Smeltzer v. St. Louis & S.F.R. Co.

Citation158 F. 649
Decision Date29 February 1908
CourtUnited States District Courts. 8th Circuit. Western District of Arkansas

Sam R Chew, for plaintiff.

B. R Davidson, for defendant.

ROGERS District Judge.

This is a motion to strike out the following paragraph of the complaint:

'And as such corporation and common carrier it became and is liable for all damages done or caused to be done to freight or property it received for transportation over its said line of railroad to points beyond and off its said line of railroad, whether such damages occurred on or off the said line of railroad.'

The language quoted is based on the last two paragraphs of section 7, of what is known as the 'Hepburn Act,' passed June 29, 1906, c. 3591, 34 Stat. 595 (U.S. Comp. St Supp. 1907, p. 909), which provide:

'That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
'That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.'

The purpose of the suit is to hold the St. Louis & San Francisco Railroad Company, as the initial carrier, for losses sustained beyond the terminus of its line, upon a bill of lading which contained a provision distinctly limiting the liability of the initial carrier for losses which occurred on its own line. Clearly the paragraph should not be struck out if the first paragraph of section 7 of the Hepburn act quoted, supra, is constitutional; for, in that event, the provision in the bill of lading limiting the defendants' liability to losses sustained on its own line must be disregarded, because against public policy; it being in conflict with the statute. Calderon v. Atlas Steamship Co., 170 U.S. 272-277, 18 Sup.Ct. 588, 42 L.Ed. 1033; The Southwark, 191 U.S. 1-17, 24 Sup.Ct. 1, 48 L.Ed. 65; McMullen v. Hoffman, 174 U.S. 648, 19 Sup.Ct. 839, 43 L.Ed. 1117.

The question is thus clearly presented whether the Congress had the power under the interstate commerce clause of the Constitution to enact the statute quoted. No tribunal can approach the consideration of that question without a full sense of its importance, both to the people and the railroads. If upheld, the limits of its far-reaching effects are scarcely to be comprehended in advance, and, of necessity, must result in a reconstruction of the methods employed in the conduct of the stupendous volume of commerce it so radically affects. It is a matter of public history, and was admitted by counsel for the defendant at the argument, that abuses have for years been practiced by those in the control and management of the great transportation business of the country. The Congress, recognizing the oppressive conditions resulting from such abuses, determined upon a course of remedial legislation, and began tentatively, step by step, to exercise its constitutional power of regulation. The questions which have grown out of this legislation were new, complex, intricate, and difficult, always bordering close by the line of constitutional power, and the decisions of the great court of last resort upon these questions have been, if not obscure, exceedingly perplexing and difficult to reconcile with each other, and the judges themselves, oftener than otherwise, have been almost equally divided upon them, and not unfrequently those concurring or dissenting have reached their conclusions upon distinctly different lines of reasoning. This was, perhaps, to be expected. As far back as Gibbons v. Ogden, 9 Wheat. 1, 236, 6 L.Ed. 23, Mr. Justice Johnson, in his separate opinion, said that:

'It would be in vain to deny the possibility of the clashing and collision between the measures of the two governments. The line cannot be drawn with sufficient distinctness between the municipal power of the one and the commercial powers of the other. In some points they meet and blend so as scarcely to admit of separation. Hitherto the only remedy has been applied which the case admits; that of a frank and candid co-operation for the general good.'

Confronted by these perplexing conditions, the question stated, involving, indirectly, at least, immense interests, has been met with that deep sense of responsibility it deserves, and has not been disposed of until it has been carefully and patiently considered. Before entering upon the consideration of the question, it is perhaps well to say that no evil results that might follow from the enforcement of any legislative act are, in any sense, a test of its constitutionality. They involve questions of expediency only, which may be properly addressed to the legislative body which enacted the statute, but are to be disregarded by the courts unless they involve the power of such body to pass the act.

The grant of the commerce power found in the Constitution is couched in these words:

'Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'

The power to enact the statute under consideration must be found, if it exists, in that language. What is the 'power to regulate commerce among the several states'? Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 196, 6 L.Ed. 23, answered the question, and the answer has always been acquiesced in by the courts to this day. He said:

'It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. * * * If, as has always been understood, the sovereignty of Congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of power as are found in the Constitution of the United States.'

This definition was accepted by that great court in a very recent case of the utmost importance. Howard v. Illinois Central Railroad Company et al., known as the 'Employer's Liability Decision' (not yet officially reported) 28 Sup.Ct. 141, 52 L.Ed. . . . . It is thus seen that there are no limitations to this commerce power except such as are found in the Constitution itself. To illustrate: This power to regulate commerce cannot be exercised so as to deprive one of his property without due process of law, because that would violate the fifth amendment to the Constitution, which provides, among other things, that no person shall be 'deprived of life, liberty, or property without due process of law. ' Again, it cannot be exercised so as to invade the reserved powers of the state, because that would violate article 10 of the Constitution, which provides that:

'The powers not delegated to the United States by the Constitution, nor inhibited by it to the states, are reserved to the states respectively, or the people.'

The recent decision upon the employer's liability act (Act July 11, 1906, c. 3073, 34 Stat. 232 (U.S. Comp. St. Supp. p. 891)), Howard v. Illinois Central R.R. co., supra, is an illustration of this. There, in legislating under the commerce power, Congress invaded the municipal powers reserved to the states; and hence the act was unconstitutional. Numerous other illustrations might be suggested, but they must find their origin always in the Constitution, and nowhere else.

In considering this statute it must be kept in mind that the rule is settled by a long and unbroken line of decisions, commencing shortly after the adoption of the Constitution, and always consistently followed, that no statute shall be declared unconstitutional except in a clear case; that every possible presumption is in favor of its validity; that if a statute is susceptible of two constructions, one of which brings it within, and the other forces it beyond, the constitutional power of Congress, the former should be adopted; and that the burden of proof is upon those who affirm the unconstitutionality of an act of Congress to show clearly that it is in violation of the Constitution. It is not sufficient for them to merely raise a doubt. Hylton v. U.S., 3 Dall. 175, 1 L.Ed. 556; Legal Tender Cases, 12 Wall. 531, 20 L.Ed. 287; The Trade-Mark Cases, 100 U.S. 96, 25 L.Ed. 550; Nicol v. Ames, 173 U.S. 514, 19 Sup.Ct. 522, 43 L.Ed. 786; Buttfield v. Stranahan, 192 U.S. 470, 24 Sup.Ct. 349, 48 L.Ed. 525; The Sinking Fund Cases, 99 U.S. 718, 25 L.Ed. 496; U.S. v. Coombs, 12 Pet. 76, 9 L.Ed. 1004. In Interstate, etc., R.R. v. Mass. (decided November 4, 1907, and not yet officially reported) 28 Sup.Ct. 26, 52 L.Ed. . . . , the court said:


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