Gulf, C. & S. F. Ry. Co. v. Nelson

• Decision Date: 25 October 1893
• Citation: 23 S.W. 732
• Parties: GULF, C. & S. F. RY. CO. v. NELSON.
• Court: Texas Court of Appeals

23 S.W. 732

GULF, C. & S. F. RY. CO. v. NELSON.

Court of Civil Appeals of Texas.

October 25, 1893.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by C. O. Nelson against the Gulf, Colorado & Santa Fe Railway Company. There was judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry, for appellant. J. A. Gillette and S. H. Lumpkin, for appellee.

HEAD, J.

Appellee, as plaintiff in the court below, sued appellant for $158.95, statutory penalty for each day from the 16th day of June, 1889, to the time of trial, on the 30th day of January, 1890, alleging that it had shipped 21,000 pounds of wire and staples from Joliet, Ill., to Clifton, Tex., at an agreed rate of 75 cents per hundred, as evidenced by the bill of lading, and appellant refused to deliver the goods after tender of the amount thus shown to be due. The bill of lading was charged to have been issued by the agent of the Chicago, Rock Island & Pacific Railway Company, which was alleged to be a connecting line with appellant, and, by an arrangement with it, had authority to issue through bills of lading over their joint lines; and the agent who issued this bill was, in its issuance, also alleged to be the agent of appellant. There was no averment by either party that these two lines had established a joint tariff of rates, in compliance with the interstate commerce law, nor was there any denial under oath by appellant of the allegation by appellee that this bill of lading was executed by its agent, or by its authority. Appellant pleaded a general denial, and, specially, that the true weight was greater than that given in the bill of lading, and it only retained the goods until the correct amount of freight was paid, as it claimed the right to do by the terms of the contract, and, as it contended, it was required to do by the interstate commerce law. A part of the freight having been delivered, the penalty was calculated upon the basis of the amount of freight that would have been due on that not delivered, and a trial before a jury resulted in a verdict and judgment in favor of appellee for $3,109.50, from which this appeal is prosecuted.

Appellant contends, in an able brief, citing numerous authorities, that the statute of this state imposing a penalty upon a common carrier who refuses to deliver freight upon tender of the charges specified in the bill of lading has been absolutely and entirely superseded by the act of congress known as the "Interstate Commerce Law," in so far as it could have application to a shipment originating in another state and extending into this; in other words, that our statute, in so far as it applies to such shipments, would be a regulation of commerce between the states, the power to do which is confided by the federal constitution exclusively to the congress of the United States, and since the exercise of this power by that body, in the passage of the act above referred to, the state statute can have nothing to do with such shipments, even though the carrier had not subjected himself to the requirements of that act. That our statute is not a regulation of interstate commerce, within the meaning of the prohibition contained in the federal constitution, but is more properly classed as a police regulation, which the state has the power to make, was decided upon mature consideration, in the case of Railway Co. v. Dwyer, 75 Tex. 572, 12 S. W. Rep. 1001. It is true that case grew out of facts which occurred prior to the passage of the act of congress, but the opinion was not placed upon that ground; and in the case of Dillingham v. Fischl, 1 Tex. Civ. App. 546, 21 S. W. Rep. 554, it was followed, as applying to a case originating since that time. In this last case, however, it was held, in case of a conflict between the statute and the act of congress, the latter would prevail. The supreme court of Arkansas, in the case of Railway Co. v. Hanniford, 49 Ark. 291, 5 S. W. Rep. 294, construed a statute almost identical with ours, and arrived at the same conclusion as our supreme court in the Dwyer Case. We have no disposition to enter upon an extended discussion of the question. The line of demarcation between the regulations the state can and cannot make is so shadowy and variable, and so entirely dependent upon the impression the particular facts of each case may make upon the different members of the supreme court of the United States, that but little importance would be attached to our views, beyond the effect they may have upon the disposition to be made of the case before us, and we shall content ourselves with saying that we agree, both upon principle and authority, with the conclusions announced in the cases above cited. It does not seem to us that the statute in question can fairly be construed as an attempted regulation of interstate commerce. It does not attempt to prescribe the charges that shall be made for the carriage of goods, nor in any manner to interfere with the freedom of the carrier in making his contracts in reference thereto, but only prescribes a speedy and effectual remedy for the enforcement of the contract after it is made, and the goods carried to their destination within this state. It makes no discrimination against interstate shipments, but only says that common carriers, whether state or interstate, occupy such a position of vantage in reference to goods in their possession that the interests of consignees generally must be protected by imposing heavy penalties upon a carrier who insists upon retaining possession of property intrusted to him, after he has been tendered the full amount of his charges, as shown by his written contract. In other words, carriers should not be allowed to use their possession of the shipper's property to force him into new terms, not agreed on as a part of the original arrangement. We think this clearly a police regulation, not denied to the state, in the same sense that numerous other regulations for the conduct of this business, about which no question is raised, are police regulations. It has already been repeatedly held that this statute only applies to contracts which the defendant carrier has...