Hardwick Farmers Elevator Co. v. Chicago, Rock Island & Pacific Railway Co.

Jaggard, J.

(after stating the facts not within [] as above)

The defenses interposed were, first, that because of a freight congestion, one of the greatest in the history of commerce, it was impossible for defendant to furnish cars any sooner than it did. On the evidence adduced, the trial court submitted to the jury the question whether or not it was within the power of the railroad company to have furnished the cars when demanded. The verdict of the jury for plaintiff must be sustained on this point, for this court was not furnished with a transcript of the testimony. No question on the subject is therefore presented for our consideration. The verdict must stand, in the absence of other objection. Mead v. Billings, 40 Minn. 505 , 42 N. W. 472 ; Brackett v. Cunningham, 44 Minn. 498 , 47 N. W. 157 .

The second defense asserted was that the law was unconstitutional under the state and federal constitutions, especially as an attempted regulation. of interstate commerce in violation of section 8, art. 1, Const. (U. S.) and the laws of congress, and has failed to comply with the acts of congress and section 1, Amend. 14, (U. S. Const.) concerning “due process of law.”

1. The commerce was interstate. Even the merchandise transported between two points within this state was conveyed by lines of the defendant through a neighboring state to its destination within this state, and was therefore not intrastate commerce. See State v. Chicago, St. P., M. & O. Ry. Co., 40 Minn. 267 , 41 N. W. 1047 , 3 L. R. A. 238, 12 Am. St. 730; Patterson v. Missouri, 77 Kan. 236 , 94 Pac. 138 , 15 L. R. A. (N. S.) 733; Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617 , 23 Sup. Ct. 214, 47 L. Ed. 333 . This *33 conclusion follows also from the admissions of the pleadings and the unchallenged charge of the trial court.

2. The law needs little construction. By its terms it applies ’to both intrastate and interstate commerce. Its language is clear enough, except that of section 11. It is thereby made a defense in an action to enforce one dollar a day demurrage that certain conditions in fact exist.

In their enumeration, the general expression “or any cause not within the power of the railroad company to prevent” is preceded by “strikes, public calamities, accident,” and is followed by “inclement weather” and by “any cause not in the power of said shipper or consignee to prevent.” If these words had been placed at the end, instead of the middle, of the sentence, no considerable difficulty would have been presented. The exceptional circumstances, however, which precede and follow, are substantially of the same nature. They all belong to the class of causes of delay over which the railroad company had no control and for the effects of which it could not reasonably be held accountable. The reason for the application of the familiar rule “ejusdem generis” fails; or it may be more accurate to say that its application results in the construction for which the state contends. Such a conclusion, moreover, is in furtherance and not in contradiction of the natural sense and obvious meaning of the words under consideration. It is to be noted that the restrictive word “other,” which has primarily germinated the doctrine of “ejusdem generis,” is not used, but the inclusive word “any.” As to the broad construction to be given where “other” has been used, see U. S. v. Bitty, 208 U. S. 393 , 28 Sup. Ct. 396, 52 L. Ed. 543 ; State v. Western Union Tel. Co., 96 Minn. 13 , 104 N. W. 567 ; Detroit v. Common Council, 125 Mich. 673 , 85 N. W. 96 , 86 N. W. 809 , 84 Am. St. 589; State v. Western Union, 165 Mo. 502 , 65 S. W. 775 .

Again, as will subsequently appear herein, if the language be thus broadly construed, the act will be constitutional; if it be narrowly construed, it will be unconstitutional. There is no doubt as to the duty of the court to adopt the view which will sustain the law. The expression naturally refers to causes not absolutely, but reasonably, within the power of the railroad company to prevent." Any other *34 meaning would be strained, would vitiate tbe law, would be opposed to common sense, and would oppose authority. Darlington v. Missouri, 216 Mo. 658 , 116 S. W. 530 (involving the construction of a reciprocal demurrage law), is specific as to principle. It would be idle to collate cases.

Finally, the word “accident” is significant. In Patterson v. Missouri, supra, a similar question was presented to the court, and “unavoidable accident” was interpreted to mean “unavoidable on the part of the company sought to be penalized.”

Construing the clause as a whole, we conclude that the enumerated defenses extend to any cause beyond the power of the railroad company to reasonably prevent. It includes as excepted cases all the contingencies recognized by. the Texas statute involved in Houston & Texas Central R. Co. v. Mayes, 201 U. S. 321 , 26 Sup. Ct. 491, 50 L. Ed. 772 (post), all those set forth in that opinion for failure to except which that statute was there held invalid, the defense here asserted, and others of the same kind. Thus it includes the objection by one of the defendants in another similar action that the statute entirely disregarded the quantity of freight to be loaded upon car or cars, the number of cars and the side track facilities which the particular shipper may have to handle, whereby the carrier might be tin justly deprived of the use of its surplus cars required to be furnished above those which can be used. If, however, the facts in such case should show that it was unreasonable to charge demurrage, the carrier would have a complete defense; if the facts should show that it was reasonable to impose the charge, the carrier would have no just ground of complaint. Darlington v. Missouri, supra, to which counsel for the company refers us in this connection is in no wise inconsistent.

3. The so-called reciprocal demurrage law as thus construed is not unconstitutional. In Ex parte McNiel, 13 Wall. 236 , 20 L. Ed. 624 , Mr. Justice Swayne said: “In the complex system of polity which prevails in this country, the powers of government may be divided into four classes: (1.) Those which belong exclusively to the states. (2) Those which belong, exclusively to the national government. (3) Those which may be exercised concurrently- and independently *35 by both. (4) Those which may be exercised by the states, but only until congress may see fit to act upon the subject.” Whatever effect subsequent decisions may have had upon the exact lines of demarcation between these classes of cases, it is certain that between the one pole of facts which clearly constitute a clear violation of federal power in the regulation of interstate commerce and the opposed pole of those which bring a given instance within the unquestioned power of the states, there is a definitely recognized intermediate zone in which state laws enacted in the exercise of the police, power, which indirectly and remotely affect interstate and foreign commerce, are to be enforced unless they are “superseded and displaced by some act of congress.” Hennington v. Georgia, 163 U. S. 299 , 16 Sup. Ct. 1086, 41 L. Ed. 166 ; Railroad Co. v. Haber, 169 U. S. 613 , 18 Sup. Ct. 488, 42 L. Ed. 878 ; cases collected in Pittsburgh v. State (Ind.) 87 N. E. 1034 , at page 1040 (involving a “full crew” act). Such laws are not within prohibited “regulations of interstate commerce, and it is only when they operate as such in the circumstances of their application and conflict with the express or presumed will of congress exerted upon the same subject that they can be required to give way to the paramount authority of the constitution of the United States.” Gray, L, in Gladson v. Minnesota, 166 U. S. 427 , 17 Sup. Ct. 627, 41 L. Ed. 1064 . And see Lake Shore & Michigan S. Ry. Co. v. Ohio, 173 U. S. 285, 301 , 19 Sup. Ct. 465, 43 L. Ed. 702 .

Many such cases will be found summarized in Cleveland, C. C. & St. L. Ry. Co. v. Illinois, 177 U. S. 514 , 20 Sup. Ct. 722, 44 L. Ed. 868 . McNeill v. Southern Ry. Co., 202 U. S. 543 , 26 Sup. Ct. 722, 50 L. Ed. 1142 , is in accord, none the less because it also asserts the converse proposition “that any regulation of such subject made by the state or under its authority, which directly burdens interstate Commerce is a regulation of such commerce, and repugnant to the constitution of the United States.” Our examination of the relevant decisions has convinced us that the current assertion of the invasion upon the traditional functions of the state by the decisions of the federal supreme court in this matter is unfounded and that the extent to which wide police powers over the instrumentalities of transportation employed in interstate and foreign business has been preserved *36 to the states is impressive. See Calvert, Regulation of Commerce, [Preface], iv.

(b) The law here in controversy is fairly within that middle zone. It conflicts with no congressional action previously taken or reasonably presumed; for the primary purpose of the interstate commerce act (Act February 4, 1887), 24 St. 379, as amended by Act June 29, 1906, 34 St. 584 (the Hepburn law) was to secure reasonable rates and to prevent unjust discriminations. It affects interstate commerce in an indirect or remote manner only. Neither its purpose nor its operation constitutes a burden on such commerce. Its enforcement must tend to secure the prompt performance by the carrier of its common-law duty to furnish cars for transportation of freight and thus to add to the volume of matter to be transported within and without the state. Without euphemism it is in aid of commerce of both kinds. As was said in Seegers v. Seaboard, 73 S. C. 72, 52 S. E. 798 , 121 Am. St. 921, “the penalty is but a means to that end.” And see Charles v. Atlantic, 78 S. C. 36, 58 S. E. 927 , 125 Am. St. 762. As hereinbefore construed, it conforms to the federal test of reasonableness (as will subsequently be set forth).

(c) Upon the necessary assumption of correct legislative determination of commercial expediency, there are obvious practical advantages in permitting the states to legislate on this subject. So to do secures the flexibility of local legislation and the certain conformity with federal standard. In the nature of things the legislatures of the various states are peculiarly familiar with and in an especially good position to determine the expediency of such a law in the geographical and commercial situation presented, with due reference to the density of population, nearness to markets, the productiveness of the region, the perishability of products, climatic conditions, the nature and extent of actual railroad facilities, the difficulties of movement, the variation in demand, and with due reference to many other facts involved in the problem of transportation. It appears probable that uniform congressional legislation would lack the flexibility and adaptability of local laws. “The failure of the states to adopt regulations to meet a supposed need, either by indifference to the wrong or delinquency, or by such an exercise of the power that, on account of *37 the absolute requirements imposed, a regulation cannot pass the supreme test of reasonableness, results in agitation for federal regulation of matters concerning which the power of congress is undoubted. There would be no need to invoke the exercise of the federal power in such eases if states adopted reasonable regulations to satisfy local requirements or opinion.” Calvert, Regulation of Commerce, iv. Consistent determination of the legal aspects of such a law is certainly secured, because the ultimate decisions of all essential questions arising under it rest, not with the courts of the various states, buk with the highest federal tribunal. If the decision of legal issues was left to the state courts, there would be variety and confusion in conclusion. The present system, in its legal as distinguished from its economical aspects, is capable of proving an advantage both to the carrier and shipper.

(d) The authorities sustain the constitutionality of the law. The decisions of the federal supreme court control absolutely. Houston & Texas Central R. Co. v. Mayes, 201 U. S. 321 , 26 Sup. Ct. 491, 50 L. Ed. 772 . The court in that case considered a railroad demurrage law enacted by the legislature of Texas, which for all purposes here involved was the same as the statute under consideration, except that (1) the amount charged for each day’s delay was $25, and (2) that the enumerated cases exempted from its operation were extremely limited.

That decision determines (1) that in the present state of actual and presumed congressional action the state is able in the exercise of its police power to make reasonable rales in regard to the method of carrying on intrastate business, and to make laws compelling railroads to furnish adequate facilities for transportation of both freight and passengers; (2) that a demurrage law which.undertakes to enumerate exceptions to liability must make sufficient allowance for practical difficulties in railroad operation; (3) that the Texas statute was “not far from the line of proper police regulation,” but that it failed to recognize as proper defenses many contingencies for the results of which it was unreasonable to hold the carrier responsible. See Calvert, Regulation of Commerce, 95. It follows that the present law is valid.

*38 The interpretation which other courts have placed on such a law has not been consistent, but taken as a whole tends to sustain this conclusion. Oliver v. Railroad, 89 Ark. 466 , 117 S. W. 238 , in an opinion by Norton, J. (“Special Judge”), regarded the Mayes case as refusing to enforce the law upon the ground that the requirement that cars be furnished transcended the rights of the state to burden interstate commerce. The law, therefore, was invalid as to interstate commerce, hut valid as to intrastate commerce. We think that the opinion plainly misconstrued the Mayes case. Cf. Southern v. Melton, 133 Ga. 277 , 65 S. E. 665 , as to intrastate commerce.

In St. Louis, I. M. & S. Ry. Co. v. Hampton (C. C.) 162 Fed. 693 , the opinion by a district judge was oral. It held that an Arkansas law was an interference with interstate commerce. Its requirement to furnish cars was absolute, and made no exception 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, and none for interference with traffic by wrecks, accidents, or strikes. In this regard it was primarily and obviously different from the present statute. Moreover, the statute there construed involved a penalty of five dollars per day.

McNeill v. Southern Ry. Co., supra, concerned a state commissioner’s order compelling a railroad company to deliver cars containing interstate shipments beyond its right of way to a private siding. This was held unlawful interference with interstate commerce. This case is evidently not specifically in point. Nothing in the opinion on the general subject seems to indicate any leaning to defendant’s view.

In Southern v. Commonwealth, 107 Va. 771 , 60 S. E. 70 , 17 L. R. A. (N. S.) 364, decided in 1908 subsequent to any congressional action on the subject, a rule promulgated by the state corporation commission was held unreasonable and void as applied to shipments outside of the state, because it imposed “even a greater burden on interstate commerce than the provisions of the Texas statute.” That court consisted of five judges. All concurred in the conclusion that the particular rule was invalid. Three judges wrote concurring opinions, the effect of which is that it is within the power of the state, under the Mayes case to make reasonable regulation as to the furnish *39 ing of cars by railroad companies, not only for intrastate but for interstate commerce, and that the crucial test of license to that effect was its reasonableness. The opinion itself contains a direct statement of this view of the law. With its application to the particular circumstances there in issue we have no present concern.

The conclusion here reached has been specifically sanctioned. In Patterson v. Missouri, supra, a reciprocal demurrage law was held valid, although it affected interstate business. It was held to be an aid not a burden to such commerce. It was distinguished from the Texas case (1) in imposing a penalty of one dollar a day as here, instead of twenty-five dollars a day, an amount “merely nominal, and * * * not sufficient * * * to furnish any inducement to order cars not actually needed,” and (2) because, while he Texas case contained inadequate enumeration of exceptions, the Kansas law recognized as a defense any “unavoidable cause.”

To the same effect is Stone v. Atlantic Coast, 144 N. C. 220 , 56 S. E. 932 , which also construed the point in the Mayes case as expressing an opinion that the statute was not far from the line of police regulation, but fell on the wrong side of the line. Yazoo v. Keystone, 90 Miss. 391 , 43 South. 605 , is to the same effect and see valuable note to 13 Am. & Eng. Ann. Cases, 960, at page 964, and see Atlantic v. Commonwealth, 102 Va. 599 , 46 S. E. 911 ; Railroad Co. v. Melton, 133 Ga. 277 , 65 S. E. 665 , at page 674; Darlington v. Missouri, 216 Mo. 658 , at page 675, 116 S. W. 530 , at page 535, in which Graves, J., said “that the state has a right within certain limits to regulate demurrage charges is not seriously disputed, nor could it be.”

Third. One defendant urges that the provision requiring the payment of attorney’s fees is invalid, because it places upon those who under the terms of the statute owe and do not pay demurrage a penalty not imposed upon debtors generally. Thus the carrier is denied the equal protection of the law and suffers a talcing of property without due process of law.

We are referred to Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 , 17 Sup. Ct. 255, 41 L. Ed. 666 . That case involved the constitutionality of a law requiring carriers to pay attorney’s fees on *40 their failure to pay claims for less than fifty dollars for labor, damages, overcharges on freight, or for the killing of stock. It was held that this was a statute which compelled the payment of indebtedness, but which did not come within the scope of the police power. Three justices dissented. In the case at bar, however, the law was enacted in the exercise of police power. The case cited, and the class of authorities to which it belongs, have no relevancy to the -issues here presented.

That this demurrage charge has been fixed in part at a definite sum of one dollar a day for each car, and in part in an uncertain sum to be determined by the reasonable value of the services actually rendered in each case, to be taxed and paid as costs, is no valid objection to this part of the law. If this particular provision, however, were void, it would not affect the substance of the statute.

Affirmed.