аfter making the foregoing statement, delivered the opinion of the court.
This case involves the constitutionality of certain articles of the. Revised-Statutes of Texas, set forth in the margin, 1 the *327 material requirement of which is that when the shipper of freight shall make a requisition in writing for a number of cars to be furnished at any point indicated within a certain number of days from the receipt of the application, and shall deposit one-fourth of the freight with the agent of the company, the company failing to furnish them shall forfeit $25 per day for each car failed to be furnished, the only proviso being that the law “shall not apply in cases of strikes of other public calamity.”
. The defense was that this statute was not applicable to demands made for cars to be sent out of the State and to be used iii interstate commerce; and as the shipment was intended for Oklahoma, the act did not apply, and the. defendant was not liable. The question is whether the statute, applied'as it is *328 by the Tеxas court to interstate shipments, is an infringement upon the power of Congress to regulate interstate commerce.
That, notwithstanding the exclusive nature of' this power, the States may, in the exercise of their police power, maké reаsonable rules with regard to the methods of carrying on interstate business; the precautions that shall be used to avoid danger, the facilities for the comfort of passengers and the safety of freight carried, and, to a certain extent, the stations at which stoppages shall be made, is settled by repeated decision's of this court. ■ Of course, such rules are inoperative if conflicting with regulations upon the same subject enacted by Congress, and can be supported only when consistent with the general requirement that interstate commerce shall be free and unobstructed, and not amounting to a regulation of such commerce. As the power to build and operate railways, and to acquire land .by condemnation, usually rests upon state authority, the legislatures may annex such conditions as they please with regard to mfrastate transportation, and.such other rules regarding ■mierstate commerce as aré not inconsistent with the general right of such Commerce to bе free and unobstructed.
The exact limit of lawful legislation upon this subject cannot in the nature of things be defined. It can only be illustrated from decided cases, by applying the principles therein enunciated, determining from these whether in the partiсular case the rule be reasonable or otherwise.
That States may not burden instruments of interstate commerce, whether railways or telegraphs,’ by taxation, by forbidding the introduction'into the State of articles of commerce generally rеcognized as lawful, of by prohibiting their sale after introduction, has been so frequently settled that a citation of authorities is unnecessary. Upon the other hand, the validity of local laws designed to protect passengers or employés, or persons crossing the railroad tracks, as well as other regulations intended for the public good, are generally recognized. An analysis of all the prior important cases upon this point will be found in the opinion of the court in
Cleveland &c. R. R. Co.
v.
*329
Illinois,
While there is much to be said in favor of laws compelling railroads to furnish adequate facilities for the transportation of both freight and passengers, and to regulate the general subject of speed, length and frequenсy of stops, for the heating, lighting and ventilation of passenger cars, the furnishing of food and water to cattle and other live stock, we think an absolute requirement that a railroad shall furnish a certain number of cars at a specified day, regardless of every other consideration except strikes and other public calamities, transcends the police power of the State and amounts to a burden upon interstate commerce. It makes no exception in cases оf a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention in other States, or in other places within the same State. It makes no allowance for interference of traffic occasioned by wrecks or other accidents upon the same or other roads, involving a detention of traffic, the breaking of bridges, accidental fires, washouts or other unavoidable consequences of heavy weather.
A dereliction of the road in this, particular, which may have occurred from circumstances wholly beyond the control of its officers, is made punishable not only by damages actually incurred by the shipper in the detention of his stock, but in addition thereto by аn arbitrary penalty of $25 per car for each day of detention. The penalty wfiích was assessed in this case, though the detention was only for one day, amounted to nearly as much as the damages, and might in another case amount to far more.
*330 While perhaps the road may have no right to complain of that portion of the statute which assumes to provide for its own protection, it is illustrative of its general spirit that, if the shipper does not fully load his cars within forty-eight hours after their arrival, he shall forfeit $25 for each car, or if the consignee shall fail to unload them within forty-eight hours after their delivery, at the place of consignment, which in the case of interstate shipments would be in another State, he shall also forfeit $25 pеr day for each car unloaded.
In this connection the recent case of
Central &c. R. R. Co.
v.
Murphey,
- Although the statute in question may have bеen dictated by a due regard for the public interest of the cattle raisers óf the State, and may have been intended merely to secure promptness on the part of the railroad companies, in providing facilities for speedy transportation, we think that in its practical operation it is likely to work a great injustice to the roads, and to impose heavy penalties for trivial, unintentional and accidental violations of its provisions, when no dámages could actually havе resulted to the shippers.
It should be borne in mind that the act does not apply to cattle alone, but to all cases “when the owner, manager or shipper of any freight of any kind shall make application in writing,” etc. The duty of the railroad company to furnish thе cars within the time limited is peremptory and admits of *331 no excuses, except such as arise from strikes and other public; calamities. If, for instance, the owner of a large quantity of cotton should make a requisition under the act7 for a number of cars, the railway company would be bound to furnish them upon the day named, or incur a penalty of $25 for each car, though the detention of the cotton involved no expense to the owner, or may even have resulted in a benefit to him through a rise in the market.
While railroad companies may be bound to furnish sufficient cars for their usual and ordinary traffic, cases will inevitably arise where by reason of an unexpected turn in the market, a great public gathering, or an unforeseen rush of travеl, a pressure upon the road for transportation facilities may arise, which good management and a desire to fulfill all its legal requirements cannot provide for, and against which the statute in question makes no allowance.
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 trаnscends the legitimate powers of the legislature.
The'judgment of the'Court of Civil Appeals is, therefore, re- . versed, and the cause remanded fo that court for further proceedings.
Notes
“Art. 4497. When the owner, manager or shipper of any freight of any kind shah make application in writing -to any superintendent, .agent or other person in charge of transportation, to any railway compаny, receiver or trustee operating a line of railway at the point the cars are desired upon which to ship any freight, it shall be the duty of such railway company, receiver, trustee or other person in charge thereof, to supply thе number of cars so required, at the point indicated in the application, within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such, cars to the persons so аpplying therefor, in the order in which such applications, are made, without giving preference to any person; provided, if the application be for ten cars or less, the same 'shall- be furnished in three days; and provided further, that if the aрplication be for fifty cars or more, the railway company may have ten full days in which to supply the cars. (As amended by the act of 1899, page 67.)
“Art. 4498. Said application shall state the number of cars desired, the *327 place at 'which they arе desired and the time they are desired; provided, that the place designated shall be at some station or switch on the railroad.
“Art. 4499. "When cars are applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of twenty-five dollars per day for each car failed to be furnished, to be recovered in any court of competent jurisdiction, and all actual damаges that such applicant may sustain.
“Art. 4500. Such applicant shall, at the time of applying for such car or cars, deposit with the agent of such company one-fourth of the amount of the freight charge for the use of such cars, unless the said road shall agree to deliver said cars without such deposit. And such applicant shall, within forty-eight hours after such car or cars have been delivered and placed as hereinbefore provided, fully load the same, and upon failure to •dо so, he shall forfeit and pay to the company the sum of twenty-five dollars for each ear not used; provided, that where applications are made' on several days, all of which are filled upon the same day, the applicant shall have forty-eight hours' to load the car or cars furnished on the first application, and the next forty-eight hours to load the car or cars furnished on the next application, and so on; and the penalty prescribed shall not accruе as to any car or lot of cars applied for on any one day until the period within which they may be loaded'has expired. _ And' if the said applicant shall not' use such cars so ordered by him, and shall so notify the said company or its agent, he shall forfeit and pay to said railroad company, in addition to the penalty herein prescribed, the actual damages that such company may sustain by the said failure of the applicant to use said cars.” (As amended by the act of-1899, page 67.)
Art. 4502 contains the following proviso: “that the provisions of this law shall not apply in cases of strikes or other public calamity.”