Chicago, R.I. P. Ry. Co. v. Beatty , 34 Okla. 321 ( 1911 )

In our former opinion we held that the demurrage act under consideration was not a violation of the commerce clause of the Constitution of the United States. A petition for rehearing was filed, for the first time calling our attention to section 1 of the act of June 29, 1906 (chapter 3591, 34 St. at L. 584 [U.S. Comp. St. Supp. 1911, p. 1285]), and the petition for rehearing was granted in order that the case might be considered with that act of Congress in mind. At the oral argument it was suggested that the exact proposition was pending before the Supreme Court of the United States, and we have delayed further opinion in the matter awaiting the decision of that tribunal, as it would, of course, be controlling upon us. The exact question, however, has not been decided by that court at this term. Section 1 of the Act of June 29, 1906, is as follows:

"The term 'common carrier,' as used in this act, shall exclude express companies and sleeping car companies. The term 'railroad,' as used in this act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any kind of said property; and the term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carriersubject to the provisions of this act to provide and furnishsuch transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto." (Italics ours).

It will be observed that this section provides that "the term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage," and, further, that "it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor." The effect of the act of Congress, then, is to require the carrier to furnish cars for interstate commerce upon reasonable request, while the effect of the act of the Legislature is to require such cars to be furnished within five days, under the penalty of $1 per day per car for failure to do so.

Is there such a conflict between the two statutes that the state legislation must yield to the national legislation, or does the state legislation, in the exercise of the state's police power, merely incidentally touch the same subject as the national legislation in such a way as to aid, rather than hinder, its full operation? The act of Congress manifestly originates in the power to regulate commerce between the states. On the other hand, the act of the state originates in its police power. Houston T. C. R. Co. v. Mayes,201 U.S. 321, 328, 26 Sup. Ct. 491, 50 L.Ed. 772, 775. We, therefore, have an act of Congress designed to regulate interstate commerce, and an act of the Legislature passed under its police power, both of which, as it happens, act upon the same subject-matter. This being true, the question arises whether there is such a conflict as compels the courts to say that the act of the United States strikes down the act of the state. Certain principles are elementary and fundamental. One is that the Constitution of the United States and laws passed in pursuance thereof are the supreme law of the land. Another is that the states did not grant unto the United States their police power, and consequently they retained it. Another is that the United States, within its sphere, is sovereign, but that the states within their sphere are equally sovereign. From these considerations it would seem to follow that, where an act of Congress, enacted pursuant to its lawful power, touches the same subject as an act of the state, enacted pursuant to its lawful power, the question should be whether at the point of contact these two acts run parallel with each other or whether they cross. If they cross each other, the supreme law, of course, must prevail. If they run parallel with each other, both may prevail, and, in the absence of necessary conflict, the courts will recognize the will of both bodies of lawmakers.

The act of Congress says that the cars shall be furnished upon reasonable request. This merely declares what was the law without the act. Such service was the common-law duty of the carrier. The act of the Legislature requires cars to be furnished within five days. In our previous opinion we have held that this requirement is not so unreasonable and arbitrary as to be stricken down as matter of law. It follows, therefore, that it is reasonable. The act of Congress, therefore, and the act of the state run parallel with each other, and the state enforces a penalty of $1 per day for failure to discharge the duty which is enjoined both by the state and by the nation. There being no necessary conflict, we therefore conclude that section 1 of the act of 1906 does not operate to destroy the demurrage act of Oklahoma which was previously in existence. The principles upon which we rest this conclusion find support in many cases decided by the Supreme Court of the United States, two of which were decided at the last term, one theSouthern Railway Co. v. Reid, 222 U.S. 424, 32 Sup. Ct. 140, 56 L.Ed. 257, striking down a statute of North Carolina relative to the receipt of freight for transportation, and the otherSavage v. Jones, 225 U.S. 501, 32 Sup. Ct. 715, 56 L.Ed. 1182, upholding a statute of Indiana regulating the sales of concentrated commercial feeding stuffs distributed by means of interstate commerce.

In the Reid case the validity of a North Carolina act was involved which required carriers to receive freight for transportation, and forward the same by a route selected by the shipper, under penalty of $50 per day for each day of refusal. It was held that this act was in conflict with the act regulating commerce, and was, therefore, invalidated by it. In that case, however, demand was made upon the carrier for a bill of lading reading from Charlotte, N.C., to Davis, W. Va., and an offer was made to prepay the freight charges. The carrier declined to name a rate or permit the shipper to prepay the freight, and declined to issue a bill of lading as requested, because no through rate or route had been filed or published as required by the interstate commerce act. In determining whether both acts could stand, Mr. Justice McKenna, in delivering the opinion of the court, says (222 U.S. 437, 32 Sup. Ct. 142, 56 L.Ed. 257):

"The principle of that case, therefore, requires us to find specific action either by Congress in the interstate commerce act, or by the Commission, covering the matters which the statute of North Carolina attempts to regulate."

After then reviewing the general scope of the commerce act and of the North Carolina act, it is said (222 U.S. 442, 32 Sup. Ct. 144, 56 L.Ed. 257):

"* * * The statute of North Carolina conflicts with these requirements. What they forbid the carrier to do the statute requires him to do, and punishes disobedience by successive daily penalties."

And again on the same page:

"If the carrier obey the state law, he incurs the penalties of the federal law; if he obey the federal law, he incurs the penalties of the state law. * * *"

Having found this direct conflict between the two laws, it necessarily followed that the state law would have to yield, and the court so held.

Savage v. Jones, 225 U.S. 501, 32 Sup. Ct. 715, 56 L.Ed. 1182, involved certain Indiana legislation prohibiting the sales by importing purchases of concentrated feed stuffs in the original packages without a compliance with the requirements of the statute as to inspection, analysis, the disclosure of the ingredients, and the filing of a certificate of registration and for labels and stamps. It was contended that the act was invalid, because Congress, by the passage of the Food and Drugs Act of June 30, 1906 (chapter 3915, 34 St. at L. 768 [U.S. Comp. St. Supp. 1911, p. 1354]), to prevent the adulteration and misbranding of foods and drugs, had covered the same field, and therefore excluded the act of the state. It was held by the court that there was no necessary conflict between the two acts, and that, therefore, the state act might still stand. In delivering the opinion Mr. Justice Hughes states certain well-established principles, supported by the elaborate citation of authorities, which we think uphold the act under review in this case. He says (225 U.S. 501, 32 Sup. Ct. 722, 56 L.Ed. 1182):

"The state cannot, under cover of exerting its police powers, undertake what amounts essentially to a regulation of interstate commerce, or impose a direct burden upon that commerce."

In support of this statement he cites the following cases:Hannibal St. J. R. Co. v. Husen, 95 U.S. 465, 24 L.Ed. 527;Walling v. Michigan, 116 U.S. 446, 6 Sup. Ct. 454, 29 L.Ed. 691; Bowman v. Chicago N.W. R. Co., 125 U.S. 465, 8 Sup. Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. 681, 34 L.Ed. 128; Minnesota v. Barber, 136 U.S. 313, 10 Sup. Ct. 862, 34 L.Ed. 455; Brimmer v. Rebman, 138 U.S. 78, 11 Sup. Ct. 213, 34 L.Ed. 862; Scott v. Donald, 165 U.S. 58, 17 Sup. Ct. 265, 41 L.Ed. 632; Schollenberger v. Pennsylvania,171 U.S. 1, 18 Sup. Ct. 757, 43 L.Ed. 49; Houston T. C. R. Co. v.Mayes, 201 U.S. 321, 26 Sup. Ct. 491, 50 L.Ed. 772; AtlanticCoast Line R. Co. v. Wharton, 207 U.S. 328, 28 Sup. Ct. 121, 52 L.Ed. 230; Adams Exp. Co. v. Kentucky, 214 U.S. 218, 29 Sup. Ct. 633, 53 L.Ed. 972. He next says:

"But when the local police regulation has real relation to the suitable protection of the people of the state, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by Congress pursuant to its constitutional authority."

Supporting this proposition, he cites the following cases:Plumley v. Massachusetts, 155 U.S. 461, 15 Sup. Ct. 154, 39 L.Ed. 223; Hennington v. Georgia, 163 U.S. 299, 16 Sup. Ct. 1086, 41 L.Ed. 166; New York, N.H. H. R. Co. v. New York,165 U.S. 628, 17 Sup. Ct. 418, 41 L.Ed. 853; Chicago, M. St. P.R. Co. v. Solan, 169 U.S. 133, 18 Sup. Ct. 289, 42 L.Ed. 688;Missouri, K. T. R. Co. v. Haber, 169 U.S. 613, 18 Sup. Ct. 488, 42 L.Ed. 878; Patapsco Guano Co. v. Board of Agriculture,171 U.S. 345, 18 Sup. Ct. 862, 43 L.Ed. 191; Reid v. Colorado,187 U.S. 137, 23 Sup. Ct. 92, 47 L.Ed. 108; Pennsylvania R. Co.v. Hughes. 191 U.S. 477, 24 Sup. Ct. 132, 48 L.Ed. 268;Crossman v. Lurman, 192, U.S. 189, 24 Sup. Ct. 234, 48 L.Ed. 401; New Mexico ex rel. McLean v. Denver R. G. R. Co.,203 U.S. 38, 27 Sup. Ct. 1, 51 L.Ed. 78; Asbell v. Kansas,209 U.S. 251, 28 Sup. Ct. 485, 52 L.Ed. 778, 14 Ann. Cas. 1101; Chicago,R.I. P. Ry. Co. v. Arkansas, 219 U.S. 453, 31 Sup. Ct. 275, 55 L.Ed. 290. He then points out (225 U.S. 501, 32 Sup. Ct. 725, 56 L.Ed. 1182) that, in the enumeration of the acts which constitute a violation of the statute, Congress has required packages to disclose the ingredients when containing morphine, opium, cocaine, and other similar substances, but has not required this to be done in all cases. The Indiana act goes a step further, and requires other ingredients to be disclosed. He then says:

"* * * Can it be said that Congress, nevertheless, has denied to the state, with respect to the feeding stuffs coming from another state and sold in the original packages, the power the state otherwise would have to prevent imposition upon the public by making a reasonable and nondiscriminatory provision for the disclosure of ingredients, and for inspection and analysis? If there be such denial it is not to be found in any express declaration to that effect."

It might have been argued in that case, and doubtless was, that Congress, by expressing its will on the subject, had taken it out of the jurisdiction of the state, but the court evidently did not entertain that opinion. The court, however, at page 501 of 225 U.S., at page 726 of 32 Sup. Ct., 56 L.Ed. 1182, says:

"Is, then, a denial to the state of the exercise of its power for the purposes in question necessarily implied in the federal statute? For, when the question is whether a federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power."

And again, in the next paragraph, it is said:

"* * * In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state."

Many cases are cited supporting this doctrine. At page 501 of 225 U.S., at page 727 of 32 Sup. Ct., 56 L.Ed. 1182, Mr. Justice Hughes quotes with approval from Reid v. Colorado,187 U.S. 137, 23 Sup. Ct. 92, 47 L.Ed. 108, as follows:

"It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said — and the principle has been often reaffirmed — that, "in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.' "

The principles involved in the cases of Southern Railway Co.v. Reid, supra, and Savage v. Jones, supra, are identical, and the two cases, approaching statutes from different points of view, disclose very clearly the principles which should apply.

Will the act of Congress "be frustrated and its provisions be refused their natural effect" by enforcing the act of Oklahoma? Can it be said that "the act of Congress, fairly interpreted, is in actual conflict with the law of the state"? Is there such a "repugnance or conflict" "that the two acts could not be reconciled or consistently stand together"? We think these questions must all be answered in the negative.

The statute of Oklahoma, passed in the exercise of its police power, does not conflict with the act of Congress, passed in the exercise of its right to regulate interstate commerce. This Oklahoma statute, in so far as it affects commerce, facilitates intrastate commerce, and it seems to us that interstate commerce is entitled to the benefit of this statute as much as intrastate commerce. Many other decisions might be reviewed, but Southern Railway Co. v. Reid, supra, and Savage v. Jones,supra, cite these other decisions and lay down the principles necessary to a decision of this case.

We adhere to the original conclusion, and think the judgment of the trial court should be affirmed.

By the Court: It is so ordered.