113 P. 16 | Or. | 1910
delivered the opinion of the court.
“In furnishing cars no discrimination shall be made in favor of any person or place, or any commodity except livestock and perishable property.
“When the owner, manager, or shipper of freight of any kind shall make written application to the railroad to supply cars to be loaded in carload lots with freight-of which said railroad is a common carrier, it shall be the duty of such railroad to supply cars so applied for within the time herein prescribed. If the application be for five cars or less, the number of cars applied for shall be furnished to the applicant within five days; if the
“Any such application must be made to the railroad upon whose line of railroad the shipment originates. Every such application shall state the number of cars wanted, the time when and place where desired, the kind of freight to be shipped and the final destination thereof. The place where said cars are desired to be loaded for shipment shall be at some station, switch or siding on the line of the railroad to which application is made. The application for cars may be made to any officer or general agent of the railroad required to furnish the same, or to an agent of the railroad at the point nearest the station, switch or siding where said cars are to be furnished. * *
“When a car or cars are applied for under the provisions of this act, and are not furnished within the time as herein required, the railroad so failing to furnish such car or cars shall be liable and held to be immediately indebted to the person making application therefor in the sum of two dollars per day or fraction of a day per car applied for and not furnished within the limit of time and as herein prescribed, until such car or cars are furnished. And to be indebted to the person making such application and not receiving the car or cars therein applied for, within the time and as herein required, in the amount of the actual damages any such applicant may sustain, except as in this section of this act stated. * *
“No charge for failure of any railroad to furnish a car or cars as herein required shall be made or enforced, or damages therefor claimed, when such failure is caused by public calamity, strikes, washouts, acts of God, the public enemy, mobs, riots, wrecks, fires, or accidents; but
The railroad commission, upon good cause shown and after notice to interested parties and a hearing, is vested with power to suspend for a continuous period not to exceed thirty days the operation of the provisions of this section, in so far as it makes railroads liable for penalties or damages, and such order of suspension may take effect retroactively.
The first and principal contention advanced by defendant’s counsel is that the apples, when assembled for shipment at Milton, and tendered by the shippers to defendant for shipment, became articles of interstate commerce, and as such were subject to the provisions of the federal interstate commerce law, and the amendments thereof; that the cars ordered for such freight were instrumentalities with which to accomplish interstate transportation, and as such could be affected by no regulation tending to direct their use or operation, except such regulation emanated from Congress; that if the statute of this State is construed to apply to such transactions, it is an unlawful attempt to regulate interstate commerce; is in contravention of the federal Constitution, and, to that extent, is void.
Without deciding, but conceding for the purpose of this case, that the contemplated transactions heretofore detailed constitute interstate commerce, that alone will not render void the provisions of the act above quoted,
“It should never be held that Congress intends to super-cede, 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.”
Defendant relies upon the case of Gulf, Colorado & S. F. R. Co. v. Ellis, 165 U. S. 150, 158 (17 Sup. Ct. 255: 41 L. Ed. 666). The single question in that case was the constitutionality of a statute of Texas, allowing any attorney’s fee not exceeding $10 to a claimant, who demanded of a railroad company damages not exceeding $50, for stock killed or injured by trains, when the
Now, in that case it was pointed out that there was no special duty resting upon the railroad company to fence its tracks. The legislature of that state had not deemed it necessary, for the protection of life or property, to
In the more recent case of Atchison, Topeka & S. F. R. v. Matthews, 174 U. S. 96 (19 Sup. Ct. 609: 43 L. Ed. 909), involving the validity of a similar provision in a statute of Kansas, the court, in an opinion by the same justice, sustained the statute, distinguishing that case from the Ellis case upon the point above considered. The holding of the court in the Matthews case has since been cited and followed by that court in a number of cases: Fidelity Mutual Life Ass’n v. Mettler, 185 U. S. 308 (22 Sup. Ct. 662: 46 L. Ed. 922); Farmers’ M. Ins. Co. v. Dobney, 189 U. S. 301 (23 Sup. Ct. 565: 47 L. Ed. 821).
Other errors assigned for a reversal of the judgment have been considered, but we find no substantial error therein.
The judgment is affirmed. Affirm:ed.