Oliver v. Chicago, Rock Island & Pacific Railway Co.

• Citation: 117 S.W. 238,89 Ark. 466
• Parties: OLIVER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Decision Date: 01 March 1909
• Court: Supreme Court of Arkansas

117 S.W. 238

89 Ark. 466

OLIVER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Arkansas

March 1, 1909

Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield; Judge; reversed.

Action by R. H. Oliver & Son and another against the Chicago, Rock Island & Pacific Railway Company. A demurrer to the complaint was sustained, and plaintiffs R. H. Oliver & Son have appealed.

Act 193 of the Acts 1907 is entitled "An act to regulate freight transportation by railroad companies doing business in the State of Arkansas."

Section 1 requires railroad companies to furnish cars within six days of the filing of an application therefore by shippers, and provides that, for a failure to comply with this section of the act, the railroad company so offending shall forfeit and pay to the shipper applying, the sum of $ 5 per car per day or a fraction of a day's delay after the expiration of free time. The requirement to furnish cars upon application is absolute and unconditional.

Section 17 of the act contains the following clause: "Interstate railroads shall furnish cars on application for interstate shipments the same in all respects as other cars are to be furnished by intrastate railroads under the provisions of this act."

Cause reversed.

J. H Harrod, for appellants.

The act is valid as applied to intrastate business, notwithstanding its invalidity as to interstate business. 46 Ark. 312.

Buzbee & Hicks, for appellee.

Appellants concede that the act is invalid as to interstate business but the whole act is invalid. Its provisions are so connected in subject-matter, so dependent on each other and operate together for the same purpose, "that it cannot be presumed the Legislature would have passed the one without the other." Cooley on Const. Lim. 178; 162 F. 693; 201 U.S. 321; 203 U.S. 514; 100 U.S. 82, 99; 207 U.S. 463; 147 F. 419; 75 Ark. 542; 68 Mass. 84; 62 Tex. 630; 5 W.Va. 515; 13 Wis. 398.

N. W NORTON, Special Judge. BATTLE and WOOD, JJ., dissenting.

OPINION

N.W. NORTON, Special Judge.

When disposed of in the lower court, the complaint stood as one for the recovery of the penalty of five dollars per day for failure to furnish cars, under act 193, approved April 19, 1907. To this complaint a demurrer was interposed. The record discloses that the purpose for which the cars were demanded was the transportation of wood from Galloway to Little Rock. It is conceded that the cars were wanted for intrastate business. It is also conceded by counsel that the legislation in question is unconstitutional and void with reference to interstate business. Upon this point we express no opinion.

Treating it for the purpose of this case as void as to interstate business, the question is, must it be held void with reference to intrastate business also?

Federal control of interstate commerce is not more plenary than the State's control of domestic business; in fact, it is even less so in a particular not necessary to the decision of this case--that is, that while Federal control of interstate commerce may be somewhat affected by the police regulations of a State, there is probably no way in which the State's regulation of domestic commerce can be qualified, except as it may be done by provisions of the State's Constitution, or those higher rights of property which are superior to constitutional sanction.

At first view, there seems to be ample room for confusion and conflict between Federal and State laws dealing with commercial subjects, and many adjudications show this to be true. The difficulty, however, when present, is in the nature of the case, or in the nature of the legislation. When, as in this case, the controversy is connected with the shipment of goods, the difficulty can not arise, for every shipment will be to a point within the State or to a point without the State, and consequently one for the application of the Federal law, or one free from its contact. It seems that there could, as to domestic business, be no objection to the continued enforcement within a State of a statute broad enough in its terms to include interstate business. To the extent that it contemplated, or in its operation effected, any regulation of interstate business, it would be void; but that would be the limit of its invalidity, and in all other matters it would stand to be enforced.

This view would seem to be reasonable, and that it is the view of the Supreme Court of the United States, can clearly be gathered from the cases of Central of Georgia Railway Company v. Murphey, 196 U.S. 194, 49 L.Ed. 444, 25 S.Ct. 218, and Houston & Texas Central Railroad v. Mayes, 201 U.S. 321, 50 L.Ed. 772, 26 S.Ct. 491. In this last case we find the following pertinent statement: "As the power to build and operate railways, and to acquire land by condemnation, usually rests upon State authority, the Legislature may annex such conditions as they please with regard to intrastate transportation, and such rules regarding interstate commerce as are not inconsistent with the general right of such commerce to be free and unobstructed."

It is conceivable that a State regulation of domestic commerce could, in its operation, impair the usefulness of common carriers as to interstate business. There is, however, nothing in the act under consideration to prompt us to say that its enforcement as a State regulation would necessarily have such effect.

It is next contended that the act is unconstitutional because its requirement that cars be furnished is absolute and unconditional; that is, it does not mention anything that would justify or excuse the failure. In support of this contention, we are referred to the case of Houston & Texas Central Railroad v. Mayes, supra. We cannot accept it as controlling. The Texas statute there involved, like the one under investigation, required the cars to be furnished; but, unlike the one here in question, it had a proviso as follows: "That the provisions of this law shall not apply in cases of strikes or other public calamities." This provision could well bring in for application the doctrine that the exception strengthens the rule, and that the statute, by enumerating these excuses, intended to exclude all others. But the stronger reason for refusing the application of that case to this lies in fact that the Supreme Court of the United States there refused enforcement upon the ground that the requirement that cars be furnished transcended the right of the State, through its police power, to burden interstate commerce. This, it will be seen, is a reason without force as to intrastate business.

In St. Louis, I. M. & S. Ry. Co. v. Hampton, 162 F. 693, there is nothing to indicate that it was with reference to intrastate business.

Dealing as we do with intrastate business, the question becomes one to be determined by the law of the State.

Must the act be held unenforceable as a State law for the reason that it does not upon its face expressly provide for reasonable defenses to be interposed when actions may be brought under it? The whole law is...