Hampton v. St. Louis, IM & SR Co., 227 U.S. 456 (1913)
Content
227 U.S. 456
33 S.Ct. 263
57 L.Ed. 596
JOHN E. HAMPTON et al., Appts.,
v.
ST. LOUIS, IRON MOUNTAIN, & SOUTHERN
RAILWAY COMPANY.
No. 3.
Argued and submitted October 29 and 30, 1912.
Decided February 24, 1913.
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 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, 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 [24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. Supp.
1911, p. 1284], and its amendments. It charges that by an act of the
legislature of the state of Arkansas passed April 19, 1907, the railroad
commission of the state is vested with authority to regulate railroads
within the state, in respect to the duty of 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 1st 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 18th 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.
Mr. Hal L. Norwood, Attorney General of Arkansas, and Mr. Morris M.
Cohn for appellants.
[Argument of Counsel from pages 458-461 intentionally omitted]
Messrs. Lovick P. Miles and Martin L. Clardy for appellee.
[Argument of Counsel from page 461 intentionally omitted]
Mr. Justice Lurton, after making the above statement, delivered the
opinion of the court:
1
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
State of Arkansas.' The only parts of that act here in any way involved are the
first paragraph of the 1st section, and the last clause in the 17th section. The
paragraph of the 1st 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: '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.'
2
The clause concluding the 17th section of the act is in these words:
3
'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.' [Acts 1907, pp. 454, 463.]
4
The order of the commission directed the bringing of actions against the
appellee for the wilful 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.
5
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:
6
'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 State of Arkansas,' . . . and, if unconstitutional, that the
injunction may be made perpetual.' The court then adds:
7
'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 & T. C. R. Co. v. Mayes, 201 U. S. 321, 50 L. ed. 772, 26
Sup. Ct. Rep. 491, is conclusive.
8
'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.' [162 Fed. 694.]
9
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.
10
The attack upon that act turned upon two propositions.
11
a. That the clause of the 17th 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 is nothing to justify the
court in saying that the valid parts of the act would have been passed without
the invalid parts.
12
b. That the requirement to furnish cars, found in the 1st 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.
13
Coming first to the clause in the 17th section, which the court below held
invalidated the whole act:
14
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 [34 Stat. at L.
584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288]. Chicago, R. I. & P. R.
Co. v. Hardwick Farmers' Elevator Co. 226 U. S. 426, 57 L. ed. ——, 33 Sup.
Ct. Rep. 174.
15
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, 117 S. W. 238, 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.
16
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, 50 L. ed. 772, 26 Sup. Ct. Rep. 491, is not
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.
17
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 Southwestern R. Co. v. Clay County Gin Co. 77
Ark. 357, 92 S. W. 531; St. Louis Southwestern R. Co. v. State, 85 Ark. 311,
122 Am. St. Rep. 33, 107 S. W. 1180; Oliver v. Chicago, R. I. & P. R. Co. 89
Ark. 466, 470, 117 S. W. 238. In the case last cited the Arkansas court said of
this provision of the act of 1907, that 'the 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 way, the act is
relieved of the imputation of burdening interstate commerce.'
18
In the case of St. Louis Southwestern R. Co. 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 90 per cent 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. 136, 147, 54 L.
ed. 698, 704, 29 L.R.A.(N.S.) 802, 30 Sup. Ct. Rep. 476), when the court,
among other things, said:
19
'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 90 per cent of the railroads in the United
States, the court was evidently not numindful 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.' And the court further said:
20
'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.'
21
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.
22
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 New
York ex rel. Hatch v. Reardon, 204 U. S. 152, 160, 51 L. ed. 415, 422, 27 Sup.
Ct. Rep. 188, 9 Ann. Cas. 736, it is said: '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. Albany County v. Stanley, 105 U. S. 305, 311, 26 L. ed. 1044,
1049; Clark v. Kansas City, 176 U. S. 114, 118, 44 L. ed. 392, 396, 20 Sup. Ct.
Rep. 284; Lampasas v. Bell, 180 U. S. 276, 283, 284, 45 L. ed. 527, 530, 531,
21 Sup. Ct. Rep. 368; Cronin v. Adams, 192 U. S. 108, 114, 48 L. ed. 365, 368,
24 Sup. Ct. Rep. 219. 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.'
23
This principle has been applied in many cases, among them: Turpin v. Lemon,
187 U. S. 51, 60, 47 L. ed. 70, 74, 23 Sup. Ct. Rep. 20; The Winnebago, 205 U.
S. 354, 360, 51 L. ed. 836, 839, 27 Sup. Ct. Rep. 509; Citizens' Nat. Bank v.
Kentucky, 217 U. S. 453, 54 L. ed. 836, 30 Sup. Ct. Rep. 532; Southern R. Co.
v. King, 217 U. S. 524, 534, 54 L. ed. 868, 871, 30 Sup. Ct. Rep. 594;
Rosenthal v. New York, 226 U. S. 260, 271, 57 L. ed. ——, 33 Sup. Ct. Rep.
27.
24
The result is that the decree must be reversed and the case remanded, with
direction to dismiss the bill.
33 S.Ct. 263
57 L.Ed. 596
JOHN E. HAMPTON et al., Appts.,
v.
ST. LOUIS, IRON MOUNTAIN, & SOUTHERN
RAILWAY COMPANY.
No. 3.
Argued and submitted October 29 and 30, 1912.
Decided February 24, 1913.
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 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, 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 [24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. Supp.
1911, p. 1284], and its amendments. It charges that by an act of the
legislature of the state of Arkansas passed April 19, 1907, the railroad
commission of the state is vested with authority to regulate railroads
within the state, in respect to the duty of 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 1st 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 18th 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.
Mr. Hal L. Norwood, Attorney General of Arkansas, and Mr. Morris M.
Cohn for appellants.
[Argument of Counsel from pages 458-461 intentionally omitted]
Messrs. Lovick P. Miles and Martin L. Clardy for appellee.
[Argument of Counsel from page 461 intentionally omitted]
Mr. Justice Lurton, after making the above statement, delivered the
opinion of the court:
1
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
State of Arkansas.' The only parts of that act here in any way involved are the
first paragraph of the 1st section, and the last clause in the 17th section. The
paragraph of the 1st 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: '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.'
2
The clause concluding the 17th section of the act is in these words:
3
'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.' [Acts 1907, pp. 454, 463.]
4
The order of the commission directed the bringing of actions against the
appellee for the wilful 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.
5
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:
6
'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 State of Arkansas,' . . . and, if unconstitutional, that the
injunction may be made perpetual.' The court then adds:
7
'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 & T. C. R. Co. v. Mayes, 201 U. S. 321, 50 L. ed. 772, 26
Sup. Ct. Rep. 491, is conclusive.
8
'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.' [162 Fed. 694.]
9
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.
10
The attack upon that act turned upon two propositions.
11
a. That the clause of the 17th 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 is nothing to justify the
court in saying that the valid parts of the act would have been passed without
the invalid parts.
12
b. That the requirement to furnish cars, found in the 1st 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.
13
Coming first to the clause in the 17th section, which the court below held
invalidated the whole act:
14
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 [34 Stat. at L.
584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288]. Chicago, R. I. & P. R.
Co. v. Hardwick Farmers' Elevator Co. 226 U. S. 426, 57 L. ed. ——, 33 Sup.
Ct. Rep. 174.
15
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, 117 S. W. 238, 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.
16
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, 50 L. ed. 772, 26 Sup. Ct. Rep. 491, is not
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.
17
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 Southwestern R. Co. v. Clay County Gin Co. 77
Ark. 357, 92 S. W. 531; St. Louis Southwestern R. Co. v. State, 85 Ark. 311,
122 Am. St. Rep. 33, 107 S. W. 1180; Oliver v. Chicago, R. I. & P. R. Co. 89
Ark. 466, 470, 117 S. W. 238. In the case last cited the Arkansas court said of
this provision of the act of 1907, that 'the 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 way, the act is
relieved of the imputation of burdening interstate commerce.'
18
In the case of St. Louis Southwestern R. Co. 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 90 per cent 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. 136, 147, 54 L.
ed. 698, 704, 29 L.R.A.(N.S.) 802, 30 Sup. Ct. Rep. 476), when the court,
among other things, said:
19
'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 90 per cent of the railroads in the United
States, the court was evidently not numindful 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.' And the court further said:
20
'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.'
21
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.
22
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 New
York ex rel. Hatch v. Reardon, 204 U. S. 152, 160, 51 L. ed. 415, 422, 27 Sup.
Ct. Rep. 188, 9 Ann. Cas. 736, it is said: '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. Albany County v. Stanley, 105 U. S. 305, 311, 26 L. ed. 1044,
1049; Clark v. Kansas City, 176 U. S. 114, 118, 44 L. ed. 392, 396, 20 Sup. Ct.
Rep. 284; Lampasas v. Bell, 180 U. S. 276, 283, 284, 45 L. ed. 527, 530, 531,
21 Sup. Ct. Rep. 368; Cronin v. Adams, 192 U. S. 108, 114, 48 L. ed. 365, 368,
24 Sup. Ct. Rep. 219. 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.'
23
This principle has been applied in many cases, among them: Turpin v. Lemon,
187 U. S. 51, 60, 47 L. ed. 70, 74, 23 Sup. Ct. Rep. 20; The Winnebago, 205 U.
S. 354, 360, 51 L. ed. 836, 839, 27 Sup. Ct. Rep. 509; Citizens' Nat. Bank v.
Kentucky, 217 U. S. 453, 54 L. ed. 836, 30 Sup. Ct. Rep. 532; Southern R. Co.
v. King, 217 U. S. 524, 534, 54 L. ed. 868, 871, 30 Sup. Ct. Rep. 594;
Rosenthal v. New York, 226 U. S. 260, 271, 57 L. ed. ——, 33 Sup. Ct. Rep.
27.
24
The result is that the decree must be reversed and the case remanded, with
direction to dismiss the bill.
