promote cooperation among the river carriers. Its membership is made up of owners and operators of boats and barges on the Mississippi River system, including its tributaries, the Ohio, Missouri, Monongahela, etc., including private, contract, and common carriers, carrying approximately 80 percent of the total tonnage on the system. The American Barge Line Co. is a certificated common carrier but carries principally contract tonnage, operating on the Ohio and Mississippi Rivers and their tributaries between Pittsburgh and New Orleans and New Orleans and St. Louis. I am referring to the American Barge Line Co. in particular because I happen to be counsel for that company and because I am going to refer to some individual experiences of that company in contact with the Commission, and so forth. It owns a fleet of 8 tow boats and about 100 barges. Its fleet is suitable for the transportation of bulk, liquid, and box-car freight and carried in 1934, 337,000 tons. The members of our association, with but one exception, the Mississippi Valley Barge Line Co., are opposed to this legislation. We object to the agency which has been chosen to administer the bill, the Interstate Commerce Commission, based upon the experience of our members with the Commission, upon the ground that it is too slow to act, too expensive, and its regulation is biased in favor of the railroads. We also object to the terms of the bill (H. R. 5379) which, instead of undertaking helpful regulation, seems also to disclose a thinly disguised intent to restrict inland water transportation. The best indication of the unsympathetic attitude of the Coordinator toward water transportation and his bias in favor of the railroads is manifest in his recent amendment of policy, section 302 (a) of the committee print, seeking to abolish the long-established policy of Congress as expressed in existing acts, referring to water transportation, by striking out of this section the words "promote", "encourage", "develop", "maintain", and "foster" water transportation, in sharp contrast also with the statement of policy in the proposed ship subsidy bill. The revision by Mr. Eastman of this policy section becomes even more significant when it is considered that sections 306 and 307 covering rates, section 310 covering certificates of common carriers and permits of contract carriers, section 312 covering dual operations, and section 314, the commodities clause, are provided to be administered consistently with the policy declared in section 302 (a). In order to present to your committee quickly and briefly our attitude toward the bill as a whole, I present the following summary of our objections. It is not in the public interest to plunge inland river carriers into a complete, fully developed system of regulation and restriction without giving them the same opportunity which was afforded the railroads to gradually adjust themselves to such regulation, especially since the plan is untried, unproven, and, instead of aiding and encouraging the development of this cheaper form of transportation, will restrict and probably destroy it. The attempt to classify carriers as common, contract, and private and to place them in separate compartments is economically unsound. One who operates in one class should be permitted, without being subjected to the sole discretion of the Commission, to make his services and facilities available to the public in the other classifications, provided he assumes the obligations incident to operation in such other classifications. This arbitrary limitation of activities is unfair, both to the carriers and to the public. As a matter of fact, the carriers on the inland waterways system almost universally engage |