§ 411. “Railways the Property of any State.”

In the United States it has been consistently held that railways are public highways, and subject as such to control by Congress under the trade and commerce power. (Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641; Smyth v. Ames, 169

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U.S. 466.) In the United States, however, as in England, the railways are constructed and owned by companies or individuals. In Australia they are, with few exceptions, constructed and owned by the States; and a doubt arose in the Convention, whether the commerce clause by itself would be construed to extend the authority of the Commonwealth to the Government railways of the States. This express provision removes all doubts on that head.

That “railways the property of any State” are the only railways here mentioned is due to the fact that those are the only railways as to which there could be any doubt, and as to which it was therefore necessary to make an express declaration. That the authority of the Commonwealth extends to private railways—so far as they are engaged in inter-state or foreign commerce—is taken for granted.

Under the federal power to acquire and construct railways, it is probable that railways owned by the Commonwealth will come into existence. That such railways will be subject to control by the Federal Parliament is obvious; but the Commonwealth in working such railways will itself be subject to the stringent provisions of sec. 99, forbidding the Commonwealth to give preference to any State over any other State. (See Notes to that section.)

The extent of the federal power over State railways is limited by other provisions of the Constitution. Thus the power given to the Commonwealth by sec. 51—xxxiii., xxxiv., to acquire the railways of any State with the consent of the State, and to construct railways in a State with the consent of the State, would seem by implication to exclude the exercise of any such power without the consent of the State. Apart from these provisions, it is by no means clear that such a power would not have existed. Thus in the United States it is contended by writers of repute—and the contention rests upon principles settled by judicial authority—that Congress under the wide scope of the commerce clause has power both to acquire and to construct railways, and to create a great national corporation with a monopoly of the railroad business. (See Lewis, National Consolidation of the Railways of the U.S., pp. 282–304.) That writer maintains that the cases of McCulloch v. Maryland, 4 Wheat. 316, and Osborn v. U.S. Bank, 9 Wheat. 738, establish the principle that “Congress has authority to create a great national corporation to carry out any powers given by the Constitution to the Federal Government.”

A further limitation of the federal power over State railways is contained in secs. 101 and 103, by which the powers of the Parliament as to preferences and discriminations are defined. (See Notes to those sections.)

Commonwealth not to give preference.

99. The Commonwealth shall not412, by any law or regulation of trade, commerce, or revenue413, give preference414 to one State or any part thereof415 over another State or any part thereof.

UNITED STATES.—No preference shall be given, by any regulation of commerce, or revenue, to the ports of one State over those of another.—Const. Art. 1, sec. 9, sub-sec. 5.

HISTORICAL NOTE.—The Clause in the Bill of 1891 provided that “Preference shall not be given by any law or regulation of commerce, or revenue, to the ports of one part of the Commonwealth over those of another part of the Commonwealth.” A second paragraph (also from the United States Constitution) that vessels bound to or from one port of the Commonwealth need not enter, clear, or pay duty in another port, was struck out in Committee. (Conv. Deb., Syd., 1891, pp. 833–5.)

Adelaide Session, 1897.— At Adelaide, the preference clause was adopted almost in the words of 1891, but having appended to it a provision (which had previously formed

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a separate clause; see Hist. Note to sec. 92) that federal or State laws derogating from freedom of inter-state trade should be void. There was little objection raised to the prohibition of preferences by the Commonwealth, the debate being almost wholly on preferences by States. (Conv. Deb., Adel., pp. 1070–85.)

Melbourne Session, 1898.—At Melbourne, Mr. Barton proposed the clause in a sweeping form, providing that all Federal or State laws giving a preference to one State over another should be void. The debate again turned almost wholly on preferences by States. (See Hist. Note to sec. 102.) Finally Mr. Barton (Debates, pp. 1319, 1337) proposed the clause in its present form, forbidding the Commonwealth to give preferences. After various amendments dealing with State preferences had been dealt with, the clause was carried. (Conv. Deb., Melb., pp. 1250–1370, 1409–1506; supra, p. 199.)