Norfolk & W. R. Co v. Commonwealth

• Citation: 93 Va. 749,24 S.E. 837
• Court: Virginia Supreme Court
• Decision Date: 11 June 1896
• Parties: NORFOLK & W. R. CO. v. COMMONWEALTH.

24 S.E. 837

93 Va. 749

NORFOLK & W. R. CO.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 11, 1896.

Constitutional Law—Interstate Commerce.

1. A train consisting of empty freight cars being prepared, and taken to a point without the state, for the purpose of transporting coal within the state from such point, is not engaged in interstate commerce.

2. The state may, in order to secure and protect the lives or health of its citizens, or to preserve good order and the public morals, legislate for such purpose, in good faith, and without discrimination against interstate or foreign commerce, without violating the interstate commerce clause of the United States constitution.

3. Code, § 3S01, prohibiting the running of freight trains on Sunday, does not conflict with the interstate commerce clause of the federal constitution. Norfolk & W. R. Co. v. Commonwealth, 13 S. E. 340, 88 Va. 95, overruled.

Error to circuit court, Appomattox county; John D. Horsley, Judge.

The Norfolk & Western Railroad Company was convicted of running its freight trains on Sunday in violation of Code, § 3801, and brings error. Affirmed.

T. J. & F. L. Kirkpatrick and W. H. Mann, for plaintiff in error.

The Attorney General, for the Commonwealth.

BUCHANAN, J. The plaintiff in error was indicted in the county court of Appomattox county for violating section 3801 of the Code, which is as follows:

"No railroad company, receiver, or trustee controlling or operating a railroad, shall, by any agent or employe, load, unload, run, or transport upon such road on a Sunday, any car, train of cars, or locomotive, nor permit the same to be done by any such agent or employe, except where such cars, trains, or locomotives are used exclusively for the relief of wrecked trains, or trains so disabled as to obstruct the main track of the railroad; or for the transportation of United States mail or for the transportation of passengers and their baggage; or for the transportation of live stock; or for the transportation of articles of such perishable nature as would be necessarily impaired in value by one day's delay in their passage: provided however, that if it should be necessary to transport live stock or perishable articles on a Sunday to an extent not sufficient to make a whole train-load, such train-load may be made up with cars loaded with ordinary freight."

Section 3802: "The word 'Sunday' in the preceding section shall be construed to embrace only that portion of the day between sunrise and sunset; and trains in transitu having started prior to twelve o'clock on Saturday night, may, in order to reach the terminus or shops of the railroad, run until nine o'clock the following Sunday morning, but not later."

The ease was tried upon the following agreed state of facts: "That the train composed of empty coal cars, which are used exclusively in the coal business, as described below, passed through Appomattox county, and by Appomattox station, between 9 o'clock a. m. and 3 o'clock p. m. of Sunday, April 2, 1893, going from Crewe to Roanoke; said points being divisional terminal points on the Norfolk & Western Railroad. That when the train arrived at Roanoke it would be broken up in the company's yard, and, as soon as practicable, would be put into another train, with another engine and crew, and sent by way of Bluefield, in West Virginia, to the coal mines at Pocahontas, in Virginia, and to others in West Virginia. At these mines the cars would be loaded, and sent by way of Bluefield, in West Virginia, to Lambert's Point, in Virginia. The coal so shipped would be coal sold to parties out of the state of Virginia before it leaves Bluefield, and to be conveyed to the purchasers outside of Virginia by way of Bluefield, W. Va., and Lambert's Point, Va."

"That said train was not one of those included in the exemptions in section 3801, Code Va. 1887."

The plaintiff company was found guilty and fined, and the judgment of the county court was affirmed by the circuit court. The action of the circuit court in affirming the judgment is complained of, and is before us for review in this case.

In the case of Norfolk & W. R. Co. v. Com., reported in 88 Va. 95, 13 S. E. 340, this court held that the statute under which the indictment in this case was made was inconsistent with the commerce clause of the constitution of the United States, in so far as it applied to trains running between different states, or engaged in transporting interstate commerce, and therefore void.

The counsel for the plaintiff company insists that the principle decided in that case is the same that is involved in this, and conclusive of it. On the other hand, the attorney general, for the commonwealth, contends that the questions involved in the two cases are differentand, if they were the same, that the decision relied on as controlling this is erroneous, and ought not to be followed.

The train which the plaintiff company was indicted for running in violation of section 3801 of the Code was made up entirely of empty cars, which, it is agreed, were used exclusively in carrying articles of interstate commerce.

The fact that they had been so used in the past, and were intended to be so used in the future, does not show that they were, at the time when the act was done for which the plaintiff company was indicted, engaged in interstate commerce.

It was held by the supreme court of the United States in Coe v.Errol, 116 U. S. 517, 525, 0 Sup. Ct. 475, that "when the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state. Until then it is reasonable to regard them as not only within the state of their origin, but as a part of the general mass of property of that state, subject to its jurisdiction, and liable to taxation there, if not taxed by reason of their being intended for exportation, but taxed without discrimination, in the usual way and manner in which such property is taxed in the state."

If this be the true rule by which to determine when the products of the mine become articles of interstate commerce, and cease to be controlled entirely by the laws of the state, why is it not the correct rule to determine when the carrier of such products becomes engaged in transporting interstate commerce, and is protected and governed by the laws of the United States? In the one case the miner may intend to ship a particular product to another state, and may be preparing the article for shipment, yet it is not an article of interstate commerce until it starts upon its final destination to that state, and until that time is subject to the laws of the state alone, and has none of the rights of an article of interstate commerce. In the other case the carrier may be preparing certain cars upon, which to transport the products of the miner to the foreign state, and they may be on their journey to the place from which they are to be shipped, yet why should those cars be considered as engaged in interstate commerce until they are loaded with articles committed to the carrier to be transported to another state?

The reason given for the rule that goods do not become an article of interstate commerce until actually put in motion for some place out of the state, or committed to the carrier for such transportation, is that until that time the article, though intended for exportation, may never be exported, as the owner has the perfect right to change his mind at any time.

The common carrier has the same right to change his mind, and ship on other cars than those which he may have provided for that purpose, and the cars which were intended for that purpose may never be used.

The rule fixed by the supreme court in the one case seems equally applicable to the other. Applying that rule to the facts of this case, it would seem that the train for which the plaintiff company was indicted for running was not when so running engaged in transporting articles of interstate commerce, and was therefore controlled exclusively by the laws of the state.

But if this be not the correct view, and it be held that the plaintiff, in running the train, was engaged in the business of interstate commerce, was the legislation in question within the powers reserved to the state, and not in conflict with the constitution of the United States?

The right of the state to enact laws to protect the lives, health, and property of its citizens, and to preserve good order and the public morals, is a matter of so much consequence, and so far-reaching in its effects, that its courts ought not to hold that the statutes made for that purpose are inconsistent with the constitution of the United States, unless they are plainly and clearly so.

"Questions of this nature, " as was said by Mr. Justice Story in Houston v. Moore, 5 Wheat. 1, at an early day in our judicial history, "are always of great importance and delicacy. They involve interests of so much magnitude, and of such deep and permanent public concern, that they cannot be approached without anxiety. The sovereignty of a state in the exercise of its legislation is not to be impaired unless it be clear that it has transcended its legitimate authority; nor ought any power to be sought, much less to be adjudicated, in favor of the United States, unless it be clearly within the reach of its constitutional charter."

And in the very recent case of Plumley v. Massachusetts, decided at the last term of the same court, and reported in 155 U. S. 461, 15 Sup. Ct. 154, the court, speaking through Mr. Justice Harlan (at pages 479, 480, 155 U. S., and page 154, 15 Sup. Ct.), said: "We are...