the defendants would not be liable unless that consequence was probable.26

The definitional consequences of a duty may, however, be defined absolutely, not by reference to any further consequences which they in their turn will or may produce, though this is not common when the definitional consequences are not identical with the violative ones. A good example is the duty of a ship to show certain lights at night. No doubt the reason for such a requirement is that the probability of collisions will be thereby lessened. But the duty itself is not defined by any reference, direct or indirect, to such a probability. It is not a duty to show such lights as will make a collision improbable, as reasonable safety calls for, but a peremptory duty to show certain prescribed lights. The mere presence or absence of the lights is the definitional consequence of the duty, a definitional consequence which is defined absolutely. If now a collision happens for want of lights, that is a violative consequence. In this class of cases the test of the proximateness of the violative consequence may conceivably be either probability or isolation. There seems to be no prevailing reason for adopting either one in preference to the other. The nature of the original duty, it is submitted, is not a proper guide to follow. Whether the duty was peremptory not to produce the definitional consequence or was a duty merely to use due care not to produce it, i. e., not to act so as probably to produce it, when it has been in fact produced the breach of duty is complete and finished. What happens afterwards, the violation of the right, is something quite distinct and separate. Nevertheless, it is possible that some courts, overlooking the distinction between the definitional and the violative consequences, have been guided by the analogy of the duty, and when the duty as to the definitional consequence was peremptory and did not depend upon probability, have considered that the violative consequence also need not be probable to be proximate, but when the duty was one of probability, so that the definitional consequence had to be probable, have thought that the violative consequence must also be so. When, although the definitional consequence was not defined by the probability of its causing the violation of the right, that probability was the reason for prescribing such a defi

26 Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925 (1894).

nitional consequence, for creating just that kind of a duty, that may perhaps be a ground for holding that the violation of right must be a probable consequence of the breach of the duty. On the other hand, when a person actually commits a breach of his duty, when he actually does something which the law, without reference to any further consequences of his conduct, forbade him to do, it may reasonably be considered that he acts at his peril, and there seems to be no good reason why, as a general rule, he should be excused from liability, if another is actually injured by his wrongful conduct, because he could not have foreseen that particular injury. Accordingly, in this class of cases, which, as I have said, are not common, some courts seem to have approved the test of probability and others that of isolation; sometimes both tests are mentioned, and sometimes probability is said to be the test when there was in fact a sufficient isolating cause.2 27

When a violation of right has happened, so that there is a complete tort which will support an action for at least nominal damages, there may ensue, as has been said, further injurious consequences which may be recovered for in an action for the tort as consequential damage. The violative consequences are never defined by any reference to actual or probable consequential damage, but always absolutely. Therefore the relation between the violation of right and consequential damage is like that between definitional consequences which are defined absolutely and violative consequences which follow them, and what has been said about the latter relation applies here. The consequential damage must be proximate to the violation of right, and through that it will be proximate to the act. If probability is taken as the test of its proximateness, the probabilities must not be compounded, but the probability of the consequential damage must be reckoned on the assumption that the violation of right actually happens. The nature of the duty broken, whether that was a peremptory duty or a duty of probability or intention, is not necessarily or properly any guide to the test of proximateness that ought to be used; and the remark above made that a person who has done wrong may justly be held liable for damage that is not probable, applies with even more aptness here.

27 Jackson v. Adams, 9 Mass. 484 (1813); Cate v. Cate, 50 N. H. 144 (1870); Daly v. Milwaukee E. Ry. & L. Co., 119 Wis. 398, 96 N. W. 832 (1903).

All that can be said here is that some courts take probability as the test of the proximateness of consequential damage, while other courts apply the isolation test. The difference of opinion here is real, and not merely apparent or verbal, and is irreconcilable. A choice simply has to be made between the two possible tests. However, the general rule that intended consequences are proximate applies to violative consequences and to consequential damage.

In the foregoing very general discussion, some cases of minor importance have been passed by without notice, and even in the cases that have been mentioned a considerable number of special rules whose application sometimes modifies or masks the general principles discussed, have also been omitted.

NEW YORK CITY.

Henry T. Terry.

THE EVOLUTION OF FEDERAL REGULATION OF INTRASTATE RATES: THE SHREVEPORT RATE CASES

"POWERFUL and ingenious minds, taking as postulates that the

powers expressly granted to the government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well-digested but refined and metaphysical reasoning founded on these premises, explain away the constitution of our country, and leave it a magnificent structure, indeed, to look at, but totally unfit for use." 1

"By virtue of the comprehensive terms of the grant the authority of Congress is at all times adequate to meet the varying exigencies that arise, and to protect the national interest by securing the freedom of interstate commercial intercourse from local control." 2

The first quotation is from Chief Justice Marshall's opinion in Gibbons v. Ogden, the great pioneer decision that defined the commerce clause of our Constitution. That opinion was rendered in 1824. That was ninety years ago. The second quotation is from Mr. Justice Hughes' opinion in the so-called Shreveport Rate Cases decided last June. In the one case, Chief Justice Marshall declared that the State of New York could not grant a monopoly in the use of its navigable waterways. In the other, Mr. Justice Hughes declared that the State of Texas could not maintain rates of transportation, however reasonable in themselves, between points within its boundaries, if these rates were discriminatory against rates ordered by the Interstate Commerce Commission to be maintained between points within and points without the State of Texas. The one decision purports to be warranted by the other. The language of the two quotations differs only in phraseology. The meaning intended to be conveyed is the same in both. They both affirm in absolutely definite terms the paramount authority

1 Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 222.

2 Houston East & West Texas Ry. Co. v. United States; Texas & Pac. Ry. Co. v. United States, 234 U. S. 342, 351.

of Congress over interstate commerce. Therefore to the lay mind, and indeed to those lawyers who have not undertaken a close study of the development of our constitutional law through judicial interpretation or judicial amendment (and for the purpose of our subject, of course, it is only with judicial interpretation and judicial amendment that we are concerned, because the commerce clause has thus far escaped all direct modification), it would seem that the construction placed upon this, the most vital clause of our whole Constitution, is no different from the construction placed upon it by the remarkable prescience of Chief Justice Marshall at the time when the Constitution was still in its infancy and railroads, and therefore railroad rates, were things unknown. But is it true that the construction is the same? This question is not capable of an absolutely conclusive answer for the obvious reason that Chief Justice Marshall could not foresee, and therefore his definition cannot be said to apply without qualification to, presentday conditions. This is said, of course, with full appreciation of the well-established principle that the reasons which may have caused the framers of the Constitution to repose the commercial power in Congress, and upon which our early justices necessarily largely relied, do not limit the extent of the power itself. Whether Chief Justice Marshall, were he living to-day, would reason as do the members of our present court is a matter of the purest conjecture; but even assuming that he would, the all-important fact remains that during this long period of ninety years agreement has by no means prevailed in the opinions expressed by the Supreme Court from time to time upon the scope of the commerce clause. An analysis of the opinions in the various cases shows widely dissimilar views. Here we will find an expansion of the commerce clause, there a contraction. Each view has a certain historical or economic significance. That there is this variance is by no means unusual. It is but the evolution of this branch of our constitutional law. The questions of police power, taxation, due process and equal protection of the laws, not to mention innumerable other questions, have each, in their turn, been subjected to a similar process of development. These evolutions have been largely con

3 See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228 (1899), in which this principle is very forcibly enunciated.