have been void.

upon the assumption that if the statute was have; and it is notable that the same views not merely a rule of evidence, but an attempt | and feelings had a very powerful influence to regulate interstate commerce, it would in dictating the policy of setting apart any day whatever as a day of enforced rest." And it was said in the opinion of this court that "in our opinion there is nothing in the legislation in question which suggests that it was enacted with the purpose to regulate interstate commerce, or with any other purpose than to prescribe a rule of civil duty for all who, on the Sabbath Day, are within the territorial jurisdiction of the state."

Reference is also made, in the principal opinion, to Missouri, Kansas, and Texas Railway v. Haber, 169 U. S. 613 [42: 878]. [325] There an attack was made on the validity of legislation of the state of Kansas, subjecting any person or persons who should bring into that state any cattle liable or capable of communicating "Texas or splenetic fever" to any domestic cattle of Kansas, to a civil action for damages. In such an action it was contended on behalf of the defendant that the Kansas statutes were an interference with the freedom of interstate commerce, and also covered a field of action actually occupied by congressional legislation known as the Animal Industry Act. But it appeared that the Kansas act under which the action was brought was passed in 1885 and amended in 1891, and that Congress had previously invited the authorities of the states and territories concerned to co-operate for the extinction of contagious or communicable cattle diseases. Act of May 29, 1884, 23 Stat. at L. 31. And accordingly a majority of this court held that the statutory provisions of Kansas were not inconsistent with the execution of the act of Congress, but constituted an exercise of the co-operation desired. Otherwise the case would have fallen within the ruling in Hannibal & St.J. Railroad Co. v. Husen, 95 U. S. 465 [24: 527], where a similar statute of the state of Missouri, passed before the legislation by Congress, and prohibiting the bringing of Texas cattle into the state of Missouri between certain times fixed by the statute, was held to be in conflict with the commerce clause of the Constitution, and not a legitimate exercise of the police power of the state.

The case of Hennington v. Georgia, 163 U. S. 299 [41: 166], demands notice. In it was involved the validity of what is known as the Sunday law of Georgia. That statute forbade the running in Georgia of railroad freight trains on the Sabbath Day. The supreme court of Georgia held the statute to be a regulation of internal police, and not of commerce, and that it was not in conflict with the Constitution of the United States even as to freight trains pasing through the state from and to adjacent states, and laden exclusively with freight received on board before the trains entered Georgia, and consigned to points beyond its limits.

It was shown in that case that it had been the policy of Georgia, from the earliest period of its history, to forbid all persons, under penalties, from using the Sabbath as [326]a day of labor and for pursuing their ordinary callings, and that the legislation in question was enacted in the exercise of that policy. It was said in the opinion of the supreme court of Georgia, which was brought to this court for review, that "with respect to the selection of the particular day in each week which has been set apart by our statute as the rest day of the people, religious views and feelings may have had a controlling influence. We doubt not that they did

If, as has often been said, Christianity is part of the common law of the several states, and if the United States, in their legislative and executive departments throughout the country, since the foundation of the government, have recognized Sunday as a day of rest and freedom from compulsory labor, then such a law as that of Georgia, being based upon a public policy common to all the states, might be sustained.

But if put upon the ground now declared in the opinion of the court in the present case, namely, as an exercise of the police power of the state, and, as such, paramount to the control of Congress in administering the commerce clause of the Constitution, then it is apparent, as I think, that the decision in Hennington v. Georgia was wrong, and the judges dissenting in that case were right.

For if, as a mere matter of local policy one state may forbid interstate trains from running on the Christian Sabbath, an adjoining state may select the Jewish, or Seventh Day Sabbath as the day exempt from business. Another state may choose to consecrate another day of the week in commemoration of the Latter Day Saint and Prophet who founded such state, as the proper day for cessation from daily labor. Or, what is[327] more probable, one or more of the states may think fit to declare that one day in seven is not a sufficient portion of the time that should be exempted from labor. and estab lish two or more days of rest. The destructive effect of such inconsistent and diverse legislation upon interstate commerce, carried on in trains running throughout the entire country, is too obvious to require statement or illustration.

But whatever may be said of the decision in Hennington v. Georgia, it is, as I think, quite apparent that the Ohio legislation now under consideration cannot be reconciled with the principles and conclusions of the other cases cited.

The principal facts of this case as found by the trial court were: "That the defendant company is a corporation organized under the laws of the states of New York, Pennsylvania, Ohio, Indiana, Michigan, and Illinois, and that its railroad is operated from Chicago to Buffalo; that said defendant was, on and prior to October 9, 1890, and has been ever since, engaged in carrying pas sengers and freight over said railroad, through and into each of said several states, and is and was then engaged in the business of interstate commerce, both in the carriage of passengers and freight from, into, and through said states; that said defendant

tained in the "Act to Regulate Commerce," approved February 4, 1887, creating the Interstate Commerce Commission.


did not on said 9th day of October, 1890. nor shortly prior thereto, or since, up to the time of the commencement of this suit, run daily, both ways or either way, over said road through the village of West Cleveland, three regular trains nor more than one regular train each, carrying passengers, which were not engaged in interstate commerce, and that did not have upon them passengers who had paid through fare, and were entitled to ride on said trains going in the one direction from the city of Chicago to the city of Buffalo, and those going in the other direction from the city of Buffalo through said states to the city of Chicago; that on or about the said day the defendant operated but one regular train carrying passengers each way, that was not engaged in carrying such through passengers; and said train did stop at West Cleveland, on the day aforesaid, for a time sufficient to receive and let off passengers; that the through trains that [328] passed through West Cleveland on the said day were train No. 1, limited express with two express cars, one coach, and three sleepers, from New York to Chicago; train No. 11, fast mail, with five United States mail cars, one coach, and sleeper, from New York to Chicago; train No. 21 had one United States mail car, two baggage and express cars, four coaches, and one sleeper, from Cleveland to Chicago (these were western trains); that the eastern trains were limited express No. 4, with one baggage and express car and three sleepers, from Chicago to New York; train No. 6, with one baggage and express car, three coaches, and two sleepers, from Chicago to New York; train No. 24, with one United States mail, two baggage and express cars, and seven coaches, from Chicago to Buffalo; train No. 14, with three United States mail cars and one sleeper from Chicago to New York. That the average time of delay necessarily required to stop a train of cars and sufficient time to receive and let off passengers would be three minutes; and that the number of cities and villages in the state of Ohio, containing three thousand inhabitants each, through which the aforesaid trains of the defendant passed on said day, were thirteen."

*The theory on which passenger trains to[329) traverse several states, or the entire continent, are prepared, is necessarily and widely different from that followed in making up ordinary trains to do a wayside business. There must be provision for sleeping at night and for furnishing meals. In order that each and every passenger may receive the accommodation for which he pays, the seats are sold in advance and with reference to the number of through passengers. To enable such trains to maintain the speed demanded, the number of the cars for each train must be limited, and they are adver tised and known as "limited" trains. A traveler purchasing tickets on such trains has a right to expect that he will be carried to his journey's end in the shortest possible time consistent with safety. The railroad companies compete for business by holding out that they run the fastest trains and those most certain to arrive on time. A company which by its own regulations or under coercion of a state legislature, stopped its through trains at every village, would soon lose its through business, to the loss of the company and the detriment of the traveling public.

Nor must the necessity of the speedy transit of the United States mails be overlooked. The government has not thought fit to build and operate railroads over which to transport its mails, but relies upon the use of roads owned by state corporations operating connecting roads. And it appears, from the findings in this case, that the defendant's through trains are engaged by the govern ment in the transportation of its mails. The business, public and private, that depends on hourly and daily communication by mail, is enormous, and it would be intolerable if such necessary rapidity of intercourse could be controlled and trammeled by legislation like that in question.

It was pointed out in Hall v. De Cuir that, although the statute of Louisiana, which sought to regulate the manner in which white and colored passengers should be carried, was restricted by its own terms to the limits of the state, yet that such regulation necessarily affected steamboats running through and beyond the state, because such regulations might change at every state

It is, therefore, a conceded fact in the case that the through trains which the legislature of Ohio seeks to compel to stop at prescribed villages and towns in that state are engaged in carrying on interstate commerce by the transportation of freight and passen-line. gers. It is obvious, further, that such trains are within section 5258 of the Revised Statutes of the United States, authorizing such railroad companies "to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, mails, freight, and property on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportation of the same to the place of destination.”

It is also plain that the defendant railroad company and such of its trains as were engaged in interstate commerce are within the scope and subject to the regulations con

*A similar but much greater inconvenience[330) would be occasioned by attempting by state legislation to interfere with the movements of through trains. If, for instance, and as is often the case, the through trains were full of through passengers, there would be no advantage to local travel for them to stop at the way stations, for there would be no room or accommodation for the occasional passengers. Nor would that difficulty be obviated by attaching to each train coaches for use at the way stations. Such additional coaches would impede the speed of the through trains and interfere with the business of the local trains.

In Wabash, St. L. & P. Railway Company

v. Illinois, it was said, replying to the argu- | regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at any station, city, or village of three thousand inhabitants, for a time sufficient to receive and let off passengers, so far from be ing unreasonable, will subserve the public convenience."

ment that the state statute applied in terms
only to transportation within the state:
"Whatever may be the instrumentalities by
which this transportation from the one point
to the other is effected, it is but one voyage,
as much so as that of the steamboat on the
Mississippi river. It is not the railroads
themselves that are regulated by this act of
the Illinois legislature so much as the charge
for transportation, and if each one of the
states through whose territories these goods
are transported can fix its own rules for
prices, for modes of transit, for times and
modes of delivery, and all the other incidents
of transportation to which the word 'regu-
lation' can be applied, it is readily seen that
the embarrassments upon interstate trans-
portation, as an element of interstate com-
merce, might be too oppressive to be submit-
ted to.
As restricted to a transporta-
tion which begins and ends within the limits
of the state, it, the regulation, may be very
just and equitable, and it certainly is the
province of the state legislature to determine
that question. But when it is attempted to
apply to transportation through an entire
series a principle of this kind, and each one
of the states shall attempt to establish its
own rates of transportation, its own meth-
ods to prevent discrimination in freights, or
to permit it, the deleterious influence upon
the freedom of commerce among the states
and upon the transit of goods through those
states cannot be overestimated."

In Illinois Central R. R. Co. v. Illinois, [331]stress was justly laid on the manifest purpose of Congress to establish a 1ailroad in the center of the continent, connecting the waters of the Great Lakes with those of the Gulf of Mexico, for the benefit of interstate commerce, as well as of the military and postal departments of the government.

But the question of the reasonableness of a public statute is never open to the courts. It was not open even to the supreme court of the state of Ohio to say whether the act in question was reasonable or otherwise. Much less does the power of the legislature of Ohio to pass an act regulating a railroad corporation depend upon the judgment or opinion of this court as to the reasonableness of such an act.

"In what has been said we have assumed that the statute is not in itself unreasonable. In our judgment this assumption is not unwarranted. The requirement that a railroad company whose road is operated within the state shall cause three, each way. of its

*And again: "It was for the state of Ohio[332] to take into consideration all the circumstances affecting passenger travel within its limits, and, as far as practicable, make such regulations as were just to all who might pass over the road in question. It was not bound to ignore the convenience of its own people, whether traveling on this road from one point to another within the state, or from places in the state to places beyond its limits, or the convenience of those outside the state who wished to come into it, and look only to the convenience of those who desired to pass through the state without stopping."

It was, I respectfully submit, just such action on the part of the state of Ohio, and just such reasoning made to support that action, that are forbidden by the Constitution of the United States and by the decisions of this court hereinbefore cited. If each and every state through which these interstate highways run could take into consideration all the circumstances affecting passenger travel within its limits, and make such regulations as, in the opinion of its legislature, are "just and for the convenience of its own people," then we should have restored the confusion that existed in commercial transactions before the adoption of the Constitution, and thus would be overruled those numerous decisions of this court nulli

A similar purpose has been manifested by Congress in the legislation hereinbefore referred to, by authorizing the formation of continuous lines of transportation, by creating a permanent commission to supervise the transactions of railroad companies so far as they affect interstate commerce, and by em-fying state legislation proceeding on such ploying such continuous and connecting roads for the transportation of its mails, troops, and supplies.

These views by no means result in justifying the railroad company defendant in failing to supply the towns and villages through which it passes with trains adequate and proper to transact local business. Such failure is not alleged in this case, nor found to be a fact by the trial court. And if the fact were otherwise, the remedy must be found in suitable legislation or legal proceedings, not in an enactment to convert through into local trains.

Some observations may be ventured on the reasoning employed in the opinion of the court. It is said:


Again it is said:

the state and the corporation created by it
"Any other view of the relations between
ation could manage its affairs solely with
would mean that the directors of the corpor-
reference to the interests of stockholders, and
without taking into consideration the in-
terests of the general public. It would mean,
not only that such directors were the exclu
sive judges of the manner in which the cor-
poration should discharge the duties imposed
upon it in the interest of the public, but that
the corporation, by reason of being engaged
in interstate commerce, could build up cities
and towns at the ends of its line, or at fa-
vored points, and by that means destroy or
retard the growth and prosperity of inter-
vening points. It would mean that the de-
fendant railway company could, beyond the
power of the state to prevent it, run all of[333)
its trains through the state without stop-

[blocks in formation]

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.,




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


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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