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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

a

did not on said 9th day of October, 1890: |tained in the "Act to Regulate Commerce," nor shortly prior thereto, or since, up to the approved February 4, 1887, creating the Intime of the commencement of this suit, run terstate Commerce Commission. daily, both ways or either way, over said *The theory on which passenger trains to(329) road through the village of West: Cleveland, traverse several states, or the entire conti. three regular trains nor more than one regu- nent, are prepared, is necessarily and widelar train each, carrying passengers, which ly different from that followed in making up were not engaged in interstate commerce, ordinary trains to do a wayside business. and that did not have upon them passengers There must be provision for sleeping at who had paid through fare, and were enti. night and for furnishing meals. In order tled to ride on said trains going in the one that each and every passenger may receive direction from the city of Chicago to the city the accommodation for which he pays, the of Buffalo, and those going in the other di- seats are sold in advance and with reference rection from the city of Buffalo through said to the number of through passengers. To states to the city of Chicago; that on or enable such trains to maintain the speed de about the said day the defendant operated manded, the number of the cars for each but one regular train carrying passengers train must be limited, and they are adver. each way, that was not engaged in carrying tised and known as "limited” trains. A such through passengers; and said train did traveler purchasing tickets on such trains stop at West Cleveland, on the day afore- has a right to expect that he will be carried said, for a time sufficient to receive and let to his journey's end in the shortest possible

off passengers; that the through trains that time consistent with safety. The railroad 1828)passed through West Cleveland *on the said companies compete for business by holding

day were train No. 1, limited express with out that they run the fastest trains and two express cars, one coach, and three sleep-those most certain to arrive on time. A ers, from New York to Chicago; train No. company which by its own regulations or 11, fast mail, with five United States mail under coercion of a state legislature, stopped cars, one coach, and sleeper, from New York its through trains at every village, would to Chicago; train No. 21 had one United soon lose its through business, to the loss of States mail car, two baggage and express the company and the detriment of the travel. cars, four coaches, and one sleeper, from ing public. Cleveland to Chicago (these were western Nor must the necessity of the speedy tran. trains); that the eastern trains were limit sit of the United States mails be overlooked. ed express No. 4, with one baggage and ex. The government has not thought fit to build press car and three sleepers, from Chicago to and operate railroads over which to transNew York; train No. 6, with one baggage port its mails, but relies upon the use of and express car, three coaches, and two roads owned by state corporations operating sleepers, from Chicago to New York; train connecting roads. And it appears, from the No. 24, with one United States mail, two findings in this case, that the defendant's baggage and express cars, and seven coaches, through trains are engaged by the governfrom Chicago to Buffalo; train No. 14, with ment in the transportation of its mails. The three United States mail cars and one sleeper business, public and private, that depends from Chicago to New York. That the aver- on hourly and daily communication by mail, age time of delay necessarily required to is enormous, and it would be intolerable if stop, a train of cars and sufficient time to such necessary rapidity of intercourse could receive and let off passengers would be three be controlled and trammeled by legislation minutes; and that the number of cities and like that in question. villages in the state of Ohio, containing It was pointed out in Hall v. De Cuir that, three thousand inhabitants each, through although the statute of Louisiana, which which the aforesaid trains of the defendant sought to regulate the manner in which passed on said day, were thirteen."

white and colored passengers should be carIt is, therefore, a conceded fact in the case ried, was restricted by its own terms to the that the through trains which the legisla- limits of the state, yet that such regulation ture of Ohio seeks to compel to stop at pre- necessarily affected steamboats running scribed villages and towns in that state are through and beyond the state, because such engaged in carrying on interstate commerce regulations might change at every state by the transportation of freight and passen- line. gers. It is obvious, further, that such *A similar but much greater inconvenience[380) trains are within section 5258 of the Re- would be occasioned by attempting by state vised Statutes of the United States, author- legislation to interfere with the movements izing such railroad companies “to carry up. of through trains. If, for instance, and as on and over its road, boats, bridges, and fer- is often the case, the through trains were ries, all passengers, troops, government sup- full of through passengers, there would be do plies, mails, freight, and property on their advantage to local travel for them to stop at way from any state to another state, and to the way stations, for there would be no room receive compensation therefor, and to con- or accommodation for the occasional passennect with roads of other states so as to form gers. Nor would that difficulty be obviated continuous lines for the transportation of by attaching to each train coaches for use at the same to the place of destination.” the way stations. Such additional coaches

It is also plain that the defendant rail. would impede the speed of the through road company and such of its trains as were trains and interfere with the business of the engaged in interstate commerce are within local trains. the scope and subject to the regulations con- In Wabash, St. L. de P. Railway Company

!

v. Illinois, it was said, replying to the argu- | regular trains carrying passengers, if so
ment that the state statute applied in terms many are run daily, Sundays excepted, to
only to transportation within the state: stop at any station, city, or village of three
"Whatever may be the instrumentalities by thousand inhabitants, for a time sufficient to
which this transportation from the one point receive and let off passengers, so tar from be
to the other is effected, it is but one voyage, ing unreasonable, will subserve the public
as much so as that of the steamboat on the convenience.”
Mississippi river. It is not the railroads But the question of the reasonableness
themselves that are regulated by this act of of a public statute is never open to the
the Illinois legislature so much as the charge courts. It was not open even to the supreme
for transportation, and if each one of the court of the state of Ohio to say whether the
states through whose territories these goods act in question was reasonable or otherwise.
are transported can fix its own rules for Much less does the power of the legislature
prices, for modes of transit, for times and of Ohio to pass an act regulating a railroad
modes of delivery, and all the other incidents corporation depend upon the judgment or
of transportation to which the word 'regu- opinion of this court as to the reasonable-
lation can be applied, it is readily seen that ness of such an act.
the embarrassments upon interstate trans- *And again: “It was for the state of Ohio[332)
portation, as an element of interstate com- to take into consideration all the circum-
merce, might be too oppressive to be submit- stances affecting passenger travel within its
ted to. As restricted to a transporta- limits, and, as far as practicable, make such
tion which begins and ends within the limits regulations as were just to all who might
of the state, it, the regulation, may be very pass over the road in question. It was not
just and equitable, and it certainly is the bound to ignore the convenience of its own
province of the state legislature to determine people, whether traveling on this road from
that question. But when it is attempted to one point to another within the state, or
apply to transportation through an entire from places in the state to places beyond its
series a principle this kind, and each one limits, or the convenience of those outside
of the states shall attempt to establish its the state who wished to come into it, and
own rates of transportation, its own meth- look only to the convenience of those who
ods to prevent discrimination in freights, or desired to pass through the state without
to permit it, the deleterious influence upon stopping."
the freedom of commerce among the states It was, I respectfully submit, just such
and upon the transit of goods through those action on the part of the state of Ohio, and
states cannot be overestimated."

just such reasoning made to support that In Illinois Central R. R. Co. v. Illinois, action, that are forbidden by the Constitu(331]stress was justly *laid on the manifest pur- tion of the United States and by the deci.

pose of Congress to establish a zailroad in sions of this court hereinbefore cited. If the center of the continent, connecting the each and every state through which these waters of the Great Lakes with those of the interstate highways run could take into conGulf of Mexico, for the benefit of interstate sideration all the circumstances affecting commerce, as well as of the military and passenger travel within its limits, and make postal departments of the government. such regulations as, in the opinion of its leg.

A similar purpose has been manifested by islature, are “just and for the convenience
Congress in the legislation hereinbefore re- of its own people," then we should have re-
ferred to, by authorizing the formation of stored the confusion that existed in commer.
continuous lines of transportation, by creat-cial transactions before the adoption of the
ing a permanent commission to supervise the Constitution, and thus would be overruled
transactions of railroad companies so far as those numerous decisions of this court nulli-
they affect interstate commerce, and by em-fying state legislation proceeding on such
ploying such continuous and connecting propositions.
roads for the transportation of its mails,
troops, and supplies.

Again it is said:
These views by no means result in justi- the state and the corporation created by it

"Any other view of the relations between
fying the railroad company defendant in
failing to supply the towns and villages ation could manage its affairs solely with

would mean that the directors of the corporthrough which it passes with trains ade- reference to the interests of stockholders, and quate and pr per to transact local business. Such failure is not alleged in this caue, nor

without taking into consideration the infound to be a fact by the trial court. "And terests of the general public. It would mean, if the fact were otherwise, the remedy must not only that such directors were the exclu. be found in suitable legislation or legal pro- sive judges of the manner in which the cor. ceedings, not in an enactment to convert poration should discharge the duties imposed through into local trains.

upon it in the interest of the public, but that Some observations may be ventured on the the corporation, by reason of being engaged reasoning employed in the opinion of the in interstate commerce, could build up cities court. It is said:

and towns at the ends of its line, or at fan "In what has been said we have assumed vored points, and by that means destroy or that the statute is not in itself unreasonable. retard the growth and prosperity of interIn our judgment this assumption is not un vening points. It would mean that the de. warranted. The requirement that a rail. fendant railway company could, beyond the road company whose road is operated within *power of the state to prevent it, run all of[338) the state shall cause three, each way, of its lits trains through the state without stor.

ping at any city within its limits, however Attention is called to the fact that in the numerous the population of such cities.” cases of Hall v. De Cuir, Wabash, St. L. & P.

I am unable to perceive, in the views that Railway Company v. Illinois, and Illinois C. prevailed in the Louisiana and Illinois cases, R. R. Company v. Illinois, there were no speany foundation whatever for such observa- cific regulations by Congress as to providing tions. In those cases it was expressly con- separate accommodations for white and ceded that, in the regulation of commerce black passengers, as to rates of freight to be within the state and in respect to the man- charged on interstate commerce, or as to agement of trains so engaged, the authority stopping through trains at prescribed of the state legislature is supreme. And in places; yet legislation by the states on those the argument in behalf of the defendant subjects was held void by this court as a tres. company in this case a similar admission is pass on the field of interstate commerce. made.

“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 Onio, 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 ex. based 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 re- Justices Brewer, White, and Peokhan sults in measures detrimental to the inter concur in this dissent. ests of the greater public, and hence it is that the people of the United States have, by Mr. Justice White dissenting: 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, providopiņion of the majority, to the contention ing for the local convenience of its inhabithat the power of Congress over the regula- tants. On this hypothesis the statute is tion of interstate commerce is not exclusive, held valid, although it is conceded that it by the observation that “the plaintiff in er. indirectly touches interstate commerce and ror accepted its charter subject necessarily remotely imposes a burden thereon. To my to the condition that it would conform to mind the Ohio statute, however, does not such reasonable regulations as the state come within the purview of the reasoning might, from time to time, establish, that advanced to support it, and therefore such were not in violation of the supreme law of considerations become irrelevant, and it is the land. In the absence of legislation by unnecessary to form any judgment as to Congress, it wou be going very far to hold their correctness. that such an enactment as the one before us

My conception of the statute is that it imis in itself a regulation of interstate com- poses, under the guise of a police regulation merce when applied to trains carrying pas. for local convenience, a direct burden on insengers from one state to another."

terstate commerce, and, besides, expressly (334] *But it has already been shown that Con- discriminates against such commerce, and

gress has legislated expressly in relation to therefore it is in conflict with the Constituinterstate trains and railroads, has made tion, even by applying the rules laid down rules and regulations for their control, and in the authorities which are relied on as uphas established a tribunal to make other holding its validity. Now, what does the rules and regulations.

statute provide? Does it require all railBesides, as was observed by Mr. Webster, roads within the state to operate a given in his argument in Gibbons v. Ogden, 9 number of local trains and to stop them at Wheat. 17 (6: 27] :

designated points? Not at all. It com"The state may legislate, it is said, when- mands railroads, if they run three trains a ever Congress has not made a plenary exer- day, to cause at least three of such trains to cise of its power. But who is to judge be local trains, by compelling them to stop whether Congress has made this plenary ex- such trains at the places which the statute crcise of power? It has done all that it mentions. It follows, then, that under the deemed wise; and are the states now to do statute one railroad operating in the state whatever Congress has left undone? Con. may be required to run only one local train gress makes such rules as in its judgment a day and to stop such train, as the statute the case requires, and those rules, whatever requires, and another railroad reaching er. they are, constitute the system. All useful actly the same territory and passing the regulations do not consist in restraint; and same places may be required to operate three that which Congress sees fit to le ree is trains a day and make the exacted stops a part of the regulation as much as the with each of such trains. That is to say, rest."

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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