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It is fallacious, as I think, to contend that the Ohio legislation in question was enacted to promote the public interest. That can only mean the public interest of the state of Ohio, and the reason why such legislation is pernicious and unsafe is because it is based upon a discrimination in favor of local interests, and is hostile to the larger public interest and convenience involved in interstate commerce. Practically there may be no real or considerable conflict between the public interest that is local and that which is general. But, as the state legislatures are controlled by those who represent local demands, their action frequently results in measures detrimental to the interests of the greater public, and hence it is that the people of the United States have, by their Constitution and the acts of Congress, removed the control and regulation of interstate commerce from the state legislatures. Countenance seems to be given, in the opinion of the majority, to the contention that the power of Congress over the regulation of interstate commerce is not exclusive, by the observation that "the plaintiff in error accepted its charter 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 before us is in itself a regulation of interstate commerce when applied to trains carrying passengers from one state to another." [334] *But it has already been shown that Congress has legislated expressly in relation to interstate trains and railroads, has made rules and regulations for their control, and has established a tribunal to make other rules and regulations.

Besides, as was observed by Mr. Webster, in his argument in Gibbons v. Ogden, 9 Wheat. 17 [6: 27]:

"The state may legislate, it is said, when ever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? It has done all that it deemed wise; and are the states now to do whatever Congress has left undone? Congress makes such rules as in its judgment the case requires, and those rules, whatever they are, constitute the system. All useful regulations do not consist in restraint; and that which Congress sees fit to leave free is a part of the regulation as much as the rest."

Attention is called to the fact that in the cases of Hall v. De Cuir, Wabash, St. L. & P. Railway Company v. Illinois, and Illinois C. R. R. Company v. Illinois, there were no specific regulations by Congress as to providing separate accommodations for white and black passengers, as to rates of freight to be charged on interstate commerce, or as to stopping through trains at prescribed places; yet legislation by the states on those subjects was held void by this court as a trespass on the field of interstate commerce.

"The power of Congress to regulate commerce among the several states when the subjects of that power are national in their nature is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states." Re Rahrer, 140 U. S. 545 [35: 572].

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Justices Brewer, White, and Peckham concur in this dissent.

Mr. Justice White dissenting:

The statute is held not to be repugnant to the Constitution of the United States, because it is assumed to be but an exercise of[335] the lawful police power of the state, providing for the local convenience of its inhabitants. On this hypothesis the statute is held valid, although it is conceded that it indirectly touches interstate commerce and remotely imposes a burden thereon. To my mind the Ohio statute, however, does not come within the purview of the reasoning advanced to support it, and therefore such considerations become irrelevant, and it is unnecessary to form any judgment as to their correctness.

My conception of the statute is that it imposes, under the guise of a police regulation for local convenience, a direct burden on interstate commerce, and, besides, expressly discriminates against such commerce, and therefore it is in conflict with the Constitution, even by applying the rules laid down in the authorities which are relied on as upholding its validity. Now, what does the statute provide? Does it require all railroads within the state to operate a given number of local trains and to stop them at designated points? Not at all. It commands railroads, if they run three trains a day, to cause at least three of such trains to be local trains, by compelling them to stop such trains at the places which the statute mentions. It follows, then, that under the statute one railroad operating in the state may be required to run only one local train a day and to stop such train, as the statute requires, and another railroad reaching exactly the same territory and passing the same places may be required to operate three trains a day and make the exacted stops with each of such trains. That is to say, although the same demands and the same

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local interest may exist as to the two roads, upon one is imposed a threefold heavier burden than upon the other. That this result of the statute is a discrimination it seems to me, in reason, is beyond question. If, then, the discrimination is certain, the only question which remains is, Is it a discrimination against interstate commerce? If it is, confessedly the statute is repugnant to the Constitution of the United States. Whence, then, does the discrimination arise and upon what does it operate? It arises alone from the fact that the statute bases its requirement, not upon the demands of [336]local convenience, but upon the volume of business done by the road, since it requires the road operating three trains to stop three as local trains, and the road operating one train to stop only one. But the number of trains operated is necessarily dependent upon the amount of business done, and the amount of business embraces interstate commerce as well as local business. But making the number of local trains dependent upon the volume of business is but to say that if a railroad has enough interstate business, besides its local business, to cause it to run one local and two interstate commerce trains cach way each day, the increased trains thus required for the essential purposes of interstate commerce shall be local trains, while another railroad which has no interstate commerce, but only local business requiring but one train a day, shall continue only to operate the one local train.

While the power of the state of Chio to direct all the railroads within its territory to operate a sufficient number of local trains to meet the convenience of the inhabitants of the state may be, arguendo, conceded,-although such question does not arise in this case, and is not, therefore, necessary, in my opinion, to be decided,-that state cannot, without doing violence to the commerce clause of the Constitution of the United States, impose upon the railroads operating within its borders a burden based, not upon local convenience, but upon the amount of interstate commerce business which the roads may do, thereby causing every interstate commerce railroad to have a burden resting upon it entirely disproportioned to local convenience, and greatly more onerous than that resting upon roads doing a local business, and which have not a sufficient interstate business to compel them to operate three trains. To answer this reasoning by saying that the statute does not compel roads to operate the three trains and stop them, since it only compels them to stop them if they operate them, is to admit the discrimination, and to state the fact that the duty is not made by the statute dependent upon the local convenience, but upon the whole volume of business, which of course, therefore, includes interstate commerce business.

refuses the conclusion that the law directly considers local convenience, and only indi rectly and remotely affects interstate commerce, when the reverse, it seems to me, is patent on the face of the statute. The repugnancy of the statute to the Constitution of the United States is shown by the principle decided by this court in Osborne v. Florida, 164 U. Š. 650 [41: 586]. In that case the state of Florida imposed a license on the business of express companies. In construing the statute the supreme court of the state held that it applied only to business done solely within the state, and not to business interstate in its character. This court, in reviewing and affirming the decision of the state court, said that as construed by the Florida court the statute was not repugnant to the Constitution, because it applied to business done solely within the state, and that the contrary would have been manifestly the case if, for the purpose of taxation, the state had taken into consideration the whole volume of business, including that of an interstate character. Now, if a taxing law of a state is repugnant to the Constitution because it operates upon the whole volume of business, both state and interstate, a law of the character of that now under consideration, which operates upon the whole volume of business of a railroad, state and interstate, is equally repugnant to the Constitution of the United States.

Whether in the enactment of the statute it was intended to discriminate is not the question, for, whatever may have been the intention of the lawmaker, if the necessary effect of the criterion established by the law is to cause its enforcement to produce an unlawful discrimination against interstate commerce by imposing a greater burden on the roads engaged in such commerce than upon other roads which do a purely local business, the statute is, I think, repugnant to the Constitution of the United States, and should not be upheld.

For these reasons, without mearing to imply that I do not assent to the conclusions stated by my brethren who have also, *on [338] other grounds, dissented, I prefer to place my dissent on what seems to me the discrimination which the statute inevitably creates.

M. J. NUGENT, Superintendent of the Territorial Prison of the Territory of Arizona, Appt.,

v.

STATE OF ARIZONA IMPROVEMENT

COMPANY.

(See S. C. Reporter's ed. 338-347.) Evidence of execution of a bond--mandamus against public officer.

1.

As the statute makes its exaction depend, [337]not upon a rule *by which the local wants are ascertained and supplied, but upon the business done, it therefore directly operates upon the volume of business, and only indirectly considers the possible local convenience. Under a law which thus proceeds, my mind 173 U. S. U. S., Book 43. 46

Where a case was heard upon the pleadings without any evidence except a written contract between the parties, a recital in the contract that a certain bond was executed is not evidence of its execution sufficient to overcome an averment in the answer that the bond was not executed.

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person or persons when the labor of the in-
mates of said institution is required upon
any buildings or properties of the aforesaid
institutions and no lease or contract shall be
made that will obligate the territory to
furnish tools, machinery or money, or make
other expenditure other than the labor of
the inmates, properly clothed and fed, and

[No. 119.]

Argued and Submitted January 10, 11, 1899. | the proper guards for same, together with
Decided February 20, 1899.
the use of the property, buildings, and lands
heretofore mentioned; provided, that no con-

2.

|

Where the statute requires a bond to be executed before a contract with a public officer shall be enforceable, such officer cannot be compelled by mandamus to perform the contract, until the bond required by the statute has been given.

Court of the Territory of Arizona affirming the judgment of the District Court of the Third Judicial District of the Territory in and for the County of Yuma overruling a demurrer and giving judgment for the plaintiff, the Arizona Improvement Company, and ordering a peremptory writ of mandamus to issue against M. J. Nugent, Superintendent of the Territorial Prison, commanding him to furnish to the plaintiff certain convicts out of said prison as laborers. Reversed, with directions to remand to the District Court for further proceedings. The facts are stated in the opinion. Messrs. L. E. Payson and Charles F. Ainsworth, Attorney General for Arizona, for appellant.

Messrs. Eugene S. Ives and L. H. Chalmers for appellee.

[338] *Mr. Justice Harlan delivered the opin

ion of the court:

By an act of the legislative assembly of the territory of Arizona, approved March 8th, 1895, the governor and auditor of the territory, together with one citizen to be appointed by the governor with the advice and consent of the council, were constituted a board of control, and given charge of all charitable, penal, and reformatory institutions then existing or which might thereafter be created in the territory.

It was provided by the ninth section of the [339]act that the board of control, after qualifying and entering upon their duties, should have full control over the territorial insane asylum, the territorial reform school, and territorial prison, together with all property, buildings, and lands belonging thereto or that should thereafter be acquired. That section further provided: "Sixty days after the passage of this act they shall have the power and authority to enter into an agreement or agreements with a responsible person or persons, to lease on shares or for cash the property, buildings, and lands, or any part thereof, now belong ing to the territory, wherever said buildings and lands may be located, or that may hereafter be acquired for the purpose of furnishing employment for the inmates of the said territorial prison and the said territorial reform school. The said board shall have the authority to contract with a responsible person or persons to furnish the labor of the inmates now within the said reform school or said prison, or that may hereafter be confined therein, or any number of them, for the best interests of the territory; provided, however, that at no time shall the labor of the inmates of the said territorial prison or territorial reform school be leased to any

term of more than ten years from the time tract or lease shall be made to of making said lease or contract. And the said board may contract to allow such labor to be performed at any place either inside or outside the prison walls or the confines of the reform school, but if a contract be made to allow labor to be performed outside of the prison walls or confines of the reform school it must be done under proper restrictions, having regard for the safety of the prisonmust be given by the person or persons leasers or inmates. A good and sufficient bond ing the labor of inmates of the aforesaid[340] such contract; said bond to be approved by institutions for the faithful performance of the board of control." Ariz. Laws 1895, pp. 20, 22.

This statute being in force, a written agreement was made December 2d, 1896, between "the territory of Arizona, by L. C. Hughes, Governor, C. P. Leitch, Auditor, and M. H. McCord, constituting the Board of Control of the Territory of Arizona," of the first part, and the State of Arizona Improvement Company of the second part. That agreement contained, among other provisions, the following:

covenants and

on

"The party of the second part having submitted its good and sufficient bond for the faithful performance of this contract, which said bond has been approved by the said board of control and each of its members, and is herewith delivered and accepted, the said party of the first part, for and in consideration of the agreements hereinafter mentioned, reserved contained on and their part, and behalf of the said party of the second part to be done and kept and performed, hath granted, bargained, demised, leased, and to farm letten to said party of the second part, its successors and assigns, all that certain real estate; the male convicts now in the territorial penitentiary, or who may hereafter be confined therein, to have and to hold the labor of said penitentiary convicts unto said party of the second part, and to its assigns, for the term of ten years from the date of these presents; and the lands and premises above described for and during and until the end of the full term of ten years to be fully completed and ended, and it is further stipulated and agreed by and between the parties hereto that in the event of the removal of the territorial prison from Yuma county, territory of Arizona, to any other portion of the ter ritory, such removal will in no way, manner, shape, or form interfere with the conditions, stipulations, and covenants of this contract and lease.

also all the labor of

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"It is further understood, stipulated, and agreed by and between the parties hereto, that the party of the second part is to have the exclusive control of the labor of the convicts in the territorial prison from 8 o'clock [341]A. M. to 5 o'clock P. M., during the said term of ten years from the date of these presents, Sundays and legal holidays excepted.

"It is further agreed by and between the parties hereto that the party of the first part, or its agent or agents, will furnish the said convict labor to the party of the second part, at the place or places designated by the said party of the second part, or its agents, in Yuma county, Arizona territory, properly guarded, clothed, fed and ready to commence work at the hours and terms heretofore mentioned, and the party of the first part shall properly guard said convicts during the hours of labor. The party of the second part is to furnish all the tools and machinery necessary for the use of the convicts while at work under the conditions of this contract and lease, but the said party of the first part shall not be compelled to take outside of the prison, under guard, parties of less than five convicts.

"The superintendent of the prison or agent of the territory having the convicts in charge shall be required to furnish the convicts in such numbers as may be required from time to time up to the amount of all the ablebodied male convicts; to deliver them at such points or places in Yuma county as may be demanded of him by the party of the sec ond part, its agent or agents. The party of the second part further agrees to keep a current and accurate account of the number of days worked by convicts, and on the first Monday of each calendar month to make a statement of the total number of days done the previous month by all the convicts employed by the said party of the second part, and shall furnish a copy of the said statement to the superintendent of the territorial prison, properly verified by an agent of the company.

The said party of the second part agrees to compensate the party of the first part for such convict labor as follows, to wit: The value of each convict's labor shall be placed at 70 cents per day, and as soon as the party of the first part has furnished convict labor at the rate of 70 cents per day, aggregating the sum of sixteen hundred dollars, the party of the second part shall issue its perpetual [342]water-right deed for eighty acres of land, of the water in its canal, when such canal is completed.

"It is further covenanted and agreed, by and between the parties hereto, that after the water rights hereinbefore provided for are earned by said party of the first part, then as soon as the labor of convicts at the rate of 70 cents per day for each day's labor amounts to sixteen hundred dollars, the party of the second part shall issue water-right certificates for one eighty-acre water right.

"It is further stipulated by and between the parties hereto in consideration of the covenants herein contained, that the said party of the second part is to use such of

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said convicts' labor

this contract and lease as it may from time to time require, and such party of the second party need not commence to use any of said labor sooner than five months from the date hereof.

"It is further stipulated and agreed by and between the parties hereto, in consideration of the covenants herein contained, to be performed by each of the parties hereto, and in consideration of the convict labor herein mentioned, that the lease of the lands herein described shall commence on and from the day when the water shall be conducted in the canal of the party of the second part to the lands convenient for the said water to be conducted upon the said lands hereinbefore described, and shall terminate ten years thereafter; and that the party of the second part shall pay to the party of the first part, as rent therefor, an annual sum, to be hereafter determined upon, in cash, or, at the option of the party of the second part, one half of the net products of the said lands; provided, however, that the said lease shall commence to run within four years from date.

"It is further agreed, covenanted, and declared that these presents are made, executed, and delivered for the best interest of the territory of Arizona, and for the purpose of furnishing employment for the inmates of the said territorial prison,-the labor of said inmates being not required upon any buildings or properties of any institution of said territory."

On the 22d day of April, 1896, it was agreed in writing between the parties as[343] follows: "The time for commencing work under this contract is hereby extended to the 10th day of June, 1896, and it is fully understood and agreed by the parties hereto that this extension is in no way to affect the legal status of said contract. It is understood and agreed that the rights of the parties thereto are to remain in statu quo, and the extension herein made is not intended to ratify, alter, or impair said contract, or to give it any validity whatsoever that it does not, before the signing of this instrument, possess."

Later, a supplemental agreement in writ ing was made between the same parties, but in the view which the court takes of this case it need not be set out in this opinion.

On the 26th day of May, 1896, the State of Arizona Improvement Company filed its complaint in the district court of the third judicial district of the territory in and for the county of Yuma, in which reference was made to the above agreements with the board of control, and in which it was alleged that it was a corporation organized under the laws of the territory; that M. J. Nugent, a resident of Yuma county, was the superintendent of the territorial prison at Yuma, and as such had full control of the prisoners confined in that prison, subject only to the direction of the board of control of the territory; that on the 25th day of May, 1896, the plaintiff company demanded in writing of said Nugent, superintendent aforesaid, that in pursuance of the contract between it and said board of control. he

furnish to plaintiff on the 2d day of June, 1896, at 8 A. M., ten able-bodied male convicts out of the territorial prison at Yuma, properly guarded, on the outside of the gate of the territorial prison; that on the next day Nugent served a written notice on the plaintiff, whereby he peremptorily declined to furnish the convict labor at such time and place, or at any time and place; and that the plaintiff had not a plain, speedy, or adequate remedy in the ordinary course of law. The complaint was supported by the affidavit of the president of the plaintiff com

pany.

The relief asked was that a writ of man[844]damus issue, directed to Nugent, superintendent of the territorial prison, directing and commanding him to furnish to the plaintiff ten able-bodied male convicts out of the territorial prison at Yuma, on the 2d day of June, 1896, on the outside of the prison gate at Yuma, properly guarded; and that plaintiff have such other and further relief as to the court seemed meet and just.

An alternative writ of mandamus was is sued, and Nugent, as superintendent of the prison, excepted to the sufficiency of the complaint and demurred thereto upon these grounds: 1. That the complaint did not state facts sufficient to authorize a writ of mandamus. 2. That the plaintiff sought to compel the performance of an act by the respondent as superintendent of the territorial prison, which the law did not specially enjoin upon him as a duty resulting from his office. 3. That the petition sought to compel the performance of a contract made by others and not by respondent. 4. That the alleged contract was void because authorized only by a pretended law which was void.

Nugent also filed an answer alleging, among other things, that there was a want of proper parties defendant; that the territory had no power to hire out the convicts confined in the territorial prison who had not been sentenced to punishment with hard labor, nor to authorize the convicts to be taken out and away from the territorial prison, where punishment and sentence was by confinement in such prison; that the board of control had no power to make the contract sought to be enforced; that the contract was itself without consideration and in violation of the act of March 8th, 1895, in that it was for a period of over ten years: that the contract took the entire convict labor for the period just named in violation of the provisions of the act providing that said labor should not be leased out when it was needed to work on the buildings and premises of the territory; and that the contract was against public policy in authorizing all the prisoners to be taken from the prison and to remain away from it in many cases for the entire period of their sentence.

The answer also averred "that as the duly appointed, qualified, and acting superinten[345]dent of the territorial prison at Yuma, Arizona, previous to the service of the alternative writ herein, this defendant was advised and informed by the Honorable B. J. Frank

lin, as governor of the territory of Arizona, that the said pretended contract mentioned in the application herein was and is of no valid force and effect, and further advised and informed in substance and to the effect that said contract was not of any legal force or binding effect upon said territory or said board of control, and, among other things concerning the same, the said Honorable B. J. Franklin, acting as such governor, authorized and directed this defendant in substance and to the effect that in the event that the said State of Arizona Improvement Company should, by its officers or agents, make a demand upon this defendant to do or perform anything under the provisions of said contract, and especially if such demand should be made for the delivery of any prisoners confined in or inmates of said penitentiary to the said company, its officers or agents, at the gate of said prison or elsewhere, that this defendant, acting as such superintendent, should politely, but firmly, refuse such request or any request made or to be made under the provisions of said pretended contract; that acting under the advice and information given by the Honorable B. J. Franklin, governor of this territory, and of the direction of the head of the executive department of this territory, this de fendant alleges that he made the refusal complained of in the application herein, and not otherwise. Respondent further avers and gives the court to know that the State of Arizona Improvement Company has not, before the institution of these proceedings, executed and filed a good and sufficient bond enforceable in a court of law in any of the courts of this territory for the faithful performance of said contract, as required by said pretended board of control act."

The case was heard in the district court on the complaint and the demurrer and answer. The demurrer of the defendant was overruled, and the contracts set forth in the complaint were the only evidence adduced at the trial. The defendant having declined to amend the pleadings or to offer further evidence, and having elected to stand upon the pleadings, the court found for the plaintiff,[346] and ordered a peremptory writ of mandamus to issue.

A new trial having been refused, the case was carried to the supreme court of the territory, where the judgment of the district court was affirmed.

We are of opinion that the supreme court of the territory erred in affirming the judg ment of the district court awarding a writ of mandamus against the defendant Nugent.

The statute under the authority of which the board of control made the contract referred to in the complaint expressly required a good and sufficient bond to be given by the person or persons leasing the labor of inmates of the territorial prison for the faithful performance of such contract, which bond was to be approved by the board. The complaint asking for a mandamus against the superintendent of the prison did not distinctly allege the execution of such bond.

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