It is to be noted, however, in connection with this classification of the cases, that there are many instances in which congress does act upon that intrastate commerce which is primarily within the control of the states, particularly in the case of rail roads. The operation of a purely intrastate train may be so bound up with the opera tion of interstate trains or instrumentalities of interstate commerce, that in substance their operation is one and the same thing, and necessarily the subject of one and the same source of regulation. Of such a char acter are, e. g. examination of eyesight of employes, character of switches, of rails, of interlocking devices, all of which, and the like, are so connected with the operation of the railroad as an entirety, that they con stitute but a single subject of governmental regulation, which, as it cannot go to both state and general government, goes, of course, when it acts, to the latter; Wabash R. Co. v. U. S., 168 Fed. 1, 93 C. C. A. 393, where the Safety Appliance Act of March 2, 1903, Is held constitutional and to apply to all carriers of interstate commerce, whether the cars and trains are operated between points in the same state, are empty, or the traffic carried is wholly intrastate. The movement of a car on a private switch used for transporting cars in interstate commerce is within the operation of that act; Gray v.
R. Co., 197 Fed. 874; and so also is one used between points in the same state by a car rier engaged in interstate commerce; U. S. v. Ry. Co., 164 Fed. 347.
The commercial clause includes authority to regulate navigation in aid of commerce and to make improvements in navigable waters, such as building a lighthouse in the bed of a stream or requiring navigators of a stream to follow a prescribed course, or directing the water of a navigable stream from one channel to another; South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782. See also U. S. v. Duluth, 1 Dill. 469, Fed: Cas. No. 15,001.
Congress may construct or authorize the construction of railroads across the states and territories; California v. R. Co., 127 U.
S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150 ; and highways, including canals, and outside of state lines; Wilson v. Shaw, 204 U. S. 24, 27 Sup. Ct. 233, 51 L. Ed. 351, where the pow er of congress to construct the Panama Ca nal was affirmed.
The powers conferred upon congress to regulate commerce among the several states, are not confined to the instrumentalities of commerce known or in use when the consti tution was adopted, but keep pace with the progress of the country, and adapt them selves to new developments of time and cir cumstances. Accordingly, the power of regu lation is applied to much subject-matter un known at the date of the adoption of the constitution. In addition to those things commonly understood to be included in the definitions of commerce, supra, it has been extended to sleeping and parlor cars ; Alien v. Pullman Co., 191 U. S. 171, 24 Sup. Ct. 39,
48 L. Ed. 134; refrigerator cars; Union Re frigerator Transit Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631, 44 L. Ed. 708; express companies ; Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586; telegraph and telephone ; Leloup v. Port of Mane, 127 U. S. 640, 8 Sup. Ct. 1383, 32 L. Ed. 311; Western Union Telegraph Co. v. Missouri, 190 U. S. 412, 23. Sup. Ct. 730, 47 L. Ed. 1116; business correspondence schools; In ternational Text Book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 24 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; a herd of sheep driven from one state across an other to a point in a third for shipment ; Kelley v. Rhoads, 188. U. S. 1, 23 Sup. Ct. 259, 47 L. Ed. 359; natural gas, after sever ance from the ground; Haskell v. Gas Co., 224 U. S. 217, 32 Sup. Ct. 442, 56 L. Ed. 738; State v. Gas & Mining Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579; the transmis sion of lottery tickets between states ; Lot tery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. As to goods, intrastate carriage in transitu to another state, is interstate commerce; The Daniel Ball, 10 Wall. (U. S.) 557, 19 L. Ed. 999; the ultimate destination prevails; Houston Direct Nay. Co. v. Ins. Co., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17; if the shipment par tially intrastate is bona fide it is not inter state, but otherwise if a mere subterfuge to benefit pro tanio by reduced state rates; Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540.
Interstate commerce by sea is of a nation al character and within the exclusive power of congress ; Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200; and so is trans portation from a point in one state to or through another or other states, and it is commerce among the states even as to the part of the journey within the state ; Wa bash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244. Where the railroad runs for a few miles out of a state and back the carriage is interstate com merce; Hanley v. Ry. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333 ; so of a vessel between two ports of the same state pass ing more than a marine league from shore; Pacific Coast S. S. Co. v. R. Com'rs, 18 Fed. 10. Prior to the decision of the Su preme Court, the state courts were divided; Sternberger v. R. Co., 29 S. C. 510, 7 S. E. 836, 2 L. R. A. 105, agreeing with It, and State v. Telegraph Co., 113 N. C. 213, 18 S. E. 389, 22 L. R. A. 570, contra; it was, how ever, held that when a passenger (whose ultimate destination is to a place in another state) purchases a ticket to a point within the state and then another to his destina tion, his first purchase was intrastate com merce to which state rates apply; Kansas City S. R. Co. v. Brooks, 84 Ark. 233, 105 S. W. 93.