This bill was filed for the purpose of enjoining the bringing of actions in the state courts, in the name of the state, to recover penalties declared by the railroad com- [227 U.S. 456, 457] mission of the state for the violation of a statute requiring railroads to furnish cars upon the application of shippers, and forbidding discrimination between shippers in furnishing such cars.
The facts necessary to be stated are these:
Upon a complaint duly filed, and after a full hearing, the railroad commission of the state found that the railroad company had, during every day between September 20th and September 30th, 1907, inclusive, refused to furnish cars upon statutory notice and request of the operators of several coal companies operating along the line of its railroad in the state of Arkansas, and had also, during the same period, discriminated in favor of a coal company which it controlled, by furnishing it with an adequate supply of cars, although part of the coal so carried was for sale upon the market. The requests for cars so refused were for shipments from the mines within the state to destinations in the same state, and were not for the purpose of interstate transportation.
The bill charged that the railroad commission was about to transmit a transcript of its proceedings to the several state prosecuting attorneys in counties where the railroad was situated, with an order that action should be brought in the name of the state for the enforcement of the penalties, as provided by 11 and 18 of an act of the Arkansas legislature of March 11, 1899, being 6804, Kirby's Digest.
The bill alleges that, although engaged in operating a railroad within the state of Arkansas, the company's lines extended into adjacent states, and that it is therefore an interstate carrier, subject to the act of Congress of February 4, 1887 [24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. Supp. 1911, p. 1284], and its amendments. It charges that by an act of the legislature of the state of Arkansas passed April 19, 1907, the railroad commission of the state is vested with authority to regulate railroads within the state, in respect to the duty of [227 U.S. 456, 458] furnishing cars to shippers, and that it has, under that authority, promulgated order No. 346, which follows in phraseology the provisions of 1 of the act referred to. It is then contended that this act of April 19, 1907, and the order of the commission in pursuance of said 1st section, constitute an exertion of the power of the state over interstate commerce, and as such are invalid. It was averred that if the bringing of the threatened suits was not enjoined, complainant would be subjected to a multitude of actions and to a liability for the excessive penalties imposed by the 18th section of the act of 1899, being a minimum of not less than $500 for each offense, and a maximum of as much as $3,000.
The bill denied any liability under the act, even if valid, and presented various reasons why it had not supplied the cars requested.
Answer was filed and issue taken upon every material defense set up upon the merits. The cause was heard upon bill and answer, there being no evidence upon the matters of defense touching the merits of the case.
The circuit court held the entire act of April 19, 1907 to be null and void as an invalid invasion of the field of interstate commerce, and accordingly enjoined its enforcement and the bringing of the actions which the commission had ordered.
Mr. Hal L. Norwood, Attorney General of Arkansas, and Mr. Morris M. Cohn for appellants.
[227 U.S. 456, 461] Messrs. Lovick P. Miles and Martin L. Clardy for appellee.
Mr. Justice Lurton, after making the above statement, delivered the opinion of the court:
The single purpose of this case is to prevent the bringing of actions at law in the name of the state, and by order of the state railroad commission, to recover penalties prescribed by the Arkansas act of March 11, 1899, 11 and 18, for the violation of the provisions of 11 of the act referred to, and of 1 of the act of April 19, 1907. The case turned below upon the single question of the constitutionality of the act of April 19, 1907, being an act entitled, 'An Act to Regulate Freight Transportation by Railroad Companies Doing Business in the State of Arkansas.' The only parts of that act here in any way involved are the first paragraph of the 1st section, and the last clause in the 17th section. The paragraph of the 1st section is the legislative authority under which the commission finds power to make its order No. 346, concerning the duty of carriers to furnish cars upon the demand of shippers, its said order being in the very words of that paragraph, as follows: [227 U.S. 456, 463] 'That when a shipper makes a written application to the station agent of a railroad company for a car or cars, to be loaded with any kind of freight embraced in the tariff of said company, stating in said application the character of the freight, and its final destination, the railroad company shall furnish same at the place of shipment within six days from 7 o'clock A. M. the day following such application.'
The clause concluding the 17th section of the act is in these words:
The order of the commission directed the bringing of actions against the appellee for the wilful violation of the provisions of 1, set out above, and also for an illegal discrimination under 11 of the act of March 11, 1899, referred to above. That section forbids any discrimination or preference in furnishing cars, and requires equal facilities to all under like circumstances and conditions.
By agreement of the parties, recited in the decree below, and repeated in the memorandum opinion filed by the circuit judge, every question was eliminated from the case except the constitutionality of the act of 1907. The issue for our consideration by this action of the parties is very succinctly stated by Judge Treiber, who presided in the circuit court, in these words:
Neither have counsel for appellee in this court presented any question other than that of the unconstitutionality of the act of 1907. We shall, therefore, for the purposes of this case, assume that the railroad company did fail and refuse to furnish cars as requested, and that it also favored a coal company in which it was interested, and that it rests its defense upon the invalidity of the act of 1907
The attack upon that act turned upon two propositions.
a. That the clause of the 17th section, set out above, manifests an intention that the act shall apply as well to interstate shipments as to intrastate shipments, and that this purpose invalidates the whole act, as there [227 U.S. 456, 465] is nothing to justify the court in saying that the valid parts of the act would have been passed without the invalid parts.
b. That the requirement to furnish cars, found in the 1st section, is absolute, and that no excuse arising from the detention of the company's cars upon other and connecting lines of railroad in and out of the state, nor for delays due to sudden emergencies, unusual congestion of traffic, catastrophes, or other unavoidable and unusual conditions without fault, is a defense against the penalty imposed for failure to supply cars as required.
Coming first to the clause in the 17th section, which the court below held invalidated the whole act:
That clause probably means no more than that there shall be no discrimination against demands for cars for interstate shipments. If, however, it be construed as extending the act so as to regulate the furnishing of cars for interstate shipments, it would be invalid by reason of the provisions of the Hepburn amendment to the act to regulate commerce of June 29, 1906 [34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1911, p. 1288]. Chicago, R. I. & P. R. Co. v. Hardwick Farmers' Elevator Co. 226 U.S. 426 , 57 L. ed. --, 33 Sup. Ct. Rep. 174.
The effect of this upon the remainder of the act has not been considered in the briefs of appellee, further than to say that in Oliver v. Chicago, R. I. & P. R. Co. 89 Ark. 466, 117 S. W. 238, decided pending this appeal, the supreme court of the state has held the act valid as including an elaborate and workable scheme for the regulation of intrastate railroad traffic, irrespective of the invalidity of the clause referred to. We shall therefore assume the remainder of the act to be valid, although the clause in question be regarded as invalid.
Neither is the requirement of the act as to the duty of furnishing cars absolute, as held by the court below. That the act upon its face includes no exceptions or excuses is not conclusive of its meaning and intent. The case of Houston & T. C. R. Co. v. Mayes, 201 U.S. 321 , 50 L. ed. 772, 26 Sup. Ct. Rep. 491, is not [227 U.S. 456, 466] controlling. The dereliction there involved was in the failure to furnish cars for an interstate shipment, under a Texas statute which required the carrier to furnish cars upon six days' notice, with a provision that the law should not 'apply in cases of strikes or other calamity.' This court concluded that the inclusion of a particular exception excluded all others, and that an absolute requirement that a railroad shall furnish a certain number of cars at a specific day, regardless of every other consideration 'except strikes and other public calamities,' amounted to a burden upon interstate commerce. The court added: 'It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention in other states, or in other places within the same state,' etc.
But the penalties imposed by the act here involved are enforceable only in an action at law, and in such an action the supreme court of the state has held that such a statutory provision is but declarative of the common law, and that any reasonable excuse for a failure to furnish cars upon the requirement of a shipper may be interposed. St. Louis Southwestern R. Co. v. Clay County Gin Co. 77 Ark. 357, 92 S. W. 531; St. Louis Southwestern R. Co. v. State, 85 Ark. 311, 122 Am. St. Rep. 33, 107 S. W. 1180; Oliver v. Chicago, R. I. & P. R. Co. 89 Ark. 466, 470, 117 S. W. 238. In the case last cited the Arkansas court said of this provision of the act of 1907, that 'the failure to furnish cars under the terms of the act under investigation will establish prima facie a breach of duty on the part of the railroad companies. This will not preclude their right to set up such defense as will excuse or justify the failure. That a fair division of cars with interstate business made it impossible to answer all demands made for cars for intrastate business would apparently be within the limit of proper defenses in cases of demands too unusual to be foreseen; and, viewed in this [227 U.S. 456, 467] way, the act is relieved of the imputation of burdening interstate commerce.'
In the case of St. Louis Southwestern R. Co. v. State, cited above, the excuse for failure to furnish cars upon the requirement of a shipper was that it was unable to do so because, while its car equipment was ample for all the demands of its traffic, it had, at the time when it made default, lost control of a majority of its cars through the fact that they had been sent beyond its own line in interstate commerce, and it had been unable to secure their prompt return through the inefficiency of the rules and regulations of the American Railway Association, of which it was a member. Although it appeared that 90 per cent of all the railroad companies in the United States were members of that association and permitted interchange of cars with connecting railroads, and the company was powerless to correct the rules and regulations of that association or supervise their enforcement, the Arkansas court held that the detention of its cars upon other lines of railroad in the course of its interstate business afforded no reason for its failure to supply cars in the particular case under consideration. The case was reversed by this court ( 217 U.S. 136, 147 , 54 S. L. ed. 698, 704, 29 L.R.A.(N.S.) 802, 30 Sup. Ct. Rep. 476), when the court, among other things, said:
The cases referred to make it clear that the statutory duty of furnishing cars upon the reasonable notice of a shipper is not absolute, and that the legislature did not intend to impose upon railroad companies the duty of furnishing cars to a particular shipper, regardless of its equal duty to other shippers, state and interstate, or to a situation due to some unusual and unavoidable condition which made it unreasonable that it should be penalized for noncompliance; and also that if, in the administration of the statute, a ruling is made by the state court in respect to an excuse for noncompliance which operates as a restraint upon interstate commerce, a Federal question arises which may be reviewed by this court.
The conclusion we reach is that the railroad company, as the case is presented by the pleadings, the agreement of the parties, and the ruling of the court below, is making an effort to test the constitutionality of the act of 1907, without showing that in the operation of the act interstate commerce has been illegally restrained or burdened, or that any defense which it may have for the neglect to comply with the provisions of the act as to furnishing cars has been or will be denied by virtue of its obligation as an interstate railroad. The objections which are suggested in the bill are conjectural and academic. The excuse made by the bill for its refusal to furnish the cars requested and for its illegal discrimination were put in issue by the answer and not proved. In New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 , 51 S. L. ed. 415, 422, 27 Sup. Ct. Rep. 188, 9 Ann. Cas. 736, it is said: [227 U.S. 456, 469] 'That unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if, for any reason, or as against any class embraced, the law is unconstitutional, it is void as to all. Albany County v. Stanley, 105 U.S. 305, 311 , 26 S. L. ed. 1044, 1049; Clark v. Kansas City, 176 U.S. 114, 118 , 44 S. L. ed. 392, 396, 20 Sup. Ct. Rep. 284; Lampasas v. Bell, 180 U.S. 276, 283 , 284 S., 45 L. ed. 527, 530, 531, 21 Sup. Ct. Rep. 368; Cronin v. Adams, 192 U.S. 108, 114 , 48 S. L. ed. 365, 368, 24 Sup. Ct. Rep. 219. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court may read into general words, or how far it may sustain an act that partially fails.'
This principle has been applied in many cases, among them: Turpin v. Lemon, 187 U.S. 51, 60 , 47 S. L. ed. 70, 74, 23 Sup. Ct. Rep. 20; The Winnebago, 205 U.S. 354, 360 , 51 S. L. ed. 836, 839, 27 Sup. Ct. Rep. 509; Citizens' Nat. Bank v. Kentucky, 217 U.S. 453 , 54 L. ed. 836, 30 Sup. Ct. Rep. 532; Southern R. Co. v. King, 217 U.S. 524, 534 , 54 S. L. ed. 868, 871, 30 Sup. Ct. Rep. 594; Rosenthal v. New York, 226 U.S. 260, 271 , 57 S. L. ed . --, 33 Sup. Ct. Rep. 27.
The result is that the decree must be reversed and the case remanded, with direction to dismiss the bill.