*1 TERM, OCTOBER' Syllabus. S.U. undoubtedly the for better courts practice to caution juries much against too .reliance the testimony of upon accomplices, and to require corroborating before testimony credence giving to them. But no such charge was asked to be presented the jury by any case, in request and the proper refusal to the one for was grant asked not error. questions
Other are raised in the case as to the admissi- bility of testimony; certain wfehave examined them and find nothing prejudicial rights the petitioner.
The of the Circuit judgment Court is, therefore, of' Appeals affirmed.
Affirmed. SOUTHERN COMPANY v. JOSEPHINE KING. RAILWAY
SAME INEZ KING. CERTIORARI TO CIRCUIT OF THE COURT APPEALS- FOR THE CIRCUIT.
FIFTH Argued 6, April 7, 1910, May 16,1910. Nos. Decided right The is exclusively vested in Congress, pass and the States directly cannot regulating law commerce; may, police but States in the.exercise power, pass laws the interest of safety which do not inter- directly operations fere with the of interstate commerce. constitutionality of a state regulating operation of rail- depends upon road trains commerce; effect on interstate and, absence of congressional regulation subject, may on the regulations make reasonable as to the manner in which trains shall give approach, to, crossings, notice of their approach dangerous they are long upon so not direct burden interstate commerce. down must show- One who would strike a statute as unconstitutional con- injuriously actually deprives- .that it affects him of a him right. stitutional allegations allegations proper conform the
Proof must without testimony cannot be admitted. conclusions; facts and and the want pleading
A must state not mere CO; v. KING. Error. Plaintiffs Argument tí.U. '217 demurrer. subject pleading renders allegations definite essential Georgia. practice rule, (cid:127) is also general This *2 commerce the of violation is in statute that.a statements General interstate on burden direct Constitution, is a the Federal of clause for facilities pleader’s of the usefulness the commerce, impairs and the facts of not statements and conclusions are mere purpose, unconstitutional, do and statute operation the make which' a violation on based action cause to a any defense raise not statute. 332, affirmed. Rep. Fed. 160 of a statute constitutionality the involve facts, which The railroad by highways crossing the regulating Georgia in opinion. the
.traihs, stated and P. Thom A.Mr-. whom Strickland, with J. John .Mr. brief, plaintiffs on were McWhorter Mr. Hamilton error: is void Post Blow alleging amendment The form in proper upon burden
because a raised and properly Georgia the laws1 conformed and 110 Hardin; v. Ry. F W. <fc .8. question. constitutional Brown, v. 60; Sayor 114 State, Georgia, v. 433; Brown Georgia, 542. Georgia, 119 upon or passed not made question a constitutional When it, will consider of review court, lower
in the the proposi- reverse The there. argued afterward though 241; Merritt, Georgia, v. 113 Butler true. is likewise tion Henderson, 120 v. 1000; State Georgia, Burke, 113 v. Lafttte 1048; Co., 120 Georgia, Ry. Sou. v: 781; Newkirk .Georgia, 303. Georgia, Co., 127 Potts-Thompsón Liquor v. Parham court, by properly rejected and evidence, .offered is required All that question. constitutional raised below, raised shall be question is that Georgia laws in the indirectly and appear directly on passed evidence, or other parts pleadings, either record Parham, v. Potts-Thompson supra. cited Cases the record. Hardin, Co. Ry. F. & v. 303; S. W.. Co., Georgia, 127 Liquor TERM, OCTOBER <0 LA Argument for Plaintiffs in Error. 217 U. S. 433; State, Georgia, Newman v. Georgia, 534; v. Lufitte n . Burke, 113 Georgia, Under the law of Georgia all ob- to evidence jections not made'are waived. Jackson v. State,- y. 784; Steed Georgia, Cruise, 168; 70 Georgia, v. Christian 430; State, Georgia, Bhinehart v. Élackshear, 105 Georgia, 799; State, Summers V. 116 Georgia, 535.
Commerce
consists,
among
States
other
among
things,
in intercourse
traffic,
in these
including
terms the trans-
portation
transit
persons
property
the instru-
mentalities thereof.
Kimball,
Mobile
v.
County
691;
102 U. S.
v.
McCall
California,
104;
Williams
Fears, 179
270;
U. S.
Champion Ames,
There reserved power to, any way, interstate commerce. Where the apparent exercise *3 has been power upheld by courts, the power either the mere declaration of a common law duty as applied instrumentalities of interstate commerce or the exercise of some reserved other power pertaining .Cooke’s Const, Commerce lllj Clause Fed. 124; Western Union Tel. Co. v. Call Co., Pub. 181 92; S.U. 3 Elliott on Railroads, 1156.
If authority to regulate an interstate railroad train at a public crossing embraced the police power State, authority that must be so exercised as not to burden or im- the interstate traffic of pede company, impair the use- of its fulness facilities for the traffic. The police of a power is not unlimited State and is subject to judicial review, and in an when exercised arbitrary or oppressive manner, such violative, may be annulled as laws of the rights protected by Illinois Cent. the Constitution. R. B. V.Illinois, 163 154;' U. S. M. R. v. Ohio, L. & S. R. State S. 173 285; U. 'S. see 335; Cleveland 309 & pp. Chicago R. R., R. v. St. Louis R. 514; 177 R. S. Miss. R. v: Commission III. Cent., 203 U. S. U.. 335; Atlantic Line v. 1; Coast N. C. Commission, S. 206 U. Co. Morgan Steamship Health,.118 vLouisiana'Bd. U. S. Massachusetts, v. 25;. 197 U. 455Jacobson S. Steele, v. Lawler 527 CO. v. KING. ' Argument Plaintiffs in Error. U. S. 217 259; S. York, v. 92 New U. 133; U. S. 152 Henderson Hardy, 164 v. 45; Holden York, 198 U. S. Lochner v. New U. S. Co., 184 Pipe Sewer Connolly v. Union 366; S.U. v. Daven- 1, 210; v. 9 Wheat. Sinnot 540; Ogden, Gibbons 613; S. Harber, 169 Co. U. Ry. Mo. v. 227; 22 How. port, v. Ar- McLean -223; iU. S. 195 Angeles, Los v. Dobbins kansas, U. S. trans- such interstate can deal with alone,
Congress,
it shall
declaration that
is a
and its non-action
portation
legislation.
imposed by state
free from burdens
remain
Federal control subjected of commerce to burden- jects operations Eagan, p. 61; Walling Prentice & legislation. some state District, Robinson v. 446; v. 110 U. S. Michigan, Taxing Asher McCall 489; Texas, 129; S.U. *4 Titusville, 153 104; City U. S. Brennan California, 139 U. S. 289. and void
The under review is unconstitutional duty railroads. is no common-law to interstate There crossing, stop its trains so as a carrier to check on thereon, there no thing should any person if such burden on an impose in State to power reserved carrier. interstate .through applied is unreasonable.
The act. Ohio, 173 U. R. R. Co. V.'State 301. M. S. S. L. S. & TERM, 528 OCTOBER Argument for in Defendant Error. act in effect is to regulate
The
an
carrier,
interstate
and* thus interstate commerce. Brown v. Houston, 114
622; Welling Missouri,. 91
U. S.
275; Transpor-
.Parkersburg,
tation Co. v.
To or established mode; by rule, direct or restriction; subject, gov- erning principles laws. Int. Diet. Webster’s The effect burden, of the statute is to impede, and to impair usefulness of the facilities of interstate carriers for such traffic. III. Cent. R. R. Co. v. Illinois, U. S. 163 154; Miss. R. Comm. v. R. III. Cent., TJ. S. 346.
The statute is not observed, and the engineers for its prosecuted violation, the statute so though requires. of Ga., 517, provides Penal Code he shall be punished § by as for a misdemeanor of the Civil Code. § passed The statute was before the days of interstate by was enacted the State for the railroads; railroads they operated. the State as were then Interstate carriers operate by virtue of an act of Congress passed since the day of the Georgia statute, and which .had thé effect to supersede the Blow Post statute of Georgia.. Stat., Rev. §
The evolution of the business world has ob- rendered solete the statute under review.
Mr. Reuben R. Arnold for in error: defendant - Plaintiff error has not questions made such a that this can them. way court consider a', (cid:127) is not bound a conclusion of The pleader is a the statute burden on here to the pleading analogous pleading rule in general A fraud charge pleading cases.of fraud. constitúting always nothing; particulars counts " Potts- be set forth. & Co. v. fraud must Parham Thomrpson Liquor Co., Georgia, 303; Newkirk V. Railway Co., Georgia, 1048. Southern *5 . 529 v. KING. CO. in Error. for Defendant Argument S. 217 U. issues raise pleadings, by proper may, defendant The All issues or both. equitable, or legal fact, law, of .fact All issues demurrer. be raised law shall a dil- may be answer, which by plea raised' shall merits. nature, or to
atory the de- required, are pleadings as written Inasmuch con-' alleged this on evidence basis no had fendant out. been stricken had plea its after objection, stitutional commerce interstate on effect or remote incidental U. Ailing, 93 S. v. Sherlock legislation. vitiate not does R, 133. S. 169 U. Solan, v. Chicago R. 99; to control seeking directly législation on Decisions in case Legislation here. point commerce, aby Legislation to interstate an aid is bar commerce, undertakes directly State, which affects incidentally which legislation, other void; while has been it, regulation a direct as much equally &c. in Atlantic construed orders acts The valid. held v. R. Comm. Miss. R. 334; Wharton, v. R. R. Illi- R. v. R. Cleveland 335; S. 203 IT. Co., R.R. Cent. III. Co., R. R. &c. v. Illinois 514; Illinois S.U. nois, interstate upon burdens unreasonable 141, involved S.U. distinguished. easily and are class, different entirely to an belongs bar case The v. Crutcher 465; S. Alabama, 124 v. U.. Smith Ohio, 173 R. v. R. Shore 47; Lake 141 U. Kentucky, 430; Ben- 427, S.U. Minnesota-, 166 286; Gladson S.U. Morasch, Erb v. see 300; and Georgia, nington city aby “a regulation holding that 177 U.'S. not, as limits city within railroad speed in- regulation of trains, an unconstitutional action takes Congress least until commerce, terstate —at matter.” every rail- 1852, and passed law Post Blow right and its franchise takes Georgia company road law, this provision subject operate vol. ccxvn—34 TERM, OCTOBER
Opinion of the Court. 217 U. S.' has been sustained and applied by Supreme of Court Georgia in many cases. A full history of this statute will be found in Railway v. Combs, 124 Georgia, Southerly 1004; Railroad Davis, 18 Georgia, .679; Railroad v. Wynn, 19 Georgia, 440, and Railroad v. Wynn, 26 Georgia, 250.-
It is entirely consistent with the terms of this statute, run can at full speed over crossings in the great majority of instances.
It is within the power of the State to require certain diligence measures on the part of those operating trains when passing over dangerous places grade like crossings. If this law works .hardship upon the railroads, can .they underground construct or overhead crossings.
To maintain grade crossings is dangerous and is so recognized everywhere; some States have abolished grade crossings altogether. See Railroad Braddock R. R., 152 Pa. 116; St. Westbrook’sAppeal, Connecticut, 95.'
If the 'State can grade- abolish crossings altogether can impose upon the railroads using dangerous places almost any conceivable condition before allowing their use.. The power to altogether. prohibit certainly includes the power to regulate. Day the opinion delivered
Mr. Justice court. These cases were together in tried the Circuit Court and were so considered in the Circuit Court of Appeals, and will be so disposed of here. In 140, No. Josephine King brought her in the suit Superior Court of'Haber- sham County, Georgia, $10,000 against recover Southern Railway Company wrongful for the death husband, killed while riding in at buggy crossing her of the railway. defendant’s The alleged negligence was the violation of a certain statute Georgia, State of company failed check and to keep checking v. KING. CO. Court.. Opinion crossing approaching while train speed killed. her husband No, King Inez brought by action was In case court, same in the King, Josephine friend, her next time the same place, received injuries because Both cases same statute. violation, of the alleged for the Court Circuit to the United were removed Georgia. District Northern Division Eastern against rendered were judgments trial verdicts Upon were affirmed judgments These company. the railroad Circuit., Fifth Appeals Court in the.Circuit *7 were then The-cases C. A. 284. 332; 87 C. Rep. 160 Fed. certiorari: writs of here brought validity the presented concerns question Federal of for violation Georgia of State of the
of statute the the of contention had, being it recovery was of the interstate violation in the statute petitioner it is Constitution, in that Federal of clause commerce interstate com- regulation and a upon illegal burden an in 2222 of Civil Code found This § merce. follows: reads as Georgia, at road, line said 'on the be fixed must “There of such of each from the yards center the distance post, thereof, each side and on crossings, road arrive he shall Whenever required, shall engineer locomo- the whistle to blow posts, of.the of said either to simul- road, and public if arrives at tive until ’ so thereof speed keep checking the an check taneously be, crossing person thing any time should stop as to said road.” track on said in this decided frequently been
It has of the by virtue is, commerce regulate right in the Congress exclusively vested Constitution, Federal pass cannot law The States United States. of the - Attempts to do so such directly regulating in many instances, unconstitutional been declared have n W w i-* O i-3 O >-3 o CO COCn CO .H (cid:127)O Opinion.’ofthe Court. -217 U.S. regulate power Congress and the exclusive such uniformly true, commerce Whilé this is maintained.. rights having pass law's effect to to. directly interfere of in ;the operations with terstate-commerce, in the of the passed police, exercise interest, power health State maintained-by of this court. safety, have been the decisions (cid:127) mayWe of the cases of this nature which instance some held, a regulation státutes have been not to be inter commerce, although they may affect the transaction' among the. States. In Smith Ala 465, police S. it was held to be within the bama, U. power require engineers of the State to to be locomqtivu and licensed. In H. & H. Y., examined N. N. Railroad York, 628, regulating Co. v. New 165 U. S. a law on heating passenger requiring guard posts ears Ohio, In Lake Shore R. R. Co. v. bridges was sustained. 286, it held to be enactment to re valid . quire railway companies operating within State of the. Ohio to cause three of its regular passenger stop way. daily every village each three containing over , thousand Erb Morasch, inhabitants. In City, was held that a ordinance municipal of Kansas n *8 which, Kansas, trains, although applicable to interstate re the limits to six- speed city stricted all trains within the of power miles an' the of hour, police was a valid exertion of In the 141 S. Kentucky, the State. of Crutcher v. U. case ' 47, this court said: the province “It within the of State is also undoubted regulations speed make to the regard with legislature to. toWns; in and trains the of cities neighborhood of railroad approach in the precautions with to the to be taken regard n sharp and bridges, tunnels, deep to cuts of such trains in with all curves; and, regard operations to generally, b¿ may of people endangered, which the lives arid health to some extent affect though regulations even such v. KING. CO. Court. of the Opinion U. S. are regulations Such commerce. interstate operations absence in and, character, their in local eminently free subject, the same over regulations Congressional unquestionably objections, constitutional all from valid.” illegal an be to held been has hand, the other On in require to commerce interstate regulate to attempt when county seats at stop' to trains passenger terstate for provided been already had service train adequate Illinois, L. R. St. R. Co. &C.C.C. traffic. local . v. Illi Commission Railroad Mississippi 514 In. held it was S.U. Company, Railroad Central nois which directed commission railroad orders, a state that stations, local certain at trains interstate stopping been already had facilities transportation, adequate where interstate to attempt an unlawful provided, Constitution. Federal to repugnant these from deduced be to rule general Applying here, consideration are under regulations such to cases statutes constitutionality, it is evident interstate upon effect their upon depend will this decisions former with It is consistent rights, constitutional interpretation proper a with action-upon Congressional the’absence least man- regulate, to- State subject-matter, samé dangerous approach shall trains ner which the .con- given, be shall which signals crossings, such cir- under required be shall train trol reference situated be so may Crossings cumstances. dangerous highly them render toas or curves to’ cuts or be may They highways. using those high aat them approach so cities, towns near danger great with attended be would speed rate may crossings hand, highway other theOn limb. life inter- require together near so so numerous all such indiscriminately speed slacken *9 OCTOBER'TERM,
Opinion of the Court. crossings would be practically destructive of the success- ful operation of such passenger , trains. Statutes which require the speed of such trains to be checked at all n crossings so situated might not only be a regulation, but
also a direct burden upon interstate commerce, and there- fore beyond the power of the State to enact.
It is the settled law of this court that one who would
strike down a state statute as violative of the Federal
Constitution must bring himself by proper averments
arid showing within the class as to whom the act thus
attacked is unconstitutional.
must show
He
alleged unconstitutional
feature of the law injures him,
and so operates as to deprive him of rights protected by
the Federal Constitution. Tyler v. The Judges, 179 U. S.
405; Turpin v. Lemon,
“Defendant further shows that it is impossible to ob- *10 v. KING. CO. Court. of the Opinion .S.U. is défendant as mails carry the and statute said serve the with it has the contract under them carry to required inter- an do to impossible likewise is it and Government; the with comply time the same , at and business, statute. of said terms as inoperative statute said that says, it “Wherefore ,the with comply to required, be it should it, and to railroad.. line on same that prays and verify, ready to stands it which “All cost.” its reasonable with discharged hence it the . the to answer amendment oral, this to demúrrer On Peti- dismissed.. it was and insufficient held was same ques^ Federal the raise sought to further counsel tioner’s engineer an by the trial of proof offer an tion . follows: as company, Carolina South between that pr,ove expect “I road hundred one practically are there and Atlanta line hundred one and eighty-five between crossings, one and hundred one distance that crossings; road close very localities in some crossings that miles; other, each yards few hundred within and together, making average on but apart, farther others and further,. to show expect We mile almost. crossing checking keep and check and obsérve that should stop and to control, under train to have so consume , would crossing, on thing be person dependent, crossing, éach minutes to ten five from train length weight course, upon eight of seven .or average an make it would but grade;' up made was train this to show wishWe minutes. from runs train vestibule 39, the No. known Virginia, through Washington, city Georgia; Carolina Carolina, South North also another, State from one passengers carrying State one it, from . on- freight car with express an carrying obedience show expect wishWe to another. OCTOBER TERM, 1909.
Opinion of the Court. to that crossing act would hinder,' and practically pre- vent,. interstate business being done by the defendant railroad. We wish to show the conditions I just have stated all existed at the time this accident occurred, 'on the 11th of October, 1903.”
This testimony was excluded and an exception was taken. It is apparent from this outline of the state of the *11 record that this when testimony was offered there was no answer on file in the case under which it would be compe- tent. A demurrer had been sustained to the amendment to the answer, and the case stood upon the complaint and general the issue filed by the defendant. It is elementary that proof the must conform to the allegations, and that without proper allegations testimony cannot be admitted. We are then remitted to the question, Did the court err in sustaining the demurrer to the amended answer? The Circuit Court of Appeals held, and we think correctly, that an inspection of that document shows that it did not contain a proper averment of the facts, which would show that operation the of the statute in controversy was such as to unlawfully regulate interstate commerce, and, therefore, deprive the railway company its constitu- tional right to carry on such commerce unhampered such illegal restrictions. The amended answer contains the general statement that the statute is in violation of the commerce clause of the Constitution, and a direct burden upon, and impedes interstate traffic and impairs the usefulness of defendant’s facilities for that purpose; that it is impossible to observe the statute carrying mails and in interstate commerce business. But these averments are mere conclusions. They set forth no facts which would make the operation of the statute uncon- stitutional. They do show not. the number or location of the crossings at which the railway company would be required to check the speed its' trains so as to interfere with their operation. successful For aught that appears KING. v: CO. J., dissenting. Holmes, S.U. crossing the answer in this fact allegations of such and located so been have may happened injury this slackening the make toas character dangerous the using those safety the necessary point that requirement making statute a highway, unlawful an not regulation, police reasonable a only In hinder attempt showing situation aup setting facts absence applied character unreasonable amended think we circumstances, under defendant demurrer that defense, legal no up set answer sustained. properly was thereto that insists error plaintiff counsel,for learned special aof absence Georgia, decisions under an- statement,' particular more requiring demurrer have we. that say enough It sufficient. swer in- not do they, think decisions those examined pleading rule general from .the departure dicate conclusions, and mere facts must *12 action cause ato essential allegations definite want demurrer. to subject pleading renders defense Court Circuit judgment error no findWe eases. both affirmed same Appeals, Affirmed. dissenting. Holmes, Justice Mr. actions these to a defense up set petitioner on- burden such was sued it was under I, of Art. 8,§ violate toas among óf issue pure States —a United Constitution nee- it-was intelligently issue this try to in .order If law. I think facts, evidence take to essary specific without even evidence, hear bound it it, -maintain would facts allegation IBut law. declare know duty court’s
53.8 OCTOBER'TERM, J., dissenting.
Holmes, leave that question on one side because petitioners did not stop with the naked proposition, but alleged further that “it is impossible to observe said statute carry the- mails as the defendant is required to carry them under the contract has with the Government; and it is likewise impossible to do an interstate business, and at the same time comply with the terms of said -statute.” These aré pure allegations of fact. They mean on their face that the requirement that the engineer at every grade crossing should have his train under such control as to be able to stop if necessary to avoid running .down a man or wagon' crossing the track requires such delays as to, prevent or seriously to interfere with commerce among the States. They refer to physical conditions .and physical facts; they can refer to nothing-else, I think it obvious that they mean that the crossings are so nu- merous as to make the requirement impracticable, since I can think of nothing but the number of them that would have that effect.
The statement may be called a conclusion, but it is a conclusion of fact, just as the statement that a -certain liquid was beer is a conclusion of fact from certain im- pressions of taste, smell and sight. If the objection to the pleading had been that more particulars were wanted, although, for my part, I think it would have been un- necessarily detailed prolix pleading to set forth what and where the crossings were, the pleading should not have been rejected, but the details should have been re- quired. The petitioner showed that it was ready give by its' them offer of proof. But evidently the answer was - not held bad on ground. Presumably at least, as *13 stated by the counsel for the petitioner, it was held bad on the ground taken by the Supreme Court of that State, that althoúgh-the requirement was impracticable it was the law. Central Georgia Ry. Co. v. Hall, of 109 Georgia, 367, 369. See 160 Fed. Rep. 332, 337; S. C., 87 C. C. A. -539 STATES. UNITED v.
'FREEMAN Syllabus. S.TJ. the facts that further observed be tois it For 284, 289. although that and facts, (cid:127) were involved partic situation precise notice take not might Supreme notice, take might well crossings ular cáse in the notice taken have to seems Georgia Court United See numerous. were they mentioned, just 174 U. Co., Irrigation Dam & Grande Rio 2576, Ev., §§ Wigmore, cases many for 638, 690, ed., Law, 2d Ency. . Eng.& 17 Am. 862. Cyc. 2580 904; been had objection technical merely if Again, undoubtedly petitioner defense, to fatal thought plea. to amendment further it by met have would lia- to sustain justice miscarriage It seems m.e prob- I think possibly, which statute under bility heard until, been have facts unconstitutional, ably, I prove. offered alleged petitioner .'reversed. be should judgment think concurs Justice Mr. say White I am authorized dissent. in this STATES. UNITED
FREEMAN ISLANDS. PHILIPPINE THE OP COURT THE SUPREME TO ERROR 16, May 11, 1910. Decided April Submitted No. . ^by rights bill Philippine into carried
Provisions be shall person no “that 691; such-as 1369, Stat. 1902, c. July according enforced interpreted debt,” are to for imprisoned States, v. United Kepner time. meaning at to their well-known S. 100. interpreted, debt, generally for imprisonment from relieving Statutes contracts, liability on of debtors'for commitment relate money payment providing statutes penal enforcement