1

1

local interest may exist as to the two roads, / refuses the conclusion that the law directly upon one is imposed a threefold heavier bur considers local convenience, and only indi. den than upon the other. That this result rectly and remotely affects interstate comof the statute is a discrimination it seems merce, when the reverse, it seems to me, is to me, in reason, is beyond question. If, patent on the face of the statute. The rethen, the discrimination is certain, the only pugnancy of the statute to the Constitution question which remains is, Is it a discrimi. of the United States is shown by the princination against interstate commerce? If it ple decided by this court in Osborne v. Floris, confessedly the statute is repugnant to ida, 164 U. Š. 650 [41: 586]. In that case the Constitution of the United States. the state of Florida imposed a license on the Whence, then, does the discrimination arise business of express companies. In construand upon what does it operate? It arises ing the statute the supreme court of the alone from the fact that the statute bases state held that it applied only to business

its requirement, not upon the demands of done solely within the state, and not to busi36]local convenience, *but upon the volume of ness interstate in its character. This court,

business done by the road, since it requires in reviewing and affirming the decision of the
the road operating three trains to stop three state court, said that as construed by the
as local trains, and the road operating one Florida court the statute was not repugnant
train to stop only one. But the number of to the Constitution, because it applied to
trains operated is necessarily dependent up- business done solely within the state, and
on the amount of business done, and the that the contrary would have been mani.
amount of business embraces interstate festly the case if, for the purpose of taxa-
commerce as well as local business. But tion, the state had taken into consideration
making the number of local trains depend the whole volume of business, including that
ent upon the volume of business is but to of an interstate character. Now, if à tax-
say that if a railroad has enough interstate ing law of a state is repugnant to the Con.
business, besides its local business, to cause stitution because it operates upon the whole
it to run one local and two interstate com volume of business, both state and inter-
merce trains cach way each day, the in- state, a law of the character of that now un.
creased trains thus required for the essential der consideration, which operates upon the
purposes of interstate commerce shall be lo- whole volume of business of a railroad, state
cal trains, while another railroad which has and interstate, is equally repugnant to the
no interstate commerce, but only local busi. Constitution of the United States.
ness requiring but one train a day, shall con. Whether in the enactment of the statute :
tinue only to operate the one local train. it was intended to discriminate is not the

While the power of the state of Ohio to question, for, whatever may have been the
direct all the railroads within its territory to intention of the lawmaker, if the necessary
operate a sufficient number of local trains effect of the criterion established by the law
to meet the convenience of the inhabitants is to cause its enforcement to produce an un-
of the state may be, arguendo, conceded, -al- lawful discrimination against interstate
though such question does not arise in this commerce by imposing a greater burden on
case, and is not, therefore, necessary, in my the roads engaged in such commerce than up-
opinion, to be decided,—that state cannot, on other roads which do a purely local busi-
without doing violence to the commerce ness, the statute is, I think, repugnant to
clause of the Constitution of the United the Constitution of the United States, and
States, impose upon the railroads operating should not be upheld.
within its borders a burden based, not upon For these reasons, without mearing to im-
local convenience, but upon the amount of ply that I do not assent to the conclusions
interstate commerce business which the stated by my brethren who have also, *on (338)
roads may do, thereby causing every inter- other grounds, dissented, I prefer to place
state commerce railroad to have a burden my dissent on what seems to me the discrim-
resting upon it entirely disproportioned to ination which the statute inevitably creates.
local convenience, and greatly more onerous
than that resting upon roads doing a local
business, and which have not a sufficient in.
terstate business to compel them to operate M. J. NUGENT, Superintendent of the Terri.
three trains. To answer this reasoning by torial Prison of the Territory of Arizona,
saying that the statute does not compel Appt.,
roads to operate the three trains and stop
them, since it only compels them to stop them

STATE OF ARIZONA IMPROVEMENT if they operate them, is to admit the dis

COMPANY. crimination, and to state the fact that the duty is not made by the statute dependent

(See S. C. Reporter's ed. 338-347.) upon the local convenience, but upon the whole polume of business, which of course, there. Evidence of execution of a bond---mandamus fore, includes interstate commerce business.

against public officer. As the statute makes its exaction depend, 137]not upon a rule by which the local wants are 1. Where a case was heard upon the pleadings ascertained and supplied, but upon the busi

without any evidence except a written con.

tract between the parties, a recital in the conness done, it therefore directly operates up

tract that a certain bond was executed is not on the volume of business, and only indirect

evidence of its execution sufficient to overly considers the possible local convenience.

come an averment in the answer that the bond Under a law which thus proceeds, my mind was not executed. 173 U. S. U. S., BOOK 43. 46

721

nually include such estimates in his esti. | diers, incorporated under said act, in and
mates for his department. And no moneys over said territory."
shall, after the first day of April, 1875, be Upon these facts the appellee was convicted
drawn from the Treasury for the use of said by the magistrate before whom he was tried,
home, except in pursuance of quarterly es- and was sentenced to pay a fine of $50, and
timates, and upon quarterly requisitions by to be imprisoned until such fine was paid.
the managers thereof upon the Secretary of He refused to pay the fine, and applied to
War, based upon such quarterly estimates, the circuit court of the United States for the
for the support of said home, for not more southern district of Ohio, western division,
than three months next succeeding such for a writ of habeas corpus, on the ground
requisition.

And the managers of that the state tribunal before which he was said home shall, at the commencement of tried had no jurisdiction to try him. The each quarter of the year, render the Secre-writ was granted and the constable made retary of War an account of all their receipts turn thereto, setting up that he held appellee and expenditures for the quarter immediate under the mittimus from the justice of the ly preceding, with vouchers for such expen- peace before whom he was tried. Upon the ditures; and all such accounts and vouchers hearing the court made an order discharging shall be authenticated by the officers of said appellee. 82 Fed. Rep. 304. The state appealed home thereunto duly appointed by said man- from that order to the circuit court of apagers, and audited and allowed as required peals for the sixth *circuit, where it was af.[281) by law for the general appropriations and firmed (58 U. S. App. 431, 87 Fed. Rep. expenditures of the War Department." 453), and the state then appealed to this

By the act (chapter 902) approved August court. 4, 1886 (24 Stat. at L. 222, at 251), it was also provided that "hereafter the estimates Messrs. Charles H. Bosler and Otto J. for the support of the Home for Disabled Renner for appellant. Volunteer Soldiers shall be submitted Messrs. Judson Harmon and D. W. Bowby

items.” Also by the act (chapter man for appellee. 1069) approved October 2, 1888 (25 Stat. at L. 505, at 543), it was "Provided *Mr. Justice Peckham, after stating the[281) further, That it shall be the duty facts, delivered the opinion of the curt: of the managers of said home, on or before The act of the legislature of the state of the first day of October in each year to fur-Ohio, passed May 16, 1868, ceaing jurisdicnish to the Secretary of War estimates, in tion to the United States, if it had remained detail, for the support of said home for the in force would have prevented the state offiscal year commercing on the first day of ficials from taking jurisdiction in this case. July thereafter, and the Secretary of War Congress, however, by the act of January 21, shall annually include such estimates in his 1871, ceded back and relinquished the juris. estimates for his department.” Also by the diction that had been granted, and provided

act (chapter_420) approved June 11, 1896 that it would claim or exercise no jurisdic[280](29 Stat. at L. 413, at 445), an *appropria- ti n thereafter, except as therein mentioned.

tion was made for the support of the home If we assume, what the state court decidat Dayton, Ohio, and for “the cost of all ed, that the provisions of the state statuto articles purchased for the regular ration, relating to the sale of oleomargarine were in. their freight, preparation, and serving." tended to apply to and cover the soldiers'

The material portions of the acts of March home, the question then arises whether the 3, 1865, and March 21, 1866, have been en state had the power to legislate so as to con. acted in the Revised Statutes of the United trol the governor of the home, acting under States, being sections 4825 to 4837, both in the direction of the board of managers and clusive.

by the authority of Congress, in regard to On the third of April, 1867, the legisla- the internal administration of the affairs of ture of the state of Ohio passed an act ceding the home, and in respect to the conditions jurisdiction to the United States over the upon which an article of food might be prolands and their appurtenances within the vided by the governor under such directions state of Ohio, which might be acquired by and authority. donation or purchase by the managers of The home is a Federal creation, and is unthe National Asylum for Disabled Volunteer der the direct and sole jurisdiction of ConSoldiers within the state of Ohio, for the gress. The board of managers have certain uses and purposes of the asylumn.

powers granted them (Rev. Stat. § 4825), By the act, chapter 24, approved January and among other things to make by-laws, 21, 1871 (16 Stat. at L. 399), Congress rules, and regulations not inconsistent with ceded back to the state of Ohio jurisdiction law for carrying on the business and governover the place named, and relinquished such ment of the home. jurisdiction on the part of the United States, home are "officers and soldiers who served

The persons entitled to the benefits of the and the act contained the following: “And in the late war for the suppression of the the United States shall claim or exercise no rebellion," and also other soldiers and sail-, jurisdiction over said place after the passage

The inmates *are subject to the rules[282) of this act: Provided, That nothing con- and articles of war, the same as if they were tained in this act shall be construed to im- in the army. Rev. Stat. $$ 4832, 4835. pair the powers and rights heretofore con- Under the statutes above cited, in which it ferred upon the board of managers of the is provided that the board of managers shall National Asylum for Disabled Volunteer Sol- ' furnish to the Secretary of War, in each year,

estimates, in detail, for the support of the land, in opposition to the language of the act home for the succeeding fiscal year, it would of Congress ceding back the jurisdiction the naturally be the duty of the governor of each United States received from the state. The home, in order to enable the board of man government is but claiming that its own ofagers to perform their own duty, to report ficers, when discharging duties under Federto the board the same kind of detailed esti al authority pursuant to and by virtue of mates that the board is by law directed to valid Federal laws, are not subject to arrest report to the Secretary of War, and which or other liability under the laws of the state are to be included by the Secretary in the in which their duties are performed. estimates for his department. At all events, The claim is made that neither the board the duty is laid upon the board of managers, of managers nor the governor of the home by the very terms of the statute, to make can, through their officers or by himself, viothese estimates in detail. It is admitted in late the statute law of a state having juthe record that the oleomargarine com risdiction, when the acts constituting the plained about herein was served and fur- infringement are not necessary for the gove nished by the appellee as food and as part ernment and management of the home for of the rations furnished the inmates under the purposes for which it was incorporated, the appropriations made by Congress for the or authorized by any act of the United support of such inmates.

States, From these facts the inference is plain This claim might be conceded and still the that oleomargarine had been included in the conviction of the appellee would be invalid, detailed estimates for rations to be furnished because we find in this record the authority the inmates, and that the appropriation for of the United States for the act of the gov. rations included oleomargarine as part there. ernor. The statutes above referred to, when of. Otherwise we should have to infer a taken in connection with the admitted facts, dereliction of duty on the part of the board of show an appropriation by Congress for the*[284 managers in not making out estimates in de purchase of oleomargarine as part of the reg. tail, and we should adopt an inference con- ular rations of the inmates of the home. The trary to the admission, which states that the act of the governor in serving it was author. oleomargarine was furnished as food under | ized by Congress, and it was therefore legal, an appropriation of Congress. The appropria- j any act of the state to the contrary notwithtion does not precede the detailed estimates, standing. but is made subsequently and is presumably Under the facts herein the state court had enacted with reference thereto. Congress no jurisdiction to try the appellee for the has therefore in effect provided oleomarga- offense charged in the written complaint rine as part of the rations for the inmates made to the magistrate. See authorities of the home. It is given them in the mess cited in Re Waite, 81 Fed. Rep. 359. room of the institution and under the rules Assuming, in accordance with the decision and regulations for feeding them there. In of the state court, the act of the Ohio legmaking provision for so feeding the inmates, islature applies in its terms to the soldiers' the governor, under the direction of the home at Dayton, in that state, we are of board of managers and with the assent and opinion that the governor was not subject approval of Congress, is engaged in the inter- to that law, and the court had no jurisdicnal administration of a Federal institution, tion to hear or determine the criminal and we think a state legislature has no con- prosecution in question, because the act comstitutional power to interfere with such man- plained of was performed as part of the duty agement as is provided by Congress.

of the governor as a Federal officer, in and [283] *Whatever jurisdiction the state may have by virtue of valid Federal authority, and in

over the place or ground where the institu- the performance of that duty he was not tion is located, it can have none to interfere subject to the direction or control of the leg. with the provision made by Congress for fur islature of Ohio. nishing food to the inmates of the home, nor The authorities cited in the case of Re has it power to prohibit or regulate the fur- Waite, supra, and those cited by the learned nishing of any article of food which is ap- circuit judge in this case, fully support the proved by the officers of the home, by the view we have taken herein. The cases of board of inanagers, and by Congress. Under l'ennessee v. Davis, 100 U. S. 257 [25: 648], such circumstances the police power of the Ex parte Siebold, 100 U. S. 371, 394, 395 state has no application.

[25: 717, 725), Re Loney, 134 U. S. 372 [33: We mean by this statement to say that 949), Re Neagle, 135 U. S. 1 [34: 55), all Federal officers who are discharging their concur in upholding the paramount author. duties in a state and who are engaged, as ity of the Federal government under circumthis appellee was engaged, in superintending stances similar, in effect, to those set forth the internal government and management of in this record. a Federal institution, under the lawful di- Some of the same authorities also show rection of its board of managers and with that this is one of the cases where it is propthe approval of Congress are not subject to er to issue a writ of habeas corpus from the the jurisdiction of the state in regard to Federal court, instead of awaiting the slow those very matters of administration which process of a writ of error from this court to are thus approved by Federal authority. the highest court of the state where a de

In asserting that this officer under such cision could be had. One of the grounds for circumstances is exempt from the state law, making such a case as this an exception to the United States are not thereby claiming the general rule laid down in Ex parte Royall, jurisdiction over this particular piece of 117 U. S. 241 [29: 868],Whitten v. T'om

commerce.

linson, 160 U. S. 231 [40: 406), and Baker v. appropriate legislation to protect the publle Grice, 169 U. S. 284 [42: 748], consists in health, the public morals, or the public safety. the fact that the Federal officer proceeded 4. The Ohio statute (Ohio Laws 1889, p. 291, against in the courts of the state may, upon

Rev. Stat. 1890, $ 3220) requiring each conviction, be imprisoned as a means of en

railroad company whose road is operated

within the state to cause three, each way, of forcing the sentence of a fine, and thus the

its regular trains carrying passengers, if so operations of the Federal government might

many are run daily, Sundays excepted, to (285]in the meantime be *obstructed. This is

stop at a station, city, or village containing such a case. In Ex parte Royall it was over 3,000 inhabitants, long enough to receive stated by Mr. Justice Harlan, in naming and let off passengers, is for the public consome of the exceptions to the general rule venience, and is not a regulation of interthere laid down, that "when the petitioner state commerce and unconstitutional when apis in custody by state authority for an act

plied to the trains of a corporation of the done or omitted to be done in pursuance of a

state engaged in such commerce. law of the United States, or of an order, proc

5. Such railroad accepted its charter subject ess, or decree of a court or judge thereof;

to the condition that it would conform to sucb

reasonable state regulations as were for the or where, being a subject or citizen of a for

public interest and not in violation of the sueign state, and domiciled therein, he is in

preme law of the land. custody, under like authority, for an act

6. State legislation relating to commerce is done or omitted under any alleged right, title, not to be deemed a regulation of interstate authority, privilege, protection, or exemp- commerce simply because it may, to some extion claimed under the commission or order tent or under some circumstances, affect such or sanction of any foreign state, or under color thereof, the validity and effect whereof 7. U. S. Rev. Stat. § 5258, authorizing railroad depend upon the law of nations,-in such companies to carry government supplies, and like cases of urgency, involving the au

mails, etc., from one state to another, does thority and operations of the general govern

not prevent the state from enacting such reg.

ulations, with respect, at least, to a railroad ment, or the obligations of this country to or

corporation of its own creation, as are not din its relations with foreign nations, the courts rected against interstate commerce, and awe of the United States have frequently inter- not regulations thereof, but only incidentalis posed by writs of habeas corpus and dis. or remotely affect it, and are designed to pro charged prisoners who were held in custody mote the public convenience. under state authority.” For the reasons herein given we think the

(No. 95.] order of the Circuit Court of Appeals, af: Argued December 13, 1898. Decided Februfirming the Circuit Court, was right, and it

ary 20, 1899. must be affirmed.

IN ERROR to the Supreme Court of the The Chief Justice took no part in the consideration or decision of this case.

that court affirming the judgment of the Cir. cuit Court of Cuyahoga County, Ohio, affirming the judgment of the court of

common pleas of said county against LAKE SHORE & MICHIGAN SOUTHERN the Lake Shore & Michigan Southern RAILWAY COMPANY, Piff. in Err., Railway Company for the amount of the

penalty prescribed by Ohio Rev. Stat. $ STATE OF OHIO, es rel. GEORGE L. 3320, requiring railroad companies to stop I.AWRENCE.

three, each way, of its regular passenger

trains, if so many are run daily, Sundays (See S. C. Reporter's ed. 285–338.) excepted, at a station, city, or village, of over

3,000 inhabitants, to receive and let off passPower of state to provide for the public con- engers,-in an action brought by the State

venience and public good-power of Con- of Ohio ex rel. George L. Lawrence for the
gress-grounds of power of a state to pro- recovery of such penalty. Affirmed.
vide for the public convenience-Ohio stat. For decision of the Circuit Court of Cuya-
ute requiring railroad trains to stop at hoga County, see 8 Ohio C. C. 220.
stations of over 3,000 inhabitants-condi- The facts are stated in the opinion.
tion of its charter--regulation of inter: Mr. George C. Greene for plaintiff in er-
state commerce-U. 8. Rev. stat. § 5258. ror.

Mr. W. H. Polhamus for defendant in 1. The power exists in each state by appro- error.

priate enactments not forbidden by its own
or the Federal Constitution, to regulate the *Mr. Justice Harlan delivered the opin (286)
relative rights and duties of all persons and ion of the court:
corporations within its jurisdiction so as to This action was commenced hefore a jus-
provide for the public convenience and the tice of the peace of the county of Cuyahoga,
public good.

Ohio, to recover the penalty prescribed by 2. When Congress acts with reference to a section 3320 of the Revised Statutes of that matter confided to it by the Federal Consti

state. tution, then its statutes displace all state regulations touching that matter.

That section is a part of a chapter relating 8. The power of the state by appropriate leg- to railroad companies, and, as amended by

Islation to provide for the public convenience the act of April 13th, 1889, provides :
stands upon the same grounds as its power by “Each company shall cause three, each

way, of its regular trains carrying passen- engers who had paid through fare, and gers, if so many are run daily, Sundays ex. were entitled to ride in said trains going in cepted, to stop at a. station, city, or village the one direction from the city of Chicago to containing over three thousand inhabitants, the city of Buffalo, through the states of Infor a time sufficient to receive and let off diana, Ohio, and Pennsylvania, and those gopassengers; if a company, or any agent or ing the other direction from the city of Bufemployee thereof, violate, or cause or per- falo

through said states to the city mit to be violated, this provision, such com- of Chicago.” pany, agent, or employee, shall be liable to a On or about the day named the company forfeiture of not more than one hundred nor operated but one regular train carrying passless than twenty-five dollars, to be recovered engers each way, that was not engaged in in an action in the name of the state, upon carrying such through passengers, and that the complaint of any person, before a jus- train did stop at West Cleveland on that day tice of the peace of the county in which the for a time sufficient to receive and let off violation occurs, for the benefit of the gen passengers. eral fund of the county; and in all cases in The through trains that passed westward

which a forfeiture occurs under the provi. ly through West Cleveland on the 9th day of (287]sions of this section *the company whose October, 1890, were a limited express train

agent or employee caused or permitted such having two baggage and express cars, one
violation shall be liable for the amount of passenger coach, and three sleepers, from
the forfeiture, and the conductor in charge of New York to Chicago; a fast mail train hav.
such train shall be held prima facie to have ing five mail cars, one passenger coach, and
caused the violation.” Laws of Ohio 1889, one sleeper, from New York to Chicago; and
vol. 86, p. 291; R. S. Ohio 1890, $ 3320. a train having one mail car, two baggage and

The case was removed for trial into the express cars, four passenger coaches, and one
court of common pleas of Cuyahoga county, sleeper, from Cleveland to Chicago. The
in which a judgment was rendered against trains running eastwardly on the same day
the railroad company for the sum of one hun- through West Cleveland were a limited ex-
dred dollars. Upon writ of error to the cir- press train having one baggage and express
cuit court of that county the judgment was car and three sleepers, from Chicago to New
affirmed, and the judgment of the latter York; a train having one baggage and ex-
court was affirmed by the supreme court of press car, three passenger coaches, and two
Ohio.

sleepers, from Chicago to New York; a train
The facts upon which the case was deter having one mail car, two baggage and ex-
mined in the state court were as follows: press cars, and seven passenger coaches, from

The plaintiff Lawrence is a resident of Chicago to Buffalo; and a train having three
West Cleveland, a muncipal corporation of mail cars and one sleeper, from Chicago to
Ohio having more than three thousand in New York.
habitants.

The average time required to stop a train
The defendant railway company is a cor- of cars and receive and let off passengers is
poration organized under the respective laws three minutes.
of Ohio, New York, Pennsylvania, Indiana, The number of villages in Ohio containing
Michigan, and Illinois, and owns and ope- three thousand inhabitants through which
rates a railroad located partly within the the above trains passed on the day named
village of West Cleveland. Its line extends were thirteen.
from Chicago through those states to Buf- The trial court found, as a conclusion of
falo.

law, that within the meaning of the Consti-
On the 9th day of October, 1890, as well tution of the United States the statute of
as for some time prior thereto and thereafter, Ohio was not a regulation of commerce
the company caused to run daily both ways an ong the states, and was valid until Con.
over its road within the limits of West Cleve- gress acted upon the subject. This general
land three or more regular trains carrying view was affirmed by the circuit court of(289)
passengers. And on that day (which was Cuyahoga county and by the supreme court
not Sunday) it did not stop or cause to be of Ohio.
stopped within that village more than one The plaintiff in error contends that, as
of such trains each way, long enough to re- the power to regulate interstate commerce is
ceive or let off passengers.

vested in Congress, the statute of Ohio in its On the day above named and after that application to trains engaged in such comdate the company was engaged in carrying merce is directly repugnant to the Constitu. both passengers and freight over its railroad, tion of the United States. from Chicago and other stations in Indiana In support of this contention it insists and Michigan, through each of said several that an interstate railroad carrier has the states, to and into New York, Pennsylvania, right to start its train at any point in one and Ohio and to Buffalo, and from Buffalo state, and pass into and through another through said states to Chicago. It did not state without taking up or setting down on that day, nor shortly prior thereto, nor up passengers within the limits of the latter to the commencement of the present suit, run state. As applied to the present case, that daily both ways, or either way, over said contention means that the defendant comroad through the village of West Cleveland, pany, although an Ohio corporation deriving three regular trains, nor more than one reg. all its franchises and privileges from that

ular train each way, carrying passengers state, may, if it so wills, deprive the people (288)“which were *not engaged in interstate com- along its line in Ohio of the benefits of inter

merce, or that did not have upon them pasg. state communication by its railroad: in