State v. Chi., M. & St. P. Ry. Co.

• Decision Date: 29 September 1908
• Citation: 117 N.W. 686,136 Wis. 407
• Parties: STATE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

136 Wis. 407

117 N.W. 686

STATE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by the state against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action for penalty under chapter 575, p. 1188, of the Laws of 1907, for that on the 11th day of January, 1908, one McGrath was a telegraph operator in defendant's station at Milwaukee engaged in reporting and receiving orders affecting the movement of cars, engines, and trains of the defendant company, and operating signal devices; that on said day the defendant required, allowed, and permitted said McGrath to be and remain on duty for said defendant 12 consecutive hours, not by reason of any casualty upon said railroad. The answer set up numerous separate defenses, most of them attacking the validity of the state law as inimical either to the fourteenth amendment of the United States Constitution or to certain provisions of our own Constitution, and some of them asserting certain technical grounds of escape from the words of the act. By the second and fifth defenses it was set forth that the defendant's road ran through several states; that it was engaged in both interstate and intrastate business by the same employés, trains, cars, appliances, and track; that it was unavoidable that the same operator should work upon all trains passing over the same division of the road, both those whose termini were wholly within the state and those which crossed the state line; that it was wholly impossible that either class of trains should be directed or governed by a separate man; that during the excess time of employment of McGrath there was one train as to which he made reports, received orders, etc., which ran wholly within the state and carried nothing of interstate commerce, but that the great majority of trains in any way acted upon by him were interstate commerce trains; that any attempt to separate interstate from domestic commerce in the operation of trains and the regulation thereof by said operatives would result in great danger, delay, interference, and expense to the interstate commerce; that the statute in question was therefore void as restricting and regulating interstate commerce, in defiance of the Constitution of the United States, conferring upon Congress the power to regulate such commerce, and also Act Cong. March 4, 1907, c. 2939, 34 Stat. 1415 (U. S. Comp. St. Supp. 1907, p. 913), which prescribed a different and longer service for the same employés. The separate defenses of the answer were each met by a separate demurrer, except the first, which merely denied indebtedness for the penalty. The court below sustained the demurrer to all of said defenses, except the first. The defendant declining to amend, judgment was entered for the plaintiff for the sum of $1,000, with costs, from which the defendant appeals.C. H. Van Alstine, H. J. Killilea, and Burton Hanson, for appellant.

F. L. Gilbert, Atty. Gen., A. C. Titus, Asst. Atty. Gen., F. E. McGovern, Dist. Atty., and N. L. Baker, Asst. Dist. Atty., for the State.

DODGE, J. (after stating the facts as above).

The primary and most earnestly argued question is whether the act (Laws 1907, p. 1188, c. 575, § 1816m) prohibiting a corporation, operating a line of railroad in whole or in part in this state, to require or permit any (telegraph or telephone) operator (including train dispatcher) to remain on duty for more than one period of eight consecutive hours, so regulates interstate commerce intentionally or by necessary effect that it invades the power conferred upon Congress by article 1, § 8, Const. U. S., “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” that it cannot stand. That the regulation of the relation between master and servant as to acts done in interstate commerce is within the power thus conferred upon Congress is authoritatively decided by the Employer's Liability Cases, 207 U. S. 463, 494, 28 Sup. Ct. 141, 52 L. Ed. 297. It is categorically so declared in the opinion of the court, although three of the five justices who concurred in the decision withheld their assent from this proposition, which, however, received the approval of the three justices who dissented from the ultimate decision. We can discover no distinction in principle between the subject of regulationconsidered in that case, namely, the responsibility of the employer for injuries to an employé, though due to the negligence of a fellow servant, and the subject of the act under consideration, which is the prohibition of employers from imposing upon employés excessive hours of labor. Both must seek their justification for governmental action in the same principles and reasons, either in the protection of a class of employés from requirements hurtful to them, or in the protection of the welfare and safety of the public and of the commerce from dangers supposed to arise by reason of burdensome responsibilities or perils imposed upon the employés of railroads. While the thing primarily regulated is not commerce, the regulation of the conduct of the individual while engaged in carrying on that commerce so directly affects it that the latter is thereby regulated.

But the mere fact that in some degree interstate commerce is affected by the act of a state Legislature is not universally sufficient to condemn that act. The power of the state to control the conduct of individuals therein for the safety of the community is not taken away by the provision of the federal Constitution above mentioned merely because some fanciful or remote influence upon interstate commerce may result. Property may be taxed upon its value, although that value in part depends upon a franchise, or ability to use it, in interstate commerce, even though it may appear that the increased burden of taxation upon it must be paid out of the earnings of interstate commerce, and that, therefore, the charges upon such commerce will probably be increased. Dishonest practices by peddlers may be forbidden and punished by a state, notwithstanding they are practices by which some peddlers effect sales in the course of interstate commerce. Henderson B. Co. v. Kentucky, 166 U. S. 150, 17 Sup. Ct. 532, 41 L. Ed. 953. On the other hand, state legislation is prohibited which directly and intentionally controls and regulates interstate commerce, as, for example, an act which in terms regulates freight or passenger charges for interstate carriage, or which imposes a direct prohibition or charge upon the importation of property from one state into another. Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244;Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700;Covington B. Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962. Between these two extremes, however, lies a broad field for legislation claimed to be justified by necessary protection of the safety of the local community, which more or less directly obstructs, restrains, and regulates the transaction of interstate commerce--legislation not enacted for that purpose, but incidentally having the result. The Supreme Court of the United States, in Covington B. Co. v. Kentucky, supra, has classified that field into three classes of legislative acts: The first, where the states have plenary power and Congress has no right to interfere, which concern the strictly internal commerce of the state, and, while the regulation may affect interstate commerce indirectly, its bearing is so remote that it cannot be termed in any just sense interference. The second includes cases of what may be termed “concurrent jurisdiction,” where the states may act in the absence of congressional action. Obviously this field must be one where Congress has right and power to act if it sees fit, but where some restraint and regulation is necessary, and the authority therefor is deemed to be conceded to the states pending nonaction of Congress. The third is the class where, from the very intimacy with and directness of effect upon interstate commerce of any legislative action, and national scope of the subject of legislation, it is presumed that the refraining of Congress from promulgating any regulations must be considered to declare a policy that the subject shall be free from regulation.

Pretty obviously, under the decisions of the Supreme Court of the United States, the act we are considering must fall in the second class. The safety of the public may be so imperiled by the employment of incompetent or disabled persons in and about railroads, navigation, and the like that the necessity for some legislation in regard thereto is manifest, and the forbearance of Congress to legislate might well be deemed significant of its policy to leave the subject of regulation to the Legislatures of the several states. In this line it has been held that examination of pilots or railroad engineers with reference to physical capacity, especially color blindness, as a condition of their employment, is competent for a state. Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508;Nashville, etc., Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352. As pointed out in the latter case (page 101 of 128 U. S., page 29, of 9 Sup. Ct. ): “Such legislation is not directed against commerce. It only affects it incidentally.” In the former case it is suggested that acts much more intimately connected with the commerce itself would be competent, such as those requiring safeguards and signals in running trains, provision for the safety of passengers, regulating the manner of heating cars (New York, etc., Ry. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853), regulating the speed of trains (Erb v. Morasch, 177 U. S. 584, 20 Sup. Ct. 819, 44 L. Ed. 897),...