McDonald v. State, 81 Ala. 279

81 Ala. 279 | Ala. | 1886

SOMERVILLE, J.

— The act of 1886-87, pp. 100-102, requires locomotive engineers in this State to be licensed, after examination as to competency and fitness, by a board authorized to be appointed by the Governor for that purpose. — Acts, 1886-87, pp. 100-102. It is insisted that the act is unconstitutional for several reasons.

The first objection is, that it is a regulation of commerce between the States, and for this reason, violative of the clause of the United States constitution which vests in Congress the power to regulate such commerce.

In our opinion it is a mere internal police regulation, which was competent to be provided for by the State, as a proper mode of preserving the safety of the traveling public, and other persons, whose lives may well be imperilled by the negligence of ignorant and incompetent engineers. It incidentally affects interstate commerce, but does not amount to a regulation, any more than laws licensing, by State authority, pilots of vessels engaged in such commerce, which have always been held free from constitutional objection. The laws of the several States have undertaken not only to license pilots in such cases, but have gone so far as to regulate the whole subject of pilotage and pilots, fixing their qualifications, employment, and pay, including the tender of services, and, on refusal to employ, authorizing the recovery of half pay. These laws have been sustained, not on the ground that Congress had recognized them as valid, for it is clear that no such recognition could confer any constitutional power on the States which they did not already possess, but upon the ground that they were necessary police regulations, having in view the public safety, or if regulations of commerce in a certain sense, they were local regulations, of such a nature as to be permissible until Congress itself undertook to exercise the same power by legislating on the subject.- — Cooley v. The Board of Wardens of Philadelphia, 12 How. (U. S.) 143; Ex parte Niel, 13 Wall. 236.

There are many police regulations of this nature, incidentally affecting commerce, which have been sustained by the courts. It is well settled that the States may pass laws requiring railroads running from one State to another to fence their tracks, to ring a bell, or blow a whistle on approaching a crossing or highway, to erect gates or bridges, and keep flagmen at dangerous places on highways, to stop for reasonable times at certain stations, to fix and post printed time tables, rates of fare and freights, and other things of like character, having reasonably in view the prevention of fraud and extortion, or other injury, and the preservation of the safety of the public. — Railroad Company v. Fuller, 17 Wall. 560; Mobile etc. R. R. Co. v. State, 51 Miss. 137 ; Com. v. Eastern R. R. Co., 103 Mass. 254; s. c., 4 Amer. Rep. 555; People v. Boston & Alb. R. R. Co., 70 N. Y., 569; Railroad Commissioners v. Porland etc. R. R. Co., 63 Me. 269; s. c., 18 Amer. Rep. 208; Davidson v. State, 4 Tex. Ct. App. 545; s. c., 50 Amer. Rep. 166; Tiedeman Lim. of Police Powers, § 194; Cooley’s Const. Lim. (5th ed.), *579 et seq.

The exaction of a license in such a case does not impose a direct burden upon inter-State commerce, or interfere directly with its freedom. It only “acts indirectly upon the business through the local instruments to be employed, after coming within the State.” It does not belong to that class of subjects which are national in their character and admit of but one system of regulation for the whole country, having in view the prevention of unjust discrimination and the preservation of the freedom of transit and transportation from one State to another.— Wabash etc. Ry. Co. v. Illinois, 118 U. S. 557, and cases there cited.

The case of Robbins v. Shelby County Taxing District, 120 IT. S. 489, does not conflict with the foregoing views. The license there exacted of foreign drummers was held to be a tax on inter-state commerce. It was not a police regulation. Even in that case the stronger reasoning, in our judgment, is with the able opinion of Chief Justice Waite, concurred in by Justices Fields and Gray. In Port of Mobile v. Leloup, 76 Ala. 401, we sustained as constitutional an ordinance of the Port of Mobile imposing a license tax upon a telegraph company doing business in that city, between this and other States, -which was inter-state commerce. In this we followed as authority the case of Osborne v. Mobile, 16 Wall. 497, in which the United States Supreme Court sustained a similar license on an express company-under like circumstances. The same question had been before decided in Southern Express Company v. Mayor etc. Mobile, 49 Ala. 404. In City of New Orleans v. Eclipse TowBoat Co., 33 La. Ann. 647, s. c., 39 Amer. Rep. 279, in like manner, a city ordinance exacting a license fee from the owner of tow-boats, running on the Mississippi Eiver to and from the Gulf of Mexico, was held not unconstitutional as a regulation of commerce, upon authority of the same decision. In The Amer. Union Tel. Co. v. The Western Union Tel. Co., 67 Ala. 26, we held that the provisions of our constitution prohibiting foreign corporations from doing business in this State without having at least one known place of business and an authorized agent therein, “was a legitimate exercise of the police power, and was not a regulation of commerce, as applied to a telegraph company doing business between this and other States.”

2. The other objections to the law, based on constitutional grounds, are, in our opinion, not maintainable. It does not confer judicial power on the board appointed by the Governor, nor does it deprive the citizen of his liberty or property without due process of law. The vesting, by legislative authority, of the power to license various occupations and professions, requiring skill in their exercise, or the observance of the law of hygiene, or the like, has never been construed to be obnoxious to these objections. It has been uniformly held that laws providing by accustomed modes for the licensing of physicians, lawyers, pilots, butchers, bakers, liquor dealers, and in fact all trades, professions and callings, interfere with no natural rights of the citizen secured by our constitution. — Mayor etc. Mobile v. Yuille, 3 Ala. 137; Dorsey’s Case, 7 Port. 295; Cooper v. Schultz, 32 How. Prac. Rep. 107, and authorities cited; Coe v. Schultz, 47 Barb. (N. Y.) 64; The Metropolitan Board of Health v. Heister, 37 N. Y. 661; Reynolds v. Schultz, 34 How. Pr. Eep. 147; People v. The Medical Society of New York, 3 Wend. 426 ; Metropolitan Board of Excise v. Barrie, 34 N.Y. 627; Barbier v. Connally, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Slaughter-House Cases, 16 Wall. 36.

The case of Yick Wo v. Hopkins, 118 U. S. 356, does not, in our opinion, lend any favor to the contention of appellant. The municipal ordinance, there pronounced invalid, vested in the board of supervisors the arbitrary power to license public laundries at their own mere will and pleasure, without regard to discretion in the legal sense of the term, and without regard to th & fitness or competency of the persons licensed, or the propriety of the locality selected for carrying on such business. Properly construed this case favors tbe views above expressed by us.

The rulings of the court accord with these views, and the judgment is affirmed.