The term "transportation includes the use of any and all facilities defined above and any and all instrumentalities and facilities of shipment or carriage. Mr. FARRIER. I say, Mr. Hamlin, that the way to make that correct is to insert the words "by carriers" so it will read "includes the use by carriers of any and all facilities defined above." It is too indefinite and vague as it exists now. It is all-comprehensive. Any use would make it transportation, whether it is transportation use or not. I would simply insert those two words.

Mr. HAMLIN. You would insert "by carriers" and make it "use by carriers"?

Mr. FARRIER. I would say "use by carriers" to clarify that definition. As it is now it is vague and comprehensive.

Mr. LEHLBACH. There are wharves all around New York City which are used for handling commerce a part of the year and used in the summer as recreation piers. Would such use be transportation? Would that be transportation?

Mr. FARRIER. It would be under the definition here, Mr. Lehlbach. Mr. LEHLBACH. Do you mean on page 6, or 7?

Mr. FARRIER. On page 8 of the committee print.

Mr. MANSFIELD. Line 16?

Mr. FARRIER. Line 16 it would be. If the words "by carriers” are inserted after "use" in that line, that clarifies the whole definition of transportation, to my mind.

Mr. WELCH. Can an individual bring a court action against the State of Pennsylvania?

Mr. FARRIER. Only by consent of the general assembly, expressed in an act of the general assembly.

Mr. WELCH. That is the same procedure as in California, where there must be permission by act of the legislature.

Mr. FARRIER. I might add that the inclusion of State courts as well as the district courts of the United States in the enforcement provisions of this act would not help any, because the citizen would not be permitted to sue in the State court.

Mr. WELCH. Has there been any complaint on the part of the shipping interests with reference to the management of the port of Philadelphia?

Mr. FARRIER. I have never heard any and I have been dealing with the port since 1920.

Mr. WELCH. Have you ever heard of complaints against any publicly owned port in the United States?

Mr. FARRIER. I have never heard a complaint in my life.

Mr. WELCH. Neither have I.

Mr. FARRIER. Against a publicly owned wharf or dock facility or its practices that are carried on or its prices or rates.

Mr. WELCH. Then why the words "body politic" in this bill? Mr. FARRIER. The words "or body politic" bring the States and municipalities in. If that term did not bring them in, there would be no use of it.

Mr. WELCH. And the necessity does not exist?

Mr. FARRIER. And the necessity does not exist; and Mr. Eastman has so admitted, in his draft here.

Mr. RAMSPECK. I understood you to say that a wharf or a dock was never a part of interstate commerce. You do not mean that, do you?

Mr. FARRIER. I meant to say that it was never active, affirmative agency of interstate commerce, but merely an instrumentality of interstate commerce, and the courts have drawn a very sharp line of distinction between the regulation of an agency of commerce, which involves human intervention in the use of it, and the instrumentality of commerce itself.

Mr. RAMSPECK. Well now, the Interstate Commerce Commission has authority to regulate charges made at railroad terminals, has it not?

Mr. FARRIER. It has by virtue of the fact that those charges are a part of a joint rate on through freight.

Mr. RAMSPECK. Would not they have, or should not they have, under this act, the same authority as to wharves or docks where they are operating on an interstate shipment?

Mr. FARRIER. Yes; providing, those charges were rates. But they are not. The Supreme Court of the United States has said that they are rent. They are a revenue derived by the owner of private property for its use by somebody who may be engaged in interstate commerce. The service rendered by the common carrier who rents the dock for the transportation of the goods is subject to regulation and Mr. Eastman told you that those charges are regulated under part I of this proposed legislation. Then why regulate the rent, the very small rent, that the owners of the piers get, in the form of wharfage or dockage, on those piers?

Mr. RAMSPECK. Why should we not? They are as much charges as the railroad charges? The rents are part of the cost of transportation.

Mr. FARRIER. Because the railroads do not charge them as rent. The railroads charge for a trasportation service. The rents are paid for the use of a property, not for a transportation service. Mr. RAMSPECK. I do not care what you call them. They are a part of the cost of transporting the shipment through the ports and, therefore, should be subject to regulation.

Mr. FARRIER. Might I suggest that the taxes paid by the transportation company are a part of the cost of conducting the business of transportation. But no one ever suggested that the Interstate Commerce Commission should ever regulate the taxes imposed by a Commonwealth.

Mr. RAMSPECK. I do not think that is in point on this.

Mr. FARRIER. Such charges have never been taken into consideration in fixing common-carrier rates.

Mr. RAMSPECK. Of course, the necessary amount that a railroad should earn must include those tax charges. It is true that the fixing of the rates does not have anything to do with that, but the cost of the terminal facilities does have something to do with the cost of moving traffic through this port and should be subject to this regulation.

Mr. FARRIER. That is where I have to part company with you. The Interstate Commerce Commission has said, and you gentlemen of the Congress have said, on a number of occasions, that the cost of the service is not the controlling factor in the fixing of the rate; and in the emergency act that you passed 2 or 3 years ago you proceeded to give 8 or 9 factors which were to be considered, but not controlling, in the determination of those rates.

Mr. RAMSPECK. Suppose the Baldwin Locomotive Works ships a locomotive from its plant in Pennsylvania to Great Britain. Part of the cost of that shipment is the charge made at the wharf, is it not? Mr. FARRIER. Undoubtedly.

Mr. RAMSPECK. And that part of interstate commerce, or foreign commerce?

Mr. FARRIER. If it is a charge for service, yes; if it is a charge for use, no; for a charge for use is determined by entirely different factors from the factors which determine a charge for service. The charge for use depends upon the capital value of the thing used; and that is absolute. There is the absolute right of a citizen to get a fair return on any property that he may own; and it is an absolute violation of his rights under the due process clause to say that he has to accept anything other than a return based upon real estate property rights.

Mr. RAMSPECK. My point is that, as far as the shipper is concerned, he pays, as part of his transportation cost, the charges made by the port or wharf. That has no relationship to whatever the carriers, or whoever has charge of that wharf, may pay the owner of it in rent. But the thing we are dealing with, as I understand it, is the transportation question. Those charges, it seems to me, if we are going to regulate, are bound to be a part of transportation.

Mr. FARRIER. They are. We are in perfect agreement, Mr. Congressman. Charges for services at any wharf or dock, I mean handling, stevedoring, cranage, and any other services which enter into the moving of the goods from the freight car or the truck into the hold of the vessel, are properly the subject of rates.

Again I say that the Interstate Commerce Commission and this Congress have refused time and again to fix rates on the basis of the cost of the service, and the cost of the service relates to things that are not rates for service. They relate to things that are fixed and immutable; and rents, for instance, are fixed and immutable. They are fixed and they remain in force, and they have no relation to the service. The rent would be and remain the same whether you moved one bale of cotton over a pier in a year or moved 10,000 bales.

Mr. RAMSPECK. Do you understand that this bill attempts to regulate rents?

Mr. FARRIER. That is what I am very much afriad of and that is why I am down here. When you attempt to fix the charges for the use of any and all facilities, you are regulating rents, because the Supreme Court of the United States has said that those are rents, and not rates or charges.

The CHAIRMAN. Are there any other questions? Thank you very much.

Mr. FARRIER. I thank you very much.

(The following memorandum was submitted by Mr. Farrier.)

MEMORANDUM-IN RE POWER OF CONGRESS TO LEGISLATE WITH RESPECT TO WHARFINGERS AS CONTAINED IN H. R. 5379

The fallacy of attempting to regulate or interfere with the ownership or operation of wharf and dock facilities belonging to "bodies politic", as it appears in section 303 (a) of H. R. 5379 is made apparent by a reading of the eleventh

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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 U. 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. Š. 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