Bagg v. Wilmington, C. & A.R. Co.
| Decision Date | 23 December 1891 |
| Citation | 14 S.E. 79,109 N.C. 279 |
| Parties | BAGG v. WILMINGTON, C. & A. R. Co. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; R. F. ARMFIELD Judge.
Action by H. A. Bagg against the Wilmington, Columbia & Augusta Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.
The other facts fully appear in the following statement by AVERY J.:
This was a civil action, brought to recover a penalty imposed by section 1967 of the Code for detention of freight more than five days after delivery for shipment without the consent of the consignor, tried before ARMFIELD, J., at September term 1890, of the superior court of New Hanover county. The termini of the defendant's road are one in North Carolina and the other in South Carolina. The goods were consigned by a shipper in Wilmington, N. C., to a person at a station on defendant's line in South Carolina. The court intimated an opinion that the statute was unconstitutional as to freight shipped beyond the limits of the state of North Carolina, and that the plaintiff could not recover. Plaintiff thereupon submitted to a judgment of nonsuit, and appealed.
Geo Rountree, for appellant.
Junius Davis, for appellee.
AVERY J., (after stating the facts.)
The power to regulate commerce among the several states, as well as with foreign nations, was delegated to the federal government [1] in pursuance of a preconceived purpose on the part of the leading representatives of public opinion to provide for and promote the free and unrestricted sale and interchange of commodities between the states. It appears from contemporaneous history of the condition of the country, especially from the journals of the general assemblies of the states and of the federal convention, that there was a deep-seated desire in all parts of the Union to establish a uniform system of commercial regulation, such as would prohibit one state from imposing burdens upon the business of citizens of other states, whether by a tax upon their persons or property in transitu, on their goods when offered for sale, or by an impost tax. 1 Elliott, Deb. 140; 5 Elliott, Deb. 540. The earlier cases that gave rise to the construction of this clause of the constitution were chiefly controversies as to the right of a state to levy a tax upon passengers or products passing through and along its highways to a market beyond its borders. The test of constitutionality to which every doubtful state statute was subjected was involved in the inquiry whether its enforcement would tend to trammel the trade between citizens of different states or embarrass them in passing from one to another. The idea was crystallized by Justice STRONG in the definition of "regulating commerce," given by him in Railroad Co. v. Husen, 95 U.S. 470, to-wit: "Transportation is essential to commerce, or, rather, it is commerce itself; and every obstacle to it, or burden laid upon it, by legislative authority, is regulation." Ward v. Maryland, 12 Wall. 418; Case of State Freight Tax, 15 Wall. 232; Welton v. State, 91 U.S. 275; Henderson v. Mayor, 92 U.S. 259; Chy Lung v. Freeman, Id. 275. "Commerce," said Chief Justice MARSHALL, "undoubtedly is traffic, but it is something more; it is intercourse." The police power is the authority to establish such rules and regulations for the conduct of all persons as may be conductive to the public interest, and, under our system of government, is vested in the legislatures of the several states of the Union; the only limit to its exercise being that the statute shall not conflict with any provision of the state constitution, or with the federal constitution, or laws made under its delegated powers. Martin v. Hunter's Lessee, 1 Wheat. 326; State v. Moore, 104 N.C. 714, 10 S.E. Rep. 143; State Tax on Railroad Gross Receipts, 15 Wall. 284. So long as the state legislation is not in conflict with any law passed by congress in pursuance of its powers, and is merely intended and operates in fact to aid commerce, and to expedite, instead of hindering, the safe transportation of persons or property from one commonwealth to another, it is not repugnant to the constitution of the United States, and will be enforced either as supplementary to partial federal statutes relating to the same subject, or in lieu of such legislation, where congress has not exercised its powers at all. Morgan, etc., S. S. Co. v. Louisiana Board of Health, 118 U.S. 455, 6 S.Ct. 1114; Train v. Disinfecting Co., 144 Mass. 523, 11 N.E. 929; Smith v. Alabama, 124 U.S. 465, 8 S.Ct. 564; Railroad Co. v. Alabama, 128 U.S. 96, 9 S.Ct. 28; Welton v. State, 91 U.S. 275; Railroad Co. v. Fuller, 17 Wall. 560.
The power of congress over commerce between the states is, as a general rule, exclusive, and its inaction is equivalent to a declaration that it shall be free from any restraint which it has the right to impose, except by such statutes as are passed by the states for the purpose of facilitating the safe transmission of goods and carriage of passengers, and are not in conflict with any valid federal legislation. Cooley, Const. Lim. 595; County of Mobile v. Kimball, 102 U.S. 697; Wilson v. McNamee, Id. 572; Wilson v. Black Bird, etc., Co., 2 Pet. 245; Pound v. Turck, 95 U.S. 459; Turner v. Maryland, 107 U.S. 38, 2 S.Ct. 44; Morgan, etc., S. S. Co. v. Louisiana Board of Health, supra. Familiar instances of statutes falling within the foregoing exception are found in those relating to harbor pilotage, beacons, buoys, the improvement of navigable waters, the examination as to fitness of engineers and other railroad employes, and which are discussed by the courts in the cases cited above. The validity of these and other state laws, which relate directly to, or indirectly affect, commerce between the states, has been sustained upon the ground, either that the particular statute upon its face appeared to have been passed for the purpose of expediting the safe transportation of persons and property, or in the exercise of police powers, which it is more convenient to leave subject to local legislation, such as the building of bridges over inland navigable streams.
Where the manifest tendency of enforcing such laws has been, as far as could be foreseen from their terms, to impede the free and expeditious conduct of commerce over interstate lines by land or water, they have been declared repugnant to the organic law, and void, even where congress had failed to legislate on the branch of the subject to which they relate. The futile attempts by state legislatures either to give exclusive privileges to a particular telegraph company, or to subject telegraph companies generally to such license tax or tax on messages as would imply the right to destroy their business by burdening them with such imposts, illustrate the view which we have submitted, that, where congress has not exercised a police power comprehended under the general authority to regulate commerce, the states may exercise the power to aid, but not to impede or obstruct, it. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S. 1; Telegraph Co. v. Texas, 105 U.S. 460; Leloup v Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380. The supreme court of the United States has also, in a long line of cases, passed upon the power assumed by some of the states to impose a tax on persons or goods in transitu to another state,--a license tax upon traveling salesmen, who might offer to sell within their borders merchandise manufactured in or commodities shipped from another state, before such articles of commerce should become intermingled with its own products. These adjudications within the last decade marked much more clearly the line to which congress may rightfully claim exclusive authority to legislate, and have also indicated more definitely the limit to which the states may still cross that boundary in the exercise of permissive police power. The controlling principle which pervades all of them is that only such legislation by the states is inhibited as impedes, obstructs, or controls commerce, or comes in conflict with some statute passed by congress to regulate it. Robbins v. Shelly Taxing Dist. 120 U.S. 489, 7 S.Ct. 592; McCall v. California, 136 U.S. 104, 10 S.Ct. 881; Asher v. Texas, 128 U.S. 129, 9 S.Ct. 1; Lyng v. Michigan, 135 U.S. 166, 10 S.Ct. 725; Walling v. People, 116 U.S. 446, 6 S.Ct. 454; Inman S. S. Co. v. Tinker, 94 U.S. 238; In re Rahrer, 140 U.S. 545, 11 S.Ct. 865; Bowman v. Railroad Co., 125 U.S. 465, 8 S.Ct. 689, 1062; Philadelphia, etc., S. S. Co. v. Pennsylvania, 122 U.S. 326, 7 S.Ct. 1118. In Railroad Co. v. Husen, supra, Justice STRONG, delivering the opinion, said: In Welton v. State, 91, U.S. 282, it is said: ...
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