Kerfoot-Bell Co. v. Kerfoot. Chi., R. I. & P. Ry. Co.

• Decision Date: 26 September 1911
• Docket Number: Case Number: 1115
• Citation: 1911 OK 307,118 P. 367,30 Okla. 19
• Court: Oklahoma Supreme Court
• Parties: KERFOOT-BELL CO. v. KERFOOT. CHICAGO, R. I. & P. RY. CO. v. BEATTY. *

1911 OK 307

118 P. 367

30 Okla. 19

KERFOOT-BELL CO. v. KERFOOT.

CHICAGO, R. I. & P. RY. CO. v. BEATTY. *

Case Number: 1115

Supreme Court of Oklahoma

Decided: September 26, 1911

Syllabus

¶0 1. COMMERCE -- Interstate Commerce -- Carriers -- Failure to Furnish Cars. The act of the Legislature of Oklahoma Territory of 1905 (section 2, art. 2, c. 10, p. 144, Sess. Laws of 1905), imposing upon railroad companies a penalty of $ 1 per day for failure to furnish cars within four days after they are requested, but excusing a company "in case of fire, washouts, strikes, lockouts, or other unavoidable casualties," is not an infringement of the commerce clause of the Constitution of the United States (article 1, sec. 8), and not in conflict with Act Cong. June 29, 1906, c. 3591, sec. 1, 34 St. at L. 584 (U.S. Comp. St. Supp. 1911, p. 1285).

2. STATUTES--Construction. Where a statute is susceptible of two constructions, one of which will uphold it, while the other will strike it down, it is the duty of the court to accept the former construction.

3. WITNESSES--Cross-Examination. The cross-examination of a witness should be confined to the subject-matter of his direct examination.

4. COMMERCE--Powers Remaining in State. An act of Congress originating in its power to regulate interstate commerce does not annul an act of the state originating in its police power, unless there is such a conflict between the two as that the enforcement of the act of the state would be to frustrate the operation of the act of Congress, and to refuse to its provisions their natural effect.

* Appealed to the United States Supreme Court.

Error from Caddo County Court; B. F. Holding, Judge.

Action by W. W. Beatty against the Chicago, Rock Island & Pacific Railway Company to recover the penalty of $ 1 per day per car for not supplying cars for the movement of freight from Verden, Okla., to Chickasha, Ind. T., in November and December, 1906. Judgment for plaintiff, and defendant brings error. Affirmed.

C. O. Blake, E. E. Blake, H. B. Low, and R. J. Roberts, for plaintiff in error

A. J. Morris, for defendant in error

AMES, C.

¶1 The question involved in this case is the constitutionality of section 2, art. 2, c. 10, of Sess. Laws 1905 (Comp. Laws 1909, p. 144, sec. 521). That section is as follows:

"It shall be the duty of every railroad company operating a line of road wholly or in part within this state for the transportation of freight, upon the verbal or written application of any shipper to its station agent or other agent in charge of transportation of freight for a car or cars to be loaded with freight other than perishable freight or live stock, stating the character of the freight and its final destination, to furnish said car or cars within four days from seven o'clock a.m. of the day following such application. Or, when such application specifies a future day when said car or cars are required, giving not less than foul days' notice thereof computing from seven o'clock a.m. of the day following such application, it shall be the duty of said company to furnish said cars or car on the day specified in said application. For failure to comply with this section said company shall forfeit and pay to the shipper applying for said car or cars the sum of one dollar per car per day or fraction of a day's delay after free time, together with all actual damages said applicant may sustain thereby: Provided, that if in case of fire, washouts, strikes, lockouts, or other unavoidable casualties such railroad company shall not be able to furnish such cars within such time, then and in that event such time of demurrage shall not begin to run until such obstacles and hindrances are removed."

¶2 The argument is made that the section conflicts with the commerce clause of the Constitution of the United States, by which Congress is vested with power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Article 1, sec. 8. It is, of course, thoroughly established that this power of Congress to regulate interstate commerce is exclusive, and as extensive as the commerce which is to be regulated. It is likewise thoroughly established that the state has full power to regulate intrastate commerce, and that neither the state nor the United States can enter upon or occupy the field exclusively committed to the other. It is likewise thoroughly settled that the states did not grant unto the United States their police power, and that, consequently, they retained it, and, having retained it, it is a function which they not only have the right to exercise, but which it is their duty to exercise. The inquiry, therefore, is whether this statute regulates interstate commerce, or whether it is a mere exercise of the state's police power; whether its design is to obstruct interstate commerce, or merely to facilitate the movement of freight, both inter and intrastate.

¶3 It seems clear to us that the purpose of the statute is the latter, and not the former. The prompt movement of the cars for interstate commerce cannot be a burden upon it, but an aid to it; and, if this statute affects interstate commerce, it is merely incidental and in aid of it. Western Union Tel. Co. v. Crovo, 220 U.S. 364, 31 S. Ct. 399, 55 L. Ed. 498, decided April 3, 1911, involved the constitutionality of a Virginia statute imposing upon telegraph companies the duty of transmitting dispatches faithfully, impartially, and promptly, and imposing a penalty of $ 100 for unreasonable delay: The action was brought by the plaintiff to recover the penalty for delay in transmitting a message from Richmond, Va., to Brockton, N. Y., and the telegraph company contended that the statute was a regulation of interstate commerce, and therefore void. In the opinion by Mr. Justice Lurton the court denied this contention, and said:

"The requirement of the Virginia statute, as here applied, is a valid exercise of the power of the state, in the absence of legislation by Congress. It is neither a regulation nor a hindrance to interstate commerce, but is in aid of that commerce."

¶4 In Chicago, R. I. & P. Ry. Co. v. Arkansas, 219 U.S. 453, 465, 31 S. Ct. 275, 378, 55 L. Ed. 290, decided February 20, 1911, the Supreme Court upheld the statute of Arkansas prescribing a minimum of three brakemen for freight trains of more than 25 cars and denied the contention that such a statute was a regulation of interstate commerce. In the opinion Mr. Justice Harlan says:

"It is not too much to say that the state was under an obligation to establish such regulations as were necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Beyond doubt, passengers or interstate carriers, while within Arkansas, are as fully entitled to the benefits of valid local laws enacted for the public safety as are citizens of the state. Local statutes directed to such an end have their source in the power of the state, never surrendered, of caring for the public safety of all within its jurisdiction; and the validity under the Constitution of the United States of such statutes is not to be questioned in a federal court, unless they are clearly inconsistent with some power granted to the general government, or with some right secured by that instrument, or unless they are purely arbitrary in their nature. The statute here involved is not in any proper sense a regulation of interstate commerce, nor does it deny the equal protection of the laws. Upon its face it must be taken as not directed against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce, and for the protection of those engaged in such commerce."

¶5 In Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 31 S. Ct. 59, 54 L. Ed. 1088, decided November 28, 1910, a statute of Michigan was upheld which prohibited telegraph companies from limiting their liability on account of a negligent failure to deliver a telegram, even though addressed to a person in another state, and the contention that such a statute was a regulation of interstate commerce was denied.

¶6 In Atlantic Coast Line R. Co. v. Mazursky, 216 U.S. 122, 30 S. Ct. 378, 54 L. Ed. 411, a South Carolina statute was upheld which penalized the failure of a common carrier to adjust and pay, within a specified time, claims for loss or damage, and the contention that such a statute was a regulation of interstate commerce was denied. Mr. Chief Justice Fuller, in delivering the opinion of the court, quotes with. apparent approval, on page 132 of 216 U.S. and page 381 of 30 Sup. Ct. (54 L. Ed. 411), the following language from Seegers Bros. v. Seaboard Air Line R. Co., 73 S.C. 71, 73, 52 S.E. 797, 12l Am. St. Rep. 921:

"The duty to make prompt settlement for loss or damage to goods is but an incident of the duty to transport and deliver safely and with reasonable diligence. The statute in question was designed to effectuate an important public purpose, viz., to compel the common carrier to perform with reasonable diligence the duty which peculiarly appertains to his business as a carrier of freight. The penalty is but a means to that end."

¶7 And see same case, 207 U.S. 73, 28 S. Ct. 28, 52 L. Ed. 108.

¶8 In Western Union Tel. Co. v. James, 162 U.S. 650, 16 S. Ct. 934, 40 L. Ed. 1105, a statute of Georgia imposing a penalty for the failure to diligently deliver to the person addressed in Georgia an interstate message was upheld as a valid exercise of the state's power and not a regulation of interstate commerce, and in the opinion Mr. Justice Peckham says:

"While it is vitally important that commerce between the states should be unembarrassed by vexatious state regulations regarding it, yet on the other hand, there are many occasions where the police power of the state can be properly exercised. to insure a faithful and prompt performance of duty within the limits of the state upon the part of those who are engaged

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