135 Ga. 35 | Ga. | 1910
1. The constitution of the United States (sec. 8, par. 3) declares that Congress shall have power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” In the English language few clauses can be found which have had a more far-reaching effect than that comprised in the seven words “to regulate commerce . among the several States.” If these words have a rival, it is to be found in those other four words in the fourteenth amendment of the same constitution — “due process of law.” On the first quoted clause has been built up a vast structure of legislation and litigation, the appearance of which may, with some degree of aptness, be compared to a gigantic, inverted pyramid, with its apex resting on the brief clause mentioned, and its body stretching away into legal space, — its limits or base being yet undefined. 'First was involved commerce in the sense of traffic between the States; then followed questions as to instrumentalities for carrying on commerce; then in regard to certain things being prepared or manufactured to be put into interstate commerce; then as to other matters and legal relations and liabilities. At each step the police power of the individual States has been contested, and litigants have claimed that it was in part annulled or curtailed either by the constitution or the acts of Congress. We are not'contesting the doctrine, which has been declared by the Supreme Court of tlie United States, that, under the Federal constitution, Congress has plenary power to enact laws on the subject of interstate commerce, and that State laws must yield to those of Congress within the realm of its power on that subject. But it must not be forgotten that the powers of the Federal government are delegated, while those of the individual States are inherent; that the police power of the States has been well compared to the right oí self-protection; and that a State without police power would be a State paralyzed. In determining, therefore, how far its inherent police power on a subject of great
No have dealt with' rule 9 of the railroad commission, as applicable to intrastate shipments, in Southern Railway Co. v. Melton, 133 Ga. 277 (65 S. E. 665). The first question in the present case inquires as to its application to cars intended for use in interstate shipments.
In Louisville & Nashville R. v. Kentucky, 161 U. S. 702 (16 Sup. Ct. 714, 40 L. ed. 849),, a provision of a State constitution prohibiting consolidation by common carriers was involved. It was held to be a legitimate exercise of the police power of the State. In dealing with the commerce clause of the constitution of the United States as affecting the subject in hand, Mr. Justice Brown, in behalf of the court, said: “It has never been supposed that the dominant power of Congress over interstate commerce took from the States the power of legislation until respect to the instruments of such commerce, -so far as the legislation was within its ordinary police powers.” In Lake Shore & Mich. South. Ry. v. Ohio, 173 U. S. 285 (19 Sup. Ct. 465, 43 L. ed. 702), the Supreme Court' had under consideration a statute of Ohio which required that each railroad company should cause three of its regular daily trains carrying passengers to stop at a station, city, or village containing over 3,000 inhabitants. Mr. Justice Harlan filed an elaborate and able opinion citing and discussing numerous authorities. He said
In regard to the subject of statutes or rules of railroad or corporation commissions of States, requiring the furnishing of cars, and providing for a penalty or amount which may be recovered for failure to so furnish them in accordance with the requirements made, and the application of such enactments or rules to cases where cars are desired for use in interstate shipments, the decisions are not many, but they vary widely in the views which they express. They may be grouped about the case of Houston and Texas Central
In St. Louis Southwestern Ry. Co. v. State, 85 Ark. 311 (107 S. W. 1180, 122 Am. St. R. 33), certain sections of the digest of that State and an order of the railroad commission were under consideration. By the statutes of that State carriers were required to “receive, load, unload, transport, store, and deliver to the consignee thereof all property tendered .for shipment,” and to furnish cars
We have quoted at some length from these two recent decisions of the Supreme Court of the United States, in order to show that in neither of them was it declared that a State legislature, or a railroad commission under its authority, could not make a rule requiring cars to be furnished within a reasonable time, although they were to be used for interstate shipments, unless such rule or act excluded legitimate defenses. To say that all of the discussion in the Mayes case, which has been set out above, meant merely to
As already indicated, the line of demarkation between the authority of Congress and that of State legislatures is not one which has been defined with mathematical exactness. It has rather been determined as a concrete question on which side of the line a particular ease fell. As the Supreme Court of the United States havé mentioned reasonableness 'as a guide in determining the extent to which a State law may affect interstate shipments without being invalid, and as reasonableness or unreasonableness is a matter for which no absolute standard can be prescribed, but a thing sometimes appears reasonable to one mind, yet unreasonable to another, and even the same person may change his view as to what is reasonable with age, experience, and reflection, the determination of questions like that now before us involves no small difficulty. We believe, however, that the effect of the .rulings above mentioned is that the States are not absolutely precluded from making rules of the character of that here involved, either as to ears to be used in intrastate shipments, or those to be used in interstate shipments; but that the exclusion of proper defenses as to cars to be used in interstate shipments would render the act or rule ineffectual as to
After the decision in the Mayes case, the Court of Civil Appeals of Texas held that the sections of the revised statutes of that State imposing a penalty on carriers for delay in furnishing cars for shipments were invalid under the Federal constitution, as an interference with interstate commerce. Texas & Pacific Ry. Co. v. Allen, 42 Tex. Civ. App. 331 (98 S. W. 450). That court treated the State statutes as applying to interstate shipments, and as excluding all defenses save those enumerated. In Kansas the statute on the subject was very similar to that of Texas, except that where the Texas statute provided that it should not apply “in cases of strikes, or other public calamity,” the Kansas statute permitted no excuse to be set up except “strikes, unavoidable accidents, and other pub-. lie calamities.” The Supreme Court of the latter State distinguished the two statutes on the ground that the Texas law provided the heavy penalty of $25 per car per day, while that imposed by the Kansas statute was $1 for each car per day, which was reasonable and the same amount as was allowed as demurrage to the railroad companies for a failure on the part of shippers to promptly unload cars; and also on the ground that the addition in the Kansas law, of the words “unavoidable accidents,” to the excuses allowed b}r the Texas statute made a material difference. It was said: “If, therefore, as said in the opinion in the Mayes ease, the Texas statute 'is not far from the line of proper police regulation/ we are justified in concluding that the car-service act of 1905 in question is well within that line.”
In Yirginia the corporation commission, in pursuance of an act of .the legislature, made a rule that when a shipper should make verbal or written application to a railroad company for a car or cars, the company should furnish the same within four days; and that for a failure to comply with this rule the company so offending should forfeit and pay to the shipper $1 per car per day. In Atlantic Coast Line R. Co. v. Commonwealth, 102 Va. 599 (46 Atl. 911), it was held that the State could make valid enactments, in the exercise of its police power, to promote the welfare and convenience of its citizens, though such laws, in their operation, might
In North Carolina an act was passed'requiring a railroad company to pay a penalty for a failure to ship goods promptly. In Branch v. Wilmington etc. R. Co., 77 N. C. 347, the act was held to be valid. It was said: “That the regulation in question is within the scope of the police power of the State seems clear to us. . The legislature considered the common-law liability as insufficient to compel the performance of the public duty. The penalty in the case provided for is superadded. The act merely enforces an admitted duty." Similar statutes have several times been before the Supreme Court of North Carolina; Section 2631 of the Revisal of 1905 of that State provides that transportation companies “whose duty it is to receive freight for shipment” shall, for refusing to receive all freight, “whenever tendered” to its agent, etc., forfeit and pay a penalty of $50 for each day it refuses to receive said- freight, together with actual damages sustained. The validity of this statute came before the court in Garri
While some of the reasoning of the Supreme Court of North Carolina, and the references made to certain statutes, may not be entirely applicable to the statutory law of this State, we think that the general conclusion arrived at is sound. We apprehend that some of the courts, in the effort to escape, from collision with the Scylla of the interstate commerce laws, are in danger of rushing into the Charybdis of violating the constitutional provision in regard to due process of law.
The act of this State of August 23, 1905 (Acts 1905, p. 120) does not in terms provide how the shipper is to obtain payment of the “forfeitures or penalties”' prescribed in the second section thereof. This being so, impliedly he must resort to the courts and bring suit therefor. Did the legislature intend that the 'amount fixed by the rule of the railroad commission adopted under authority of the act should be absolutely recoverable, and that in a
From the foregoing discussion it follows, that storage rulé No. 9 of the railroad commission of this State, adopted under authority of the act of 1905, applies to applications 'for cars intended to be used for the shipment of freight between points within the State, and 'also to applications for cars intended to be.used for the shipment of freight from a point in.this State to a destination in another State; that the act and rule, correctly construed, are not invalid as an unlawful interference with interstate commerce; hut that in a suit by a shipper, based thereon, the railroad company may plead and prove sufficient excusing cause for non-compliance.
2-3. It must be admitted that there is some doubt as to the exact meaning of the third section of the act of 1905. By the second section the legislature provided, that, in order to require cars to be furnished, there must be a written application, and that the railroad commission should, by reasonable rules, provide the time within which a ear or cars should be furnished “and the penalty per day per car” recoverable by the shipper for a failure on the part of the company to furnish them. In that section such amounts were also referred to as “forfeitures or penalties.” The third gsc
4. From what has been said above, it will appear that rule 9 of the railroad commission, properly construed in connection with-the act of 1905, is reasonable.
5. The fifth division of the'questions propounded includes several questions, some of which can not be readily answered categorically, because, taken separately, each does not cover the whole field in regard to the subject mentioned. It may be said generally, that, in a suit by a shipper or consignor to recover from a railroad company the amounts provided by rule 9 of the railroad commission, the defenses held to be proper by the Supreme Court of the United States in Houston & Texas Central R. Co. v. Mayes, 201 U. S. supra, and St. Louis Southwestern Ry. Co. v. State, supra, are open to the company as excuses for non-compliance with the rule; and evidence is admissible to sustain such defenses. The reason
It is the duty of a railroad company as a common carrier to provide cars sufficient to transport goods offered in the usual and ordinary course of business; but it is not bound to anticipate and prepare for an exceptional and extraordinary press of business. 4 Elliott on Railroads, § 1470 (supra); 5 Am. & Eng. Enc. Law. (2d ed.) 167, 168; Michigan Central R. Co. v. Burrows, 33 Mich, supra. Merely to show that a railroad did not have enough cars to comply with the demands made upon its services, at the time when cars were ordered from it, would not alone suffice. It may have been negligent in providing for the ordinary conduct of its business; and its own negligence would be no defense to it. But if it complied with its duty in this respect, evidence of a want of cars may be admissible, as tending to show that the company was not at fault. If it complied with its duty in regard to providing facilities for the transportation of goods, it would be relevant to prove that, at the time of the demand, the general movement of freight' throughout the country traversed by the defendant’s lines of railroads was unusually large and more than was normally to have been expected, and that therefore it could not comply with the demand for cars, without fault on its part.
Mere proof that there is a strike of hands on a railroad, without more, does not furnish a defense for failure to discharge its duty as a common carrier. Strikes may include only an insignificant number of employees, or those engaged in some department of the work-which in no substantial way interferes with the furnishing of cars; or, upon the happening of a strike; the company may, without sufficient effort or reason, cease or fail to conduct its business. The word “strike” does not necessarily describe the entire situation. But if a strike of operatives on a railroad is of such magnitude and character, and under such conditions, as to render the company unable, by the use of proper efforts, to furnish cars on demand, it will be a good defense to a suit under rule 9'of the railroad commission. There is some difference between what will excuse the failure of a common carrier to deliver goods, received by it for transportation, and what may excuse delay in furnishing cars. Evidence on the subject just mentioned is admissible.
The. company could not legitimately give preference to traffic paying the highest rate of freight. To hold that it could would be to say that discrimination might be made for extra compensation. Nor would the mere fact that certain classes of commodities were more valuable than others authorize a preference in shipment to be. made in favor of the former. Where there is a press of. business, perishable goods, or goods the inherent character of which is such as to render them peculiarly liable to serious injury from delay, and which must be transported promptly or else lost or greatly damaged, have been considered as of such exceptional character as to authorize a reasonable preference, as to expedition in hauling them, over freight not of such a character, in the absence of express statutory regulation on the subject. 5 Am. & Eng. Enc. Law (2d ed.) 253; Peet v. Chicago etc. Ry. Co., 20 Wis. 294 (91 Am. D. 446); Tierney v. New York Central &c. R. Co., 76 N. Y. 305. This does not, however, authorize preferences on account of mere slight differences in commodities; nor can the rule be- invoked as a cloak for making illegal, dscriminations in favor of one shipper or class of shippers as against another, without real ground for-its application. Ocean Steamship Co. v. Savannah Supply Co., 131 Ga. 831, 839 (63 S. E. 577, 20 L. R. A. (N. S.) 867, 127 Am. St. R. 265).
We think what has been said answers all of the questions propounded.