A provision in a state statute that interstate railroads shall
furnish cars for interstate shipments which regulates the
furnishing of cars is invalid by reason of the Hepburn Act, but if
it only means that there shall be no discrimination against
interstate shipments, it might not invalidate an act, otherwise
valid, as to intrastate shipments.
The fact that an act requiring railroads to furnish cars
includes no exceptions is not conclusive of its meaning and intent,
and an act cannot be construed as not permitting any exceptions
where, as in this case, the state court has held that the penalties
are enforceable only in an action at law, and that, as such a
provision is declaratory of the common law, any reasonable excuse
may be interposed.
This Court will not entertain a case where the party setting up
the unconstitutionality of a statute does not belong to the class
for whose sake the constitutional protection is given or to the
class primarily affected, nor will it at the instance of a party
not belonging to a class affected, go into an imaginary case on the
ground that the law, if unconstitutional as to one, is so as to
all.
Hatch v. Reardon, 204 U. S. 152.
Where there was an agreement of the parties to confine the case
wholly to the question of constitutionality of the statute
attacked, and complainant does not show that his rights protected
under the Constitution have actually been invaded, but the
objections suggested are conjectural, the bill should be dismissed,
and so
held as to an action brought to test the
constitutionality under the commerce clause of a statute of
Arkansas requiring railroads to promptly furnish cars.
162 F. 693 reversed.
This bill was filed for the purpose of enjoining the bringing of
actions in the state courts, in the name of the state, to recover
penalties declared by the Railroad Commission
Page 227 U. S. 457
of the state for the violation of a statute requiring railroads
to furnish cars upon the application of shippers, and forbidding
discrimination between shippers in furnishing such cars.
The facts necessary to be stated are these:
Upon a complaint duly filed, and after a full hearing, the
Railroad Commission of the state found that the railroad company
had, during every day between September 20th and September 30th,
1907, inclusive, refused to furnish cars upon statutory notice and
request of the operators of several coal companies operating along
the line of its railroad in the State of Arkansas, and had also,
during the same period, discriminated in favor of a coal company
which it controlled by furnishing it with an adequate supply of
cars, although part of the coal so carried was for sale upon the
market. The requests for cars so refused were for shipments from
the mines within the state to destinations in the same state, and
were not for the purpose of interstate transportation.
The bill charged that the Railroad Commission was about to
transmit a transcript of its proceedings to the several state
prosecuting attorneys in counties where the railroad was situated,
with an order that action should be brought in the name of the
state for the enforcement of the penalties, as provided by
§§ 11 and 18 of an Act of the Arkansas Legislature of
March 11, 1899 (Act 53, Laws of 1899, pp. 82, 89, 93), being §
6804, Kirby's Digest.
The bill alleges that, although engaged in operating a railroad
within the State of Arkansas, the company's lines extended into
adjacent states, and that it is therefore an interstate carrier,
subject to the Act of Congress of February 4, 1887, and its
amendments. It charges that, by an Act of the Legislature of the
State of Arkansas passed April 19, 1907 (Act 192, Acts of 1907, p.
453), the Railroad Commission of the state is vested with authority
to regulate railroads within the state in respect to the duty
of
Page 227 U. S. 458
furnishing cars to shippers, and that it has, under that
authority, promulgated order No. 346, which follows in phraseology
the provisions of § 1 of the act referred to. It is then
contended that this Act of April 19, 1907, and the order of the
Commission in pursuance of said first section, constitute an
exertion of the power of the state over interstate commerce, and as
such are invalid. It was averred that, if the bringing of the
threatened suits was not enjoined, complainant would be subjected
to a multitude of actions and to a liability for the excessive
penalties imposed by the eighteenth section of the Act of 1899,
being a minimum of not less than $500 for each offense, and a
maximum of as much as $3,000.
The bill denied any liability under the act, even if valid, and
presented various reasons why it had not supplied the cars
requested.
Answer was filed and issue taken upon every material defense set
up upon the merits. The cause was heard upon bill and answer, there
being no evidence upon the matters of defense touching the merits
of the case.
The circuit court held the entire Act of April 19, 1907 to be
null and void as an invalid invasion of the field of interstate
commerce, and accordingly enjoined its enforcement and the bringing
of the actions which the Commission had ordered.
Page 227 U. S. 462
MR. JUSTICE LURTON, after making the above statement, delivered
the opinion of the Court.
The single purpose of this case is to prevent the bringing of
actions at law in the name of the state, and by order of the State
Railroad Commission, to recover penalties prescribed by the
Arkansas act of March 11, 1899, §§ 11 and 18, for the
violation of the provisions of § 11 of the act referred to,
and of § 1 of the Act of April 19, 1907. The case turned below
upon the single question of the constitutionality of the Act of
April 19, 1907, being an act entitled, "An Act to Regulate Freight
Transportation by Railroad Companies Doing Business in the
Arkansas." The only parts of that act here in any way involved are
the first paragraph of the first section, and the last clause in
the seventeenth section. The paragraph of the first section is the
legislative authority under which the Commission finds power to
make its order No. 346, concerning the duty of carriers to furnish
cars upon the demand of shippers, its said order being in the very
words of that paragraph, as follows:
Page 227 U. S. 463
"That when a shipper makes a written application to the station
agent of a railroad company for a car or cars, to be loaded with
any kind of freight embraced in the tariff of said company, stating
in said application the character of the freight, and its final
destination, the railroad company shall furnish same at the place
of shipment within six days from 7 o'clock A.M. the day following
such application."
The clause concluding the seventeenth section of the act is in
these words:
"Interstate railroads shall furnish cars on application for
interstate shipments, the same in all respects as other cars to be
furnished by intrastate railroads under the provisions of this
act."
The order of the Commission directed the bringing of actions
against the appellee for the willful violation of the provisions of
§ 1, set out above, and also for an illegal discrimination
under § 11 of the Act of March 11, 1899, referred to above.
That section forbids any discrimination or preference in furnishing
cars, and requires equal facilities to all under like circumstances
and conditions.
By agreement of the parties, recited in the decree below and
repeated in the memorandum opinion filed by the circuit judge,
every question was eliminated from the case except the
constitutionality of the Act of 1907. The issue for our
consideration by this action of the parties is very succinctly
stated by Judge Treiber, who presided in the circuit court, in
these words:
"In the argument, counsel agreed that the only question
necessary for a final determination of this cause is the
constitutionality of the Act of the General Assembly of the State
of Arkansas, No.193, approved April 19th, 1907, entitled, 'An Act
to Regulate Freight Transportation by Railroad Companies Doing
Business in the Arkansas,' . . . and, if unconstitutional, that the
injunction may be made perpetual. "
Page 227 U. S. 464
The court then adds:
"The court holds that the act is unconstitutional upon two
grounds: 1. By the last sentence of § 17, it is clearly shown
that the intention of the legislature was to apply its provisions
to interstate shipments as fully as to intrastate shipments, and
there is nothing in the act to indicate that the act would have
been passed unless it could thus be made applicable. This is
clearly an interference with interstate commerce, and as this
provision cannot be disregarded without defeating one of the main
objects of the act, it is unconstitutional. 2. The requirement to
furnish the cars is absolute, and makes no exceptions for cases of
a sudden congestion of traffic, actual inability to furnish cars by
reason of their temporary detention in other states or in other
places within the same state; none for interference of traffic,
occasioned by wrecks, accidents, or strikes.
Houston &c. R.
Co. v. Mayes, 201 U. S. 321, is
conclusive."
"For these reasons, the temporary injunction heretofore granted
will be made perpetual as to proceedings by defendants under the
Act of April 19th, 1907, but the injunction is not to apply to any
acts by defendants under any other statutes of the state. Let there
be a decree accordingly."
Neither have counsel for appellee in this Court presented any
question other than that of the unconstitutionality of the Act of
1907. We shall therefore, for the purposes of this case, assume
that the railroad company did fail and refuse to furnish cars as
requested, and that it also favored a coal company in which it was
interested, and that it rests its defense upon the invalidity of
the Act of 1907.
The attack upon that act turned upon two propositions.
a. That the clause of the seventeenth section, set out above,
manifests an intention that the act shall apply as well to
interstate shipments as to intrastate shipments, and that this
purpose invalidates the whole act, as there
Page 227 U. S. 465
is nothing to justify the court in saying that the valid parts
of the act would have been passed without the invalid parts.
b. That the requirement to furnish cars, found in the first
section, is absolute, and that no excuse arising from the detention
of the company's cars upon other and connecting lines of railroad
in and out of the state, nor for delays due to sudden emergencies,
unusual congestion of traffic, catastrophes, or other unavoidable
and unusual conditions without fault, is a defense against the
penalty imposed for failure to supply cars as required.
Coming first to the clause in the seventeenth section, which the
court below held invalidated the whole act:
That clause probably means no more than that there shall be no
discrimination against demands for cars for interstate shipments.
If, however, it be construed as extending the act so as to regulate
the furnishing of cars for interstate shipments, it would be
invalid by reason of the provisions of the Hepburn Amendment to the
Act to Regulate Commerce of June 29, 1906.
Chicago, R.I. &
P. R. Co. v. Hardwick Elevator Co., 226 U.
S. 426.
The effect of this upon the remainder of the act has not been
considered in the briefs of appellee further than to say that, in
Oliver v. Chicago, R.I. & P. R. Co., 89 Ark. 466,
decided pending this appeal, the supreme court of the state has
held the act valid as including an elaborate and workable scheme
for the regulation of intrastate railroad traffic, irrespective of
the invalidity of the clause referred to. We shall therefore assume
the remainder of the act to be valid, although the clause in
question be regarded as invalid.
Neither is the requirement of the act as to the duty of
furnishing cars absolute, as held by the court below. That the act
upon its face includes no exceptions or excuses is not conclusive
of its meaning and intent. The case of
Houston & T.C. R.
Co. v. Mayes, 201 U. S. 321, is
not
Page 227 U. S. 466
controlling. The dereliction there involved was in the failure
to furnish cars for an interstate shipment, under a Texas statute
which required the carrier to furnish cars upon six days' notice,
with a provision that the law should not "apply in cases of strikes
or other calamity." This Court concluded that the inclusion of a
particular exception excluded all others, and that an absolute
requirement that a railroad shall furnish a certain number of cars
at a specific day, regardless of every other consideration "except
strikes and other public calamities," amounted to a burden upon
interstate commerce. The Court added:
"It makes no exception in cases of a sudden congestion of
traffic, an actual inability to furnish cars by reason of their
temporary and unavoidable detention in other states, or in other
places within the same state,"
etc.
But the penalties imposed by the act here involved are
enforceable only in an action at law, and in such an action the
supreme court of the state has held that such a statutory provision
is but declarative of the common law, and that any reasonable
excuse for a failure to furnish cars upon the requirement of a
shipper may be interposed.
St. Louis S.W. Railway v. Clay
County Gin Co., 77 Ark. 357;
St. Louis S.W. R. Co. v.
State, 85 Ark. 311;
Oliver v. Railroad, 89 Ark. 466.
In the case last cited, the Arkansas court said of this provision
of the Act of 1907, that
"[t]he failure to furnish cars under the terms of the act under
investigation will establish
prima facie a breach of duty
on the part of the railroad companies. This will not preclude their
right to set up such defense as will excuse or justify the failure.
That a fair division of cars with interstate business made it
impossible to answer all demands made for cars for intrastate
business would apparently be within the limit of proper defenses in
cases of demands too unusual to be foreseen, and, viewed in
this
Page 227 U. S. 467
way, the act is relieved of the imputation of burdening
interstate commerce."
In the case of
Railroad v. State, cited above, the
excuse for failure to furnish cars upon the requirement of a
shipper was that it was unable to do so because, while its car
equipment was ample for all the demands of its traffic, it had, at
the time when it made default, lost control of a majority of its
cars through the fact that they had been sent beyond its own line
in interstate commerce, and it had been unable to secure their
prompt return through the inefficiency of the rules and regulations
of the American Railway Association, of which it was a member.
Although it appeared that ninety percent of all the railroad
companies in the United States were members of that association and
permitted interchange of cars with connecting railroads, and the
company was powerless to correct the rules and regulations of that
association or supervise their enforcement, the Arkansas court held
that the detention of its cars upon other lines of railroad in the
course of its interstate business afforded no reason for its
failure to supply cars in the particular case under consideration.
The case was reversed by this Court,
217 U. S. 217 U.S.
136, when the Court, among other things, said:
"As the penalty, which the court sustained, was enforced solely
because of its conclusion as to the inefficiency of the rules and
regulations of the American Railway Association, which governed
ninety percent of the railroads in the United States, the court was
evidently not unmindful that the carrier before it was powerless of
its own motion to change the rules thus generally prevailing, and
therefore was necessarily either compelled to desist from the
interchange of cars with connecting carriers for the purpose of the
movement of interstate commerce or to conduct such business with
the certainty of being subjected to the penalties which the state
statute provided for. "
Page 227 U. S. 468
And the court further said (p.
217 U. S.
149):
"That the ruling of the court below involved necessarily the
assertion of power in the state to absolutely forbid the
efficacious carrying on of interstate commerce, or, what is
equivalent thereto, to cause the right to efficiently conduct such
commerce to depend upon the willingness of the company to be
subjected to enormous pecuniary penalties as a condition of the
exercise of the right."
The cases referred to make it clear that the statutory duty of
furnishing cars upon the reasonable notice of a shipper is not
absolute, and that the legislature did not intend to impose upon
railroad companies the duty of furnishing cars to a particular
shipper, regardless of its equal duty to other shippers, state and
interstate, or to a situation due to some unusual and unavoidable
condition which made it unreasonable that it should be penalized
for noncompliance, and also that, if, in the administration of the
statute, a ruling is made by the state court in respect to an
excuse for noncompliance which operates as a restraint upon
interstate commerce, a federal question arises which may be
reviewed by this Court.
The conclusion we reach is that the railroad company, as the
case is presented by the pleadings, the agreement of the parties,
and the ruling of the court below, is making an effort to test the
constitutionality of the Act of 1907 without showing that, in the
operation of the act, interstate commerce has been illegally
restrained or burdened, or that any defense which it may have for
the neglect to comply with the provisions of the act as to
furnishing cars has been or will be denied by virtue of its
obligation as an interstate railroad. The objections which are
suggested in the bill are conjectural and academic. The excuse made
by the bill for its refusal to furnish the cars requested and for
its illegal discrimination were put in issue by the answer and not
proved. In
Hatch v. Reardon, 204 U.
S. 152,
204 U. S. 160,
it is said:
Page 227 U. S. 469
"That, unless the party setting up the unconstitutionality of
the state law belongs to the class for whose sake the
constitutional protection is given, or the class primarily
protected, this Court does not listen to his objections, and will
not go into imaginary cases, notwithstanding the seeming logic of
the position that it must do so, because if, for any reason, or as
against any class embraced, the law is unconstitutional, it is void
as to all.
Supervisors v. Stanley, 105 U. S.
305,
105 U. S. 311;
Clark v.
Kansas City, 176 U. S. 114,
176 U. S.
118;
Lampasas v. Bell, 180 U. S.
276,
180 U. S. 283-284;
Cronin v. Adams, 192 U. S. 108,
192 U. S.
114. If the law is valid when confined to the class of
the party before the court, it may be more or less of a speculation
to inquire what exceptions the state court may read into general
words, or how far it may sustain an act that partially fails."
This principle has been applied in many cases, among them:
Turpin v. Lemon, 187 U. S. 51,
187 U. S. 60;
The Winnebago, 205 U. S. 354,
205 U. S. 360;
Citizens Bank v. Kentucky, 217
U. S. 453;
Southern Railway v. King,
217 U. S. 524,
217 U. S. 534;
Rosenthal v. New York, 226 U. S. 260,
226 U. S.
271.
The result is that the decree must be reversed and the case
remanded, with direction to dismiss the bill.
