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Argument for Plaintiffs in Error.

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writing by the plaintiff under the provisions of certain statutes of Texas hereinafter referred to, for the purpose of shipping plaintiff's cattle from Llano, Texas, to Red Rock, Oklahoma, and for damages occasioned by defendant's negligence.

The petitioner alleged that the defendant company formed with two other railroad companies a continuous line from Llano to Red Rock, and were engaged as common carriers in the business of shipping live stock and other freight; that on April 9, 1903, plaintiff, being the owner of six hundred and twenty-five head of cattle, made application in writing to the local agent of the road for seventeen stock cars to be delivered on April 20, and deposited with the agent one-fourth of the freight on the same, namely, $268.82, promising to pay the remainder on demand, and that he afterwards paid the same; that upon the day named, April 20, he had cattle sufficient to load the cars, delivered them to the defendant at its stock pens at Llano for shipment, but the defendant failed to furnish the cars, and did not furnish the same until the afternoon of the twenty-first of April, 1903.

The trial resulted in a judgment in favor of the plaintiff for $425 penalty for delay, and $500 damages to the stock while in the pens at Llano. This judgment was affirmed by the Court of Civil Appeals, and an application for a writ of error to the Supreme Court of the State was overruled.

Mr. Maxwell Evarts, with whom Mr. Robert S. Lovett, Mr. James A. Baker and Mr. Gordon M. Buck, were on the brief, for plaintiffs in error:

The Texas statutes as construed by the highest courts of that State impose upon a railroad company engaged in interstate commerce the burden of furnishing, upon demand, cars for interstate transportation, in unlimited numbers, within a time arbitrarily fixed by the statutes without regard to the circumstances or facilities of the company; and upon failure, from inability or other cause, to furnish the cars within the prescribed period, the company is subjected to severe penalties for failure

201 U.S.

Argument for Plaintiffs in Error.

or mere delay in complying with the statutory requirements. This is a direct burden upon interstate commerce, and is such a regulation of commerce between the States as is vested in Congress.

The statutes should have been construed as intended to apply only to intrastate shipments, but the state courts declined to so limit them; and of course this court is bound by the interpretation of the statutes by the state court and must consider them as having been intended by the legislature to apply to interstate commerce.

The power of Congress to regulate commerce among the States is exclusive. Brown v. Maryland, 12 Wheat. 419, 446; Cook v. Pennsylvania, 97 U. S. 574. Interstate transportation is interstate commerce. State Freight Tax Case, 15 Wall. 275; United States v. Freight Association, 166 U. S. 312.

The intention of the Constitution was to confer the power to regulate interstate commerce exclusively upon Congress and not to divide the power between the state legislatures and Congress. One of the chief objects of the Constitution was to rid commerce of the conflicting, vexatious and burdensome restrictions, which, under the Articles of Confederation, had been imposed by the various States. Gibbons .v. Ogden, 9 Wheat. 1; Passenger Cases, 7 How. 383; State Freight Tax Case, 15 Wall. 279; Hall v. DeCuir, 95 U. S. 485; Wabash R. R. Co. v. Illinois, 118 U. S. 557; Pickard v. Pullman Co., 117 U.S. 34, 46; Fargo v. Michigan, 121 U. S. 238, 240; Leloup v. Mobile, 127 U. S. 640; Almy v. California, 24 How. 169; Woodruff v. Parham, 8 Wall. 123; American Express Co. v. Iowa, 196 U. S. 133.

The matter sought to be regulated is in no sense local but is national in character and importance and obviously admits of national regulation. From the first, certain state laws relating to pilotage, quarantine, etc., were sustained notwithstanding an incidental effect upon interstate and foreign commerce. Hall v. DeCuir, 95 U. S. 485, 487; Cooley v. Board of Wardens, 12 How. 299; Covington Bridge Co. v. Kentucky, 154 U.S. 204, 209. See also Wilton v. State, 91 U. S. 275; Robbins

Argument for Plaintiffs in Error.

201 U.S.

v. Shelby Tazing District, 120 U. S. 489; County of Mobile v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Brown v. Houston, 114 U. S. 622; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326; Louisville & Nashville Ry. v. Eubank, 184 U. S. 27; Illinois Central Ry. V. Illinois, 163 U. S. 142; Cleveland &c. Ry. v. Illinois, 177 U. S. 514.

If the State ever possessed such power it was only until Congress should act, and Congress having assumed it the State is no longer entitled to exercise it. Since Congress has acted and has provided a system of laws regulating railroads as instruments of interstate commerce in great detail, it has excluded the power of the States to act upon the subject. Bowman v. Chicago &c. Ry., 125 U. S. 465; Sinnot v. Davenport, 22 How. 227.

The defense of state legislation in violation of the Federal Constitution that it is within the police power is untenable in this case.

Railroad Co. v. Husen, 95 U. S. 465; License Cases, 5 How. 504, 599; Chy Lung v. Freeman, 92 U. S. 275; Robbins v. Shelby County District, 120 U. S. 489.

The Texas statutes as applied in this case plainly regulate interstate commerce and are therefore void. See Central of Georgia Ry. v. Murphy, 196 U. S. 194.

Nor can it be said, as was said by the court, in Western Union Tel. Co. v. James, 162 U. S. 650, that the statute merely provides a penalty for enforcing more completely a duty which exists at common law.

The plaintiff in error did not owe any duty to furnish cars to be carried to a destination beyond its own line, nor did it owe a duty to furnish cars at a certain hour of a certain day or otherwise than within a reasonable time.

In compelling the railroad company to furnish cars to go beyond its own line and out of its possession into a distant State, with no provision for their return or for compensation, the State deprives the railroad company of property without due process of law, contrary to the Fourteenth Amendment.

201 U.S.

Argument for Defendant in Error.

Coles v. Railroad Co. (Ga.), 45 Am. & Eng. Railroad Cases, 330; Atchison &c. Co. v. Denver &c. Co., 110 U.S. 667, 680; Gulf &c. Ry. Co. v. Miami &c. Co., 86 Fed. Rep. 419; Post v. Southern Ry. Co., 103 Tennessee, 203; Pittsburg &c. R. Co. v. Morton, 61 Indiana, 573; Chicago &c. R. R. Co. v. Chicago, 166 U. S. 226; Burlington, C. R. & N. Ry. v. Dey, 82 Iowa, 312, distinguished; see S. C., 89 Iowa, 13, at p. 25.

Mr. T. W. Gregory, for defendant in error, submitted:

The statutes complained of by plaintiffs in error, as applied to interstate shipments, do not attempt any unlawful regulation of interstate commerce, but are a proper exercise of the police power of the State and are valid.

The cattle in this case did not become the subject of interstate commerce until they were delivered to and received by the carrier for transportation on the journey. Coe v. Erroll, 116 U. S. 517; The Daniel Ball, 10 Wall. 557; Ex parte Koehler, 30 Fed. Rep. 867; In re Greene, 52 Fed. Rep. 113; Railway Co. v. Sherwood, 84 Texas, 125. By analogy to the rule announced in these cases it has been held, that a train consisting of empty freight cars being prepared and taken to a point without the State for the purpose of transporting coal within the State is not engaged in interstate commerce. Norfolk &c. R. R. Co. v. Commonwealth, 93 Virginia, 57.

The plaintiff in error was conducting its business as a common carrier in the State, subject necessarily to the condition that it would conform to such reasonable regulations as the State might from time to time establish, that were not in violation of the supreme law of the land. In the absence of legislation by Congress, it would be going very' far to hold that such an enactment as the one complained of in this case was in itself a regulation of interstate commerce. It was for the State to take into consideration all the transactions affecting freight traffic within its limits, and as far as practicable, make such regulations as were just to all who might have occasion to ship over the road. It was entitled, of course, to provide for

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the convenience of shippers desiring to have freight transported on domestic trains, and this the statutes in question undertook to do, by requiring carriers to furnish cars promptly upon proper demand. But the State was not bound to ignore the convenience of those who desired to have freight transported to points beyond the limits of the State. Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641.

These regulations ought to be regarded as rather in aid of interstate commerce and a rightful exercise of the police powers of the State. Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133; Western Union Tel. Co. v. James, 162 U. S. 650; N. Y., N. H. & H. R. Co. v. New York, 165 U. S. 628; Richmond & A. R. Co. v. Patterson Tob. Co., 169 U. S. 311; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678; M., K. & T.R. Co. v. McCann, 174 U.S. 580.

The statutes are not in violation of the Fourteenth Amendment; they do not prescribe rates or interfere in any manner with the carrier's freedom of contract.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

This case involves the constitutionality of certain articles of the Revised Statutes of Texas, set forth in the margin,' the

1 "ART. 4497. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation, to any railway company, receiver or trustee operating a line of railway at the point the cars are desired upon which to ship any freight, it shall be the duty of such railway company, receiver, trustee or other person in charge thereof, to supply the number of cars so required, at the point indicated in the application, within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the persons so applying therefor, in thorder in which such applications are made, without giving preference to any person; provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided further, that if the application be for fifty cars or more, the railway company may have ten full days in which to supply the cars. (As amended by the act of 1899, page 67.)

ART. 4498. Said application shall state the number of cars desired, the

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