v. Illinois, it was said, replying to the argu-
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.

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 being unreasonable, will subserve the public convenience."

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.

*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 deci sions 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 commer

A similar purpose has been manifested by Congress in the legislation hereinbefore referred to, by authorizing the formation of continuous lines of transportation, by creat-cial transactions before the adoption of the ing a permanent commission to supervise the transactions of railroad companies so far as they affect interstate commerce, and by employing 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:

"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

Constitution, and thus would be overruled those numerous decisions of this court nullifying state legislation proceeding on such propositions.

Again it is said:

the state and the corporation created by it "Any other view of the relations between would mean that the directors of the corporation could manage its affairs solely with reference to the interests of stockholders, and without taking into consideration the interests of the general public. It would mean, not only that such directors were the exclu sive judges of the manner in which the corporation 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 intervening points. It would mean that the defendant railway company could, beyond the power of the state to prevent it, run all of[333] its trains through the state without stop

ping at any city within its limits, however
numerous the population of such cities."

I am unable to perceive, in the views that prevailed in the Louisiana and Illinois cases, any foundation whatever for such observations. In those cases it was expressly conceded that, in the regulation of commerce within the state and in respect to the management of trains so engaged, the authority of the state legislature is supreme. And in the argument in behalf of the defendant company in this case a similar admission is made.

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.

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

Mr. Justice White dissenting:

"The power of Congress to regulate comIt is fallacious, as I think, to contend that merce among the several states when the the Ohio legislation in question was enacted subjects of that power are national in their to promote the public interest. That can nature is also exclusive. The Constitution only mean the public interest of the state of does not provide that interstate commerce Ohio, and the reason why such legislation shall be free, but, by the grant of this excluis pernicious and unsafe is because it is sive power to regulate it, it was left free exbased upon a discrimination in favor of lo- cept as Congress might impose restraint. cal interests, and is hostile to the larger Therefore it has been determined that the public interest and convenience involved in failure of Congress to exercise this exclusive interstate commerce. Practically there may power in any case is an expression of its will be no real or considerable conflict between that the subject shall be free from restricthe public interest that is local and that tions or impositions upon it by the several which is general. But, as the state legisla-states." Re Rahrer, 140 U. S. 545 [35: 572]. tures 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, The statute is held not to be repugnant to removed the control and regulation of inter- the Constitution of the United States, bestate commerce from the state legislatures. cause it is assumed to be but an exercise of[335] Countenance seems to be given, in the the lawful police power of the state, providopinion of the majority, to the contentioning for the local convenience of its inhabithat 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, whenever 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."

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tants. 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

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 Ohio 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.

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.


refuses the conclusion that the law directly
considers local convenience, and only indi-
rectly and remotely affects interstate com-
merce, when the reverse, it seems to me, is
patent on the face of the statute.
The re-
pugnancy of the statute to the Constitution
of the United States is shown by the princi-
ple decided by this court in Osborne v. Flor-
ida, 164 U. Š. 650 [41: 586]. In that case
the state of Florida imposed a license on the
business of express companies. In constru-
ing the statute the supreme court of the
state held that it applied only to business
done solely within the state, and not to busi-
ness 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 mani-
festly the case if, for the purpose of taxa-
tion, the state had taken into consideration
the whole volume of business, including that
of an interstate character. Now, if a tax-
ing law of a state is repugnant to the Con-
stitution because it operates upon the whole
volume of business, both state and inter-
state, a law of the character of that now un-
der 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.


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.



[No. 119.]

Where the statute requires a bond to be ex-person or persons when the labor of the in-
ecuted before a contract with a public officer mates of said institution is required upon
shall be enforceable, such officer cannot be any buildings or properties of the aforesaid
compelled by mandamus to perform the con- institutions and no lease or contract shall be
tract, until the bond required by the stat- made that will obligate the territory to
ate has been given.
furnish tools, machinery or money, or make
other expenditure other than the labor of
the inmates, properly clothed and fed, and
the use of the property, buildings, and lands
heretofore mentioned; provided, that no con-
tract or lease shall be made to extend for a
term of more than ten years from the time
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 prison-
ers or inmates. A good and sufficient bond
must be given by the person or persons leas
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.

Argued and Submitted January 10, 11, 1899. the proper guards for same, together with
Decided February 20, 1899.

APPEAL from a judgment of the Supreme
Court of the Territory of Arizona affirm-
ing 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 Com-
pany, 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 labor-
ers. 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. Chal-
mers 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 ac

quired. 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 here-
after be acquired for the purpose of furnish-
ing employment for the inmates of the said
territorial prison and the said territorial re-
form school. The said board shall have the
authority to contract with a responsible per-
son or persons to furnish the labor of the in-
mates now within the said reform school or
said prison, or that may hereafter be con-
fined 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

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

"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;


also all the labor of

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 territory, such removal will in no way, manner, shape, or form interfere with the conditions, stipulations, and covenants of this contract and lease.

"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 second 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.

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"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

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 writing 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

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