164 Ind. 196 | Ind. | 1905
This action was commenced before a justice of the peace'. Appellant was charged with a violation of the act of March 6, 1901 (Acts 1901, p. 97, §3312a Bums 1901). The act (omitting the enacting clause) is as follows: “That all express companies doing business within the State of Indiana shall deliver all express matter to all persons to whom the same is directed, living within the corporation limits of cities within the State having a population of twenty-five hundred or, more inhabitants, according to the last preceding United States census, and any express company failing to deliver such express matter shall be fined in a sum not to exceed $100, or less than $10, for each and every offense.”
It appears from the evidence upon the trial in the circuit court that on or about July 24, 1902, appellant was engaged in the express business, and that it had an office in the city of Kokomo. On that, day the prosecuting witness, Thomas A. Gerhart, who lived in said city, received through the mail a postal card from said company, stating that it had at its office an express package for him, consisting of a box of fruit, and requesting him to call for it. The postal card was addressed to Mr. Gerhart at his residence, No. 395 South Main street in said city. Mr. Gerhart called up the agent by telephone, and informed him that he desired to have the package delivered at his said residence. This the agent refused to do. There was a second refusal on his part in a conversation between the two at the express office, in the course of which the agent stated that the express companies doing business in that city had limited their delivery limits
Appellant assigns error in this court as follows: “(1)
1. It is first contended by appellant’s counsel that the charge in the affidavit that “the United States Express Company, late of said county, did then and there, being an express company, doing business within the State^of Indiana,” etc., amounts to an averment that appellant is a corporation, and that the evidence shows that appellant is a partnership. Assuming that, in the absence of proof of the law under which appellant claims to possess the extraordinary powers provided for in its articles, it is not shown that appellant was a corporation, it does not follow that there is any variance between the allegation and the proof. The legislation of this State shows that since 1855 the General Assembly has not only assumed to regulate, but has been familiar with the manner of the organization of, that class of carriers which furnishes express facilities as auxiliary to the public service furnished by corporations operating over railroads and water-ways. Acts 1855, p. 99 ; Acts 1879, p. 146, §1, §3306 Burns 1901; Acts 1883, p. 107, §1, §3309 Burns 1901; Acts 1901, p. 149, §1, §3312b Bums 190Í. The acts cited describe the organizations regulated as all copartnerships, associations of persons, joint-stock associations or companies, and sometimes the word “corporation” is also used. In all of these acts there is the added description, “usually called express companies.” In the light of the legislation referred to, it is clear that when the act under review was adopted the words “all express companies doing business within the State of Indiana” had a settled meaning, and that they were employed in a generic sense. Indeed, any interpretation of the act which so limits its operation as not to include all of those auxiliary organizations which use the ¿railroads and waterways of the State as a means of trans
2. Counsel have called our attention to certain early holdings of this court to the effect that, where an organization is described as a company, it will' be presumed that it was intended to aver that it, was a corporation. There is no occasion to call these rulings in question. Here we have a statute which uses the words “express companies” as descriptive of a class, and it is evident that the State is proceeding against appellant under this enactment. The words of the affidavit, “being an express company doing business within the State of Indiana,” are set out by way of inducement. Matter of inducement need not be set out in the indictment either so much in detail or with such directness of charge as those parts are required to be which constitute the gist of the offense. 1 Bishop, Crim. Proc. (4th ed.), §554; Clark, Crim. Proc., p. 176. We do not perceive how it can be contended with any show of reason, considering the nature of the matter, that the State may not aver in the language of the statute that the defendant belonged to the class against whom the penalty is denounced. The inducement describes appellant as an express company, and the proof shows that it belonged to that class of organizations which the statute describes as companies. As stated by an authoritative writer: “On the general principles of common-law pleading it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is.” Wharton, Crim. Pl. and, Pr. (9th e'd.), §220. This is a matter of settled law in this State. Parks v. State (1902), 159 Ind. 211, and cases there cited. It is competent for the
3. It is next claimed by counsel for appellant, as we understand them, that the statute does not require a delivery at the residence or place of business of the consignee, but is satisfied with a personal delivery, from which we infer that appellant’s position is that the statute may be complied with by holding the package at the local office subject to the call of the consignee. We recognize that criminal statutes are to receive a strict construction, and that courts are not at liberty to explore without the letter of the enactment for the intent of the legislature, but it is nevertheless true that the purpose of the lawmaking power may be ascertained from a consideration of the enactment .as a whole, and that it is not to be construed so strictly as to defeat the obvious intent. State v. Hogreiver (1899), 152 Ind. 652, 45 L. R. A. 504; 2 Lewis’s Sutherland, Stat. Constr. (2d ed.), §528. The provision which limits the operation of the statute to cases where the consignee lives within the corporate limits would be meaningless if it were not the purpose of the legislature to require the carrier to do something more than to deliver the package at its own office. In this instance the address upon the package indicated that it was to he delivered at the residence of the consignee, and in such a case the duty of the carrier was plain.
4. It is argued that the act is so general as to amount to an attempt to regulate interstate commerce, and that therefore the enactment is void as a whole. As a proper preliminary to a discussion of the principal proposition thus asserted, we shall consider the duty of a carrier by express in the absence of any statute. Laying aside all question as to the delivery of goods by express at small stations, and also the question of usage as affecting the carrier’s obligation, neither of which is an element in the case before us, it
5. Having ascertained that the purpose of the statute is merely to require the carrier, under the compulsion of a penalty, to observe its general duty, the question confronts us as to whether the enactment is such an attempted interference with interstate commerce as to make the act void.
The decisions of the Supreme Court of the United States support the proposition that, in the absence of legislation by congress, the state may enact reasonable laws under the police power, which are local in their operation, although they may incidentally affect interstate commerce. Covington, etc., Bridge Co. v. Kentucky (1894), 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962; Western Union Tel. Co. v. James (1896), 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105; Pennsylvania R. Co. v. Hughes (1903), 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268. “The matters upon which the silence of congress is equivalent to affirmative legislation are national in their character, and such as fairly to require uniformity of regulation upon the subject-matter involved affecting all the states alike.” Western Union Tel. Co. v. James, supra; Mobile County v. Kimball (1880), 102 U. S. 691, 26 L. Ed. 238.
6. In Chicago, etc., R. Co. v. Solan (1897), 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688, the facts were that the plaintiff was injured in Iowa while traveling to Chicago in one of the cars of the company, upon a ticket which pur
In Western Union Tel. Co. v. James, supra, it was held that a statute of the state of Georgia requiring telegraph companies, under penalty, to receive dispatches and, on payment of the usual charges, to transmit and deliver them with due diligence, was a valid exercise of the power of the state as applied to messages by telegraph from points outside of and directed to points within the state. In addressing itself to a consideration of the statute the court said:' “Is it a mere police regulation, that hut incidentally affects commerce, such as Smith v. Alabama [1888], 124 U. S. 465, and which, at any rate, would be valid until congress should legislate upon the subject; or is it of such a nature, so extensive and national in character that it could only he dealt with by congress ? We do not think it is the latter. It is not at all similar in its nature to the case above cited of Hall v. DeCuir [1877], 95 U. S. 485. In one sense it affects the transmission of interstate messages, because such transmission is not completed until the message is delivered to the person to whom it is addressed, or reasonable diligence employed to deliver it. Blit the statute can be fully carried out and obeyed without in any manner affecting the conduct of the company with regard to the performance of its duties in other states. It would not unfavorably affect or embar
In Lake Shore, etc., R. Co. v. Ohio (1899), 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702, the validity of a statute of Ohio wyas assailed, which in terms provided that each railroad company “shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at each station, city or village containing over three thousand inhabitants.” In delivering the opinion of the court, Mr. Justice Harlan observed: “The statute does not stand in the way of the railroad company running as many trains as it may choose between Chicago and Buffalo without stopping at intermediate points, or only at very large cities on the route, if in the contingency named in the statute the required number of trains stop at each place containing three thousand inhabitants long enough to receive and let off passengers. It seems from the-evidence that the average time required to stop a train and receive and let off passengers is only three minutes. Certainly, the state of Ohio did not endow the plaintiff in error with the rights of a corporation for the purpose simply of subserving the convenience of passengers traveling through the state between points outside of its territory.”
7. It was held in United States v. Morsman (1890), 42 Fed. 448, that the “interstate commerce law only applies to common carriers engaged in operating lines of railway, or railway and water lines combined, and that it does not apply to* ‘express companies’ properly so termed; that is to
8. It is contended on behalf of appellant that it is not a foreign corporation, that it enjoys no franchises or grants of power from the State, and that therefore it is not subject to legislative regulation in the transaction of its legitimate business. Treating the first premise as correct, it follows that appellant is not subject to control by the State to the same extent that it would be if it were a foreign corporation, but it by no means follows from the premise that appellant and other like associations are not subject to any control by the State, as respects the manner in which they shall transact their business. The power of the legislature concerning domestic affairs, whether it be called police, governmental or legislative power, authorizes it to make all manner of reasonable laws, not forbidden or restrained by the federal or state Constitutions, which look to the regulation of the relative rights and duties of all persons and corporations within the jurisdiction of the State. Lake Shore, etc., R. Co. v. Ohio, supra; Cooley, Const. Lim. (7th ed.), p. 829; Parks v. State (1902), 159 Ind. 211, and cases cited.
The public character of the service which express com-
In the case last cited it was held that while it is the duty of railroad companies to carry express matter for the public, yet they can devise their own means for the carriage, provided, of course, there is reasonable promptness and security. It was further held in that case that, as the express company must be reasonably sure of the means required by it for transportation, and as its business on important lines is often so extensive as to require that cars shall be set apart for its use, the railroad company is not under any obligation to furnish other express companies with equal facilities for doing an express business over it's line. The result of this has been that there has grown up between the railroad companies and the express companies doing business over them, as was said in Baltimore, etc., R. Co. v. Voigt (1900), 176 U. S. 498, 511, 20 Sup. Ct. 385, 44 L. Ed. 560, “to a certain extent, a sort of partnership relation * * * in carrying on a common-carrier business.”
9. The only logical ground on which these carriers by express can justify their existence, as pointed out by Judge Rédfield, is as an auxiliary to carriers by railroad and boat,
10. It is urged on behalf of appellant that the act is a deprivation of liberty and of property without due process of law, and that it is for this reason in contravention of the fourteenth amendment. Preliminary to a discussion of this objection attention may be called to the fact that a constitution is presumed to relate to that which was recognized by the people as vital and fundamental, and that a legislative enactment is not to be overthrown because the court may be of opinion that it is harsh in its operation, or that it would have been wiser to have allowed a larger freedom to the individual. As was said by Mr. Justice Holmes in Otis v. Parker (1903), 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323: “While the courts must exercise a judgment ,of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to. its
• 11. Under the police power persons may be deprived of both liberty and property, at least in a sense, and that without redress, provided that it be by due process of law. Of course, .the mere act of the legislative power does not necessarily amount to due process of law, or, what is its equivalent, the law of the land. McKinster v. Sager (1904), 163 Ind. 671, and cases there cited. However, every presumption must be indulged by the courts which the circumstances reasonably admit of that the legislative authority was warranted in enacting the statute. “While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts.” Frisbie v. United States (1895), 157 U. S. 160, 165, 15 Sup. Ct. 586, 39 L. Ed. 657. It was held in Patterson v. Bark Eudora (1903), 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002, that an act of congress providing that it should be unlawful to- pay any seaman’s wages in advance of the time that he had actually earned the same was valid, because the obligations of the sailor and his temptations in foreign ports were such as to make the restriction a reasonable one.
12. We have before us the concrete case of a failure upon the part of the express company to deliver a package . to the consignee at his residence, as it was implied it would
13. The last contention assigned as a ground for the overthrow of the statute is that it is in violation of §21 of the bill of rights of the Constitution of Indiana. We content ourselves upon this point with the statement that we do not perceive that the statute contravenes said section.
Judgment affirmed.