Southern Ry. Co v. Melton.&dagger

• Decision Date: 25 September 1909
• Citation: Southern Ry. Co v. Melton.&dagger, 65 S.E. 665, 133 Ga. 277 (Ga. 1909)
• Parties: SOUTHERN RY. CO. v. MELTON.&dagger
• Court: Georgia Supreme Court

65 S.E. 665

133 Ga. 277

SOUTHERN RY. CO.

v.MELTON.†

Supreme Court of Georgia.

Sept. 25, 1909.

1.Constitutional Law (§ 62^*)—Delegation op Legislative Powee—Rules of Railroad Commission.

Rule 9 of the Railroad Commission of Georgia, adopted under authority of the act of 1905(Acts 1905, p. 120), is as follows: "Railroad companies are required to furnish cars promptly on request therefor.When a shipper files with a railroad company written application for a car or cars, stating therein the character of the freight to be shipped, and its destination, such railroad company shall furnish same within four days (Sundays and legal holidays excepted) from seven o'clock a. m. of the day following the receipt of such application.For a violation of this rule the railroad company at fault shall, within thirty days after demand in writing is made therefor pay to the shipper so offended the sum of one dollar per car per day or fraction of a day after the expiration of free time, during which such violation continues."Held, that such rule of the commission, made under authority of the act of 1905, is not unconstitutional and void on the ground that its adoption by the commission was an attempt on the part of that body to legislate, and was the exercise of a power which the Legislature could not delegate to the commission and the commission could not exercise, under the constitutional provision that "the legislative power of the state shall be vested in a general assembly, which shall consist of a Senate and a House of Representatives."Const, art. 3, § 1, par. 1.Fish, C. J., dissenting.

[Ed. Note.—For other cases, seeConstitutional Law, Cent. Dig. § 100;Dec. Dig. § 62.*]

2.Carriers (§ 10*)—Railroad Commission-Rules—Power to Adopt.

The act of 1905 expressly conferred upon the Railroad Commission the power to adopt the rule above quoted, and such rule was not invalid on the ground that the commission had no authority to make it.

[Ed. Note.—For other cases, seeCarriers, Dec. Dig. § 10.*]

3.Statutes(§ 113*)—Expression op Subject in Title.

The act of 1905 was not unconstitutional and void on the ground that the title was not sufficient to include the conferring of power in the body of the act upon the Railroad Commission to impose "penalties, " or on the ground that the title did not cover the provision in the body of the act making regulations as to the placing of cars.

[Ed. Note.—For other cases, seeStatutes, Cent. Dig. §§ 124, 141-144;Dec. Dig. § 113.*]

4.Commerce (§ 61*)—Interstate—Imposing Burden On.

The requirement of furnishing cars for intrastate shipment, made by the rule of the Railroad Commission quoted in the first headnote, is not void as imposing a burden upon interstate commerce.

[Ed. Note.—For other cases, seeCommerce, Cent. Dig. §§ 81-84;Dec. Dig. § 61.*]

5.Carriers§ 2*) — Penalties — Recovery — Repeal of Act.

The repeal of sections 3and4 of the act of 1905 by the act of 1907(Acts 1907, p. 72) did not repeal the entire act of 1905 so as to render unenforceable amounts which had accrued under it and the rule of the commission passed pursuant to it in favor of a shipper prior to the approval of the act of 1907, but which had not been presented to the Railroad Commis sion in accordance with section 3 of the act of 1905.

[Ed. Note.—For other cases, seeCarriers, Dec. Dig. § 2.*]

(Syllabus by the Court.)

6.Words and Phrases—"Penal Law."

Penal laws strictly and properly are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon.

[Ed. Note.—For other definitions, seeWords and Phrases, vol. 6, pp. 5269-5271.]

7.Shipping (§ 170*)—"Demurrage."

Every improper detention of a vessel may be considered a demurrage and compensation in that way may be obtained for it (citing Words and Phrases, vol. 2, p. 1981).

[Ed. Note.—For other cases, seeShipping, Cent. Dig. § 565;Dec. Dig. § 170.*]

Certified from Court of Appeals.

Certified questions in an action by the Southern Railway Company against C. W. Melton from the Court of Appeals to the Supreme Court.Questions answered.

The Court of Appeals certified to the Supreme Court the following questions:

"(1) Is rule 9 of the Railroad Commission of Georgia, as follows: 'Railroad companies are required to furnish cars promptly on request therefor.When a shipper files with a railroad company written application for a car or cars, stating therein the character of the freight to be shipped, and its destination, such railroad company shall furnish same within four days (Sundays and legal holidays excepted) from seven o'clock a. m. of the day following the receipt of such application.For a violation of this rule the railroad company at fault shall within thirty days after demand in writing is made therefor, pay to the shipper so offended the sum of one dollar per car per day, or fraction of a day, after the expiration of free time, during which such violation continues'—unconstitutional and void upon any of the following grounds, to wit: Because it is repugnant to article 3, 8 1, par. 1 (Civ. Code 1895, § 5744), of the Constitution of the state of Georgia, as follows: 'The legislative power of the state shall be vested in a general assembly, which shall consist of a Senate and House of Representatives.'Because the prescribing of the penalties therein referred to by the Railroad Commission of Georgia was an attempt on the part of said body to legislate and was a power which the Legislature of Georgia could not delegate to said commission and which said commission could not exercise, or because the enactment of penalties is a legislative function vested exclusively in the General Assembly?

"(2) Is the rule of the Railroad Commission quoted in the foregoing question invalid on the ground that said Railroad Commission of Georgia had no power or authority to pass said rule, or that same was passed by said commission without express power?

"(3) Is the act of the General Assembly approved August 23, 1905(Georgia Laws 1905, p. 120), void and unconstitutional as being contrary to article 3, § 7, par. 8 (Civ. Code, § 5771), as follows: 'No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof—in that the body of the act purports to confer power upon the Railroad Commission to impose penalties, and the title of said act makes no reference to that subject, or in that the body of the act makes regulations as to the placing of cars, and no reference to that subject appears in the title of the act?

"(4) Does the above-quoted rule of the Railroad Commission requiring the furnishing of cars for intrastate shipments impose a burden upon interstate commerce, for the reason that it has the effect of withdrawing equipments necessary to take care of the company's interstate business, and is therefore void as being violative of article 1, section 8, paragraph 3, of the Constitution of the United States, which confers upon Congress the power 'to regulate commerce with foreign nations and among the several states and with the Indian tribes.'Also, is it violative of the foregoing provision of the federal Constitution, because it embraces within its terms all cars, whether intended for interstate shipments or intrastate shipments, and thereby imposes a burden on interstate commerce, and is it therefore void as applied to a proposed shipment to be made wholly within this state?

"(5) Was the act of the General Assembly approved August 23, 1905(Georgia Laws 1905, p. 120), and sections 3and4 of said act which prescribes certain penalties, so far repealed by the act of the Legislature of Georgia, approved August 23, 1907(LawsGa.1907, p. 72), as to render unenforceable penalties which accrued to a shipper under the above-quoted rule of the Railroad Commission prior to August 23, 1907, but which had not been presented to the Railroad Commission in accordance with section 3 of the act of August 23, 1905, until August 24, 1907?"

The act of 1905(Acts 1905, p. 120), which it is claimed conferred the power upon the Railroad Commission to adopt the rule in question, has the following caption: "An act to further extend the powers of the Railroad Commission of this state, and to confer upon the commission the power to regulate the time and manner in which the several railroads in this state shall receive, receipt for, forward and deliver to its destination ail freights of every character, which may be tendered or received by them for transportation; to provide a penalty for noncompliance with any and all reasonable rules, regulations, and orders prescribed by the said commission in the execution of these powers, and for other purposes."The first section of the act is as follows: "That from and after the passage of this act, the Railroad Commission of this state shall be, and is, hereby, vested with full power and authority to make, prescribe, and enforce all such reasonable rules, regulations, and orders as may be necessary in order to compel and require the several railroad companies in this state to promptly receive, receipt for, forward and deliver to destination all freights of every character which may be tendered or received by them for transportation; and as well such reasonable rules, regulations, and orders as may be necessary to compel and require prompt delivery of all freights, on arrival at destination, to the consignee."The second section provides: "That whenever a shipper or consignor shall require of a railroad company the placing of a car or cars to be used in car load shipments, then, in order for the consignor or shipper to avail himself of the forfeitures or penalties prescribed by the rules and regulations of said Railroad Commission, it must first appear that such shipper or consignor made written application for said car or cars to said railroad; provided further,...