Sunderland Bros. Co. v. Mo. Pac. Ry. Co.
| Decision Date | 14 April 1917 |
| Docket Number | No. 19285.,19285. |
| Citation | 162 N.W. 494,101 Neb. 119 |
| Parties | SUNDERLAND BROS. CO. v. MISSOURI PAC. RY. CO. |
| Court | Nebraska Supreme Court |
The provisions of the Reciprocal Demurrage Act (sections 6159-6167, Rev. St. 1913) relating to intrastate and interstate commerce are held to be separable, and the act, as applied to commerce within the state, is held not to violate the Constitution of the United States or the Constitution of the state of Nebraska.
Section 6162, Rev. St. 1913, construed, and held, that the duty of a railway company to make prompt delivery of cars is not ended when the cars are placed upon a “hold track” to await orders from the consignor or consignee, but the running of the time allowed by such section for delivery is only suspended while cars are so held.
The finding of the district court on the evidence is of the same weight as the verdict of a jury and will not be set aside unless clearly wrong.
Appeal from District Court, Douglas County; Sears, Judge.
Action by the Sunderland Brothers Company against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. C. Kennedy, of Omaha, B. P. Waggener, of Atchison, Kan., and Guy C. Kiddoo, of Omaha, for appellant.
Baldrige, Keller & Keller, of Omaha, for appellee.
This action is brought to recover damages under certain provisions of sections 6159-6167, Rev. St. 1913 (known as the “Reciprocal Demurrage Act”), which require freight to be moved not less than 50 miles in 24 hours under liability for damages of $1 per car, unless prevented by a large number of contingencies which are matters of defense, and which impose damages of $1 for each day cars are delayed in delivery. Plaintiff is a dealer in building materials at Omaha. The defendant is a common carrier operating an interstate railroad. The petition alleges that at certain specified times from July, 1909, to December, 1912, building material in carload lots was delivered at Louisville, Neb., with instructions to ship to points within the state over the defendant road; that bills of lading were issued for each shipment; that defendant failed to transport the shipment within the time provided by law. It is also alleged that the defendant failed to place loaded cars at a place accessible for unloading within the time required by law, and that the plaintiff had presented its claim for damages more than 60 days prior to the commencement of the suit. In answer, defendant alleges that the statute prescribing a time limit for the movement of freight is in violation of the Constitution of the United States and the Constitution of the state of Nebraska; that, since Congress has asserted its authority over interstate commerce, all regulations of the state of Nebraska affecting the carriage of goods by railroads and common carriers between states, have been superseded; and that the trains and cars referred to in the petition were engaged in interstate commerce. As to the complaint of delay in placing the cars for unloading, the answer alleges that the plaintiff has three yards in Omaha in different sections of the city, and that at plaintiff's request the cars were not placed upon the public delivery track, but for the accommodation of plaintiff were placed upon a “hold track” of defendant to await plaintiff's order for delivery to its several yards. A jury was waived and trial had to the court, which found that the statute was constitutional; that the defendant made 295 days' delay in the shipments, and 345 days' delay in the placing of cars after arrival. Judgment was rendered for $640 and an attorney's fee of $250.
[1] The first complaint is that the statute violates both the Constitution of the state and of the United States, because it is an interference with and burden upon interstate commerce; that its provisions are so intermingled as to intrastate and interstate commerce that they are inseparable and the whole act must fail.
The superintendent of the western district of defendant and other operating officials testified that the average time of movement of freight cars on main lines in the United States generally is 2 hours and 24 minutes in each 24 hours; on defendant's road the average distance traveled by each freight car is slightly over 24 miles every 24 hours, which is slightly above the average of other roads throughout the United States; that traffic wholly within Nebraska might be moved at the statutory rate, but that to do so would retard interstate traffic to the extent that state business was advanced; that in practical operation interstate and intrastate traffic must move together; that freight of both characters is often loaded in the same car, and they can no more be separated than you can separate state and interstate passengers and operate separate passenger trains for them; that it is impracticable and perhaps impossible to move freight in Nebraska 50 miles per day of 24 hours. This testimony was largely matter of opinion, and upon cross-examination it was admitted that it is not impracticable to move cars from Louisville to Omaha in 24 hours.
Is the statute constitutional? It applies to “every railroad company operating a line of railroad wholly or in part within this state.” In one section it requires “the conductor of every train bringing freight in carload lots into this state from any other state to note on the original waybill of each and every carload of such freight, destined to points within this state, the year, month, day of the month, and hour of the day, on which such carload of freight entered this state, and to authenticate the same by his signature.” It provides a time for the removal of freight in bond after permit to receive the freight is issued to the consignee by the United States collector of customs; and, considered as a whole, it evidences an intention to regulate all traffic. So far as the act attempts to regulate commerce between the states, it is of no force or effect, since Congress has acted upon the subject, and, when Congress has acted, the power of the state ceases. Southern R. Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257;Chicago, R. I. & P. R. Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 33 Sup. Ct. Rep. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203. The defendant insists that, since the act is invalid as respects interstate commerce, it is equally invalid as to commerce within the state. This is not a necessary conclusion. If the provisions of the act relating to interstate commerce can be disregarded and still leave a valid workable law, we see no reason why the act cannot be upheld so far as it applies to commerce within the state. It is true that some courts have held in somewhat similar circumstances that such a law will not permit a separation or division and the whole act must fail, but other courts take the view that, though a statute of this nature may be void and inoperative as a regulation of interstate commerce, it may be valid and enforceable with reference to transportation within the state. In Commonwealth v. Gagne, 153 Mass. 205, 26 N. E. 449, 10 L. R. A. 442, it is said:
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