118 P. 367 | Okla. | 1911
Lead Opinion
The question involved in this case is the constitutionality of section 2, art. 2, c. 10, of Sess. Laws 1905 (Comp. Laws 1909, p. 144, sec. 521). That section is as follows:
"It shall be the duty of every railroad company operating a line of road wholly or in part within this state for the transportation of freight, upon the verbal or written application of any shipper to its station agent or other agent in charge of transportation of freight for a car or cars to be loaded with freight other than perishable freight or live stock, stating the character of the freight and its final destination, to furnish said car or cars within four days from seven o'clock a. m. of the day following such application. Or, when such application specifies a future day when said car or cars are required, giving not less than four days' notice thereof computing from seven o'clock a. m. of the day following such application, it shall be the duty of said company to furnish said cars or car on the day specified in said application. For failure to comply with this section said company shall forfeit and pay to the shipper applying for said car or cars the sum of one dollar per car per day or fraction of a day's delay after free time, together with all actual damages said applicant may sustain thereby: Provided, that if in case of fire, washouts, strikes, lockouts, or other unavoidable casualties such railroad company shall not be able to furnish such cars within such time, then and in that event such time of demurrage shall not begin to run until such obstacles and hindrances are removed."
The argument is made that the section conflicts with the commerce clause of the Constitution of the United States, by which Congress is vested with power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Article 1, sec. 8. It is, of course, thoroughly established that this power of Congress to regulate interstate *323 commerce is exclusive, and as extensive as the commerce which is to be regulated. It is likewise thoroughly established that the state has full power to regulate intrastate commerce, and that neither the state nor the United States can enter upon or occupy the field exclusively committed to the other. It is likewise thoroughly settled that the states did not grant unto the United States their police power, and that, consequently, they retained it, and, having retained it, it is a function which they not only have the right to exercise, but which it is their duty to exercise. The inquiry, therefore, is whether this statute regulates interstate commerce, or whether it is a mere exercise of the state's police power; whether its design is to obstruct interstate commerce, or merely to facilitate the movement of freight, both inter and intrastate.
It seems clear to us that the purpose of the statute is the latter, and not the former. The prompt movement of the cars for interstate commerce cannot be a burden upon it, but an aid to it; and, if this statute affects interstate commerce, it is merely incidental and in aid of it. Western Union Tel. Co. v.Cravo,
"The requirement of the Virginia statute, as here applied, is a valid exercise of the power of the state, in the absence of legislation by Congress. It is neither a regulation nor a hindrance to interstate commerce, but is in aid of that commerce."
In Chicago, R.I. P. Ry. Co. v. Arkansas,
"It is not too much to say that the state was under an obligation to establish such regulations as were necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Beyond doubt, passengers or interstate carriers, while within Arkansas, are as fully entitled to the benefits of valid local laws enacted for the public safety as are citizens of the state. Local statutes directed to such an end have their source in the power of the state, never surrendered, of caring for the public safety of all within its jurisdiction; and the validity under the Constitution of the United States of such statutes is not to be questioned in a federal court, unless they are clearly inconsistent with some power granted to the general government, or with some right secured by that instrument, or unless they are purely arbitrary in their nature. The statute here involved is not in any proper sense a regulation of interstate commerce, nor does it deny the equal protection of the laws. Upon its face it must be taken as not directed against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce, and for the protection of those engaged in such commerce."
In Western Union Tel. Co. v. Commercial Milling Co.,
In Atlantic Coast Line R. Co. v. Mazursky,
"The duty to make prompt settlement for loss or damage to goods is but an incident of the duty to transport and deliver safely and with reasonable diligence. The statute in question was designed to effectuate an important public purpose, viz., to compel the common carrier to perform with reasonable diligence the duty which peculiarly appertains to his business as a carrier of freight. The penalty is but a means to that end."
And see same case,
In Western Union Tel. Co. v. James,
"While it is vitally important that commerce between the states should be unembarrassed by vexatious state regulations regarding it, yet on the other hand, there are many occasions where the police power of the state can be properly exercised to insure a faithful and prompt performance of duty within the limits of the state upon the part of those who are engaged in interstate commerce."
In Patterson v. Missouri Pacific R. Co.,
In Hardwick Farmers' Elevator Co. v. Chicago, R.I. P. Ry.Co.,
In Stone Co. v. Atlantic Coast Line Ry. Co.,
In Southern Ry. Co. v. Melton,
In Houston T. C. R. Co. v. Mayes,
"Although it may be admitted that the statute is not far from the line of proper police regulation, we think that sufficient allowance is not made for the practical difficulties in the administration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the Legislature."
Under the authority of the Mayes case, therefore, as well as all the other decisions on the subject, the subject-matter of this statute is rightfully within the power of the Legislature, and in order for the courts to strike it down we must be able to say that it is so arbitrary and unreasonable as to transcend the limits *327
of the state's power. We cannot reach this conclusion. Whether cars should be furnished within one day, or four, or six may be a matter upon which different men would have different opinions; but it is certainly a subject as fully within the knowledge of the Legislature as it is that of the courts, and we cannot say that a requirement that they should be furnished within four days is arbitrary and unreasonable. It certainly is not a burden on interstate commerce. But the Legislature has not made this an absolute requirement, but excuses the railroad in the event of the contingencies named in the statute. We are asked to so construe these contingencies and exceptions as to make the act unconstitutional. But where two constructions are available, one of which will uphold the act, while the other will strike it down, it is the duty of the courts to take the former course. Patterson v. Missouri Pacific R. Co.,
In the case at bar the defendant merely filed a general denial. It did not plead or undertake to prove any facts which would make the application of the statute unreasonable, but merely stood upon the naked proposition that the statute, on its face, is so unreasonable and arbitrary as to be void. The meaning of the words "unavoidable casualty" can better be ascertained by applying them to concrete cases, and, as there are no facts before us, we cannot apply the words in this case; but it is manifest that the exceptions of our statute are so much broader than the exceptions of the Texas statute involved in the Mayes case that that case is not controlling, and it is sufficient to say that, when a railroad company cannot furnish cars on account of any casualties beyond its control, the statute will not apply.
All the other assignments of error are disposed of by what we have already said, except the fifth, which attacks the rulings of the court on the admission of evidence. On the cross-examination of the plaintiff, the defendant inquired whether cars were scarce that fall, whether plaintiff had any trouble in getting cars, *328 and whether he got as many as other dealers. This was objected to as improper cross-examination, and the objection was sustained. We do not think this was error. If the defendant relied upon such a defense, it should have been pleaded and proven; and this could not be done by the examination of the plaintiff, when his examination in chief did not legitimately present the matter.
For the reasons herein stated, the judgment of the trial court should be affirmed.
By the Court: It is so ordered.
Addendum
In our former opinion we held that the demurrage act under consideration was not a violation of the commerce clause of the Constitution of the United States. A petition for rehearing was filed, for the first time calling our attention to section 1 of the act of June 29, 1906 (chapter 3591, 34 St. at L. 584 [U.S. Comp. St. Supp. 1911, p. 1285]), and the petition for rehearing was granted in order that the case might be considered with that act of Congress in mind. At the oral argument it was suggested that the exact proposition was pending before the Supreme Court of the United States, and we have delayed further opinion in the matter awaiting the decision of that tribunal, as it would, of course, be controlling upon us. The exact question, however, has not been decided by that court at this term. Section 1 of the Act of June 29, 1906, is as follows:
"The term 'common carrier,' as used in this act, shall exclude express companies and sleeping car companies. The term 'railroad,' as used in this act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight *329 depots, yards, and grounds used or necessary in the transportation or delivery of any kind of said property; and the term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carriersubject to the provisions of this act to provide and furnishsuch transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto." (Italics ours).
It will be observed that this section provides that "the term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage," and, further, that "it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor." The effect of the act of Congress, then, is to require the carrier to furnish cars for interstate commerce upon reasonable request, while the effect of the act of the Legislature is to require such cars to be furnished within five days, under the penalty of $1 per day per car for failure to do so.
Is there such a conflict between the two statutes that the state legislation must yield to the national legislation, or does the state legislation, in the exercise of the state's police power, merely incidentally touch the same subject as the national legislation in such a way as to aid, rather than hinder, its full operation? The act of Congress manifestly originates in the power to regulate commerce between the states. On the other hand, the act of the state originates in its police power. Houston T. C. R. Co. v. Mayes,
The act of Congress says that the cars shall be furnished upon reasonable request. This merely declares what was the law without the act. Such service was the common-law duty of the carrier. The act of the Legislature requires cars to be furnished within five days. In our previous opinion we have held that this requirement is not so unreasonable and arbitrary as to be stricken down as matter of law. It follows, therefore, that it is reasonable. The act of Congress, therefore, and the act of the state run parallel with each other, and the state enforces a penalty of $1 per day for failure to discharge the duty which is enjoined both by the state and by the nation. There being no necessary conflict, we therefore conclude that section 1 of the act of 1906 does not operate to destroy the demurrage act of Oklahoma which was previously in existence. The principles upon which we rest this conclusion find support in many cases decided by the Supreme Court of the United States, two of which were decided at the last term, one theSouthern Railway Co. v. Reid,
In the Reid case the validity of a North Carolina act was involved which required carriers to receive freight for transportation, and forward the same by a route selected by the shipper, under penalty of $50 per day for each day of refusal. It was held that this act was in conflict with the act regulating commerce, and was, therefore, invalidated by it. In that case, however, demand was made upon the carrier for a bill of lading reading from Charlotte, N.C., to Davis, W. Va., and an offer was made to prepay the freight charges. The carrier declined to name a rate or permit the shipper to prepay the freight, and declined to issue a bill of lading as requested, because no through rate or route had been filed or published as required by the interstate commerce act. In determining whether both acts could stand, Mr. Justice McKenna, in delivering the opinion of the court, says (
"The principle of that case, therefore, requires us to find specific action either by Congress in the interstate commerce act, or by the Commission, covering the matters which the statute of North Carolina attempts to regulate."
After then reviewing the general scope of the commerce act and of the North Carolina act, it is said (
"* * * The statute of North Carolina conflicts with these requirements. What they forbid the carrier to do the statute requires him to do, and punishes disobedience by successive daily penalties."
And again on the same page:
"If the carrier obey the state law, he incurs the penalties of the federal law; if he obey the federal law, he incurs the penalties of the state law. * * *"
Having found this direct conflict between the two laws, it necessarily followed that the state law would have to yield, and the court so held.
Savage v. Jones,
"The state cannot, under cover of exerting its police powers, undertake what amounts essentially to a regulation of interstate commerce, or impose a direct burden upon that commerce."
In support of this statement he cites the following cases:Hannibal St. J. R. Co. v. Husen,
"But when the local police regulation has real relation to the suitable protection of the people of the state, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with *333 legislation enacted by Congress pursuant to its constitutional authority."
Supporting this proposition, he cites the following cases:Plumley v. Massachusetts,
"* * * Can it be said that Congress, nevertheless, has denied to the state, with respect to the feeding stuffs coming from another state and sold in the original packages, the power the state otherwise would have to prevent imposition upon the public by making a reasonable and nondiscriminatory provision for the disclosure of ingredients, and for inspection and analysis? If there be such denial it is not to be found in any express declaration to that effect."
It might have been argued in that case, and doubtless was, that Congress, by expressing its will on the subject, had taken it out of the jurisdiction of the state, but the court evidently did not entertain that opinion. The court, however, at page 501 of 225 U.S., at page 726 of 32 Sup. Ct., 56 L.Ed. 1182, says: *334
"Is, then, a denial to the state of the exercise of its power for the purposes in question necessarily implied in the federal statute? For, when the question is whether a federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power."
And again, in the next paragraph, it is said:
"* * * In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state."
Many cases are cited supporting this doctrine. At page 501 of 225 U.S., at page 727 of 32 Sup. Ct., 56 L.Ed. 1182, Mr. Justice Hughes quotes with approval from Reid v. Colorado,
"It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said — and the principle has been often reaffirmed — that, "in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.' "
The principles involved in the cases of Southern Railway Co.v. Reid, supra, and Savage v. Jones, supra, are identical, and the two cases, approaching statutes from different points of view, disclose very clearly the principles which should apply.
Will the act of Congress "be frustrated and its provisions be refused their natural effect" by enforcing the act of Oklahoma? Can it be said that "the act of Congress, fairly interpreted, is in actual conflict with the law of the state"? Is there such a "repugnance or conflict" "that the two acts could not be reconciled or consistently stand together"? We think these questions must all be answered in the negative.
The statute of Oklahoma, passed in the exercise of its police power, does not conflict with the act of Congress, passed in the *335 exercise of its right to regulate interstate commerce. This Oklahoma statute, in so far as it affects commerce, facilitates intrastate commerce, and it seems to us that interstate commerce is entitled to the benefit of this statute as much as intrastate commerce. Many other decisions might be reviewed, but Southern Railway Co. v. Reid, supra, and Savage v. Jones,supra, cite these other decisions and lay down the principles necessary to a decision of this case.
We adhere to the original conclusion, and think the judgment of the trial court should be affirmed.
By the Court: It is so ordered.