SMITH v. RAILROAD

Copeland Edgerly, for the defendants. Every obstacle to the transportation of merchandise from one state to another, and every burden laid upon it by legislative authority, is regulation of commerce within the meaning of the United States constitution. Railroad Co. v. Husen, 95 U.S. 470. That the statute making railroads insurers of property along their lines imposes a burden upon transportation, there can be no doubt. The plaintiff does not deny that it is an additional and a heavy burden upon transportation, but seeks to justify it on the ground that it is only a police regulation. The boundaries of this police power are very uncertain. There is no definite line separating the cases which are and those which are not to be sustained on that ground. Strong, J., 95 U.S. 465, 472; Waite, C.J., 95 U.S. 485, 488.

While, as the plaintiff says, "the police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property in the state," still, in the language of Judge Strong, in the case cited by the plaintiff in support of this point, — "Whatever may be the nature and reach of the police power of a state, it cannot be exercised over a subject confided exclusively to congress by the federal constitution. It cannot invade the domain of the national government." The best description of this police power which we have been able to find is the following: "If the act contributed to the comfort and welfare of the public, and did not deprive the company of any essential right conferred by its charter, its passage was a proper exercise of the police power." Chicago, c., R. R. v. People, 105 Ill. 657, and 13 Am. Eng. R. R. Cases 45.

Applying this test to our statute, we claim that it does not contribute to the comfort and welfare of the public, because it adds nothing to the protection which the common law gives to property-owners against damages caused by the fault of the railroad. For loss arising in any other way, the company ought not to be compelled to answer. And it certainly deprives the company of a very essential right which they possessed when their charter was granted, and that is the right to interpose the plea that the loss arose from the fault and neglect of the owner, and not from any misconduct of themselves or their agents. Though the defendants may have "no vested interest in the common law," it has been held by high authority that a "state statute which abrogates all common-law remedies for the wrongful exclusion of a passenger from the cars of a railroad company is unconstitutional, so far as it relates to railroads running between two or more states, it being a regulation of interstate commerce that the state has no power to make." Brown v. Memphis C. R. R. Co., 5 Fed. Rep. 499.

If the abrogation of common-law remedies is unconstitutional as applied to interstate railroads, the abrogation of common-law defences as applied to them must also be; and that is just what this statute does. It denies the right of the railroad to make the defence of contributory negligence on the part of the owner of the destroyed property. The two statutes seem to be exactly parallel. No one will maintain that the defendants' charter contemplated that the company should do an insurance business. A statute very similar to this, which imposed an absolute liability on the company for injuries to cattle without any negligence or breach of duty, has been held unconstitutional, as depriving it of its property without "due process of law." Zeigler v. S. N. A. R. R. Co., 58 Ala. 594; Memphis C. R. R. Co. v. Lyon, 62 Ala. 71.

It may be that railroad companies are from the beginning subject to such laws and regulations as might be established by the legislature for the common good. But the regulations must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise, must not be in conflict with any of the provisions of the charter, and must not, under pretence of regulation, take from the corporation any of the essential rights and privileges which the charter confers. Cool. Con. Lim. *577, and cases cited. This statute, then, is not a police regulation, for it curtails rights conferred upon the company by its charter; and because it lays an additional weight upon the business of the company, it is a regulation of commerce. There is no question that it imposes a burden on transportation. "Transportation is essential to commerce, and every burden laid upon it is pro tanto a restriction." Case of the State Freight Tax, 15 Wall. 232.

Chief-Justice Waite, in Hall v. DeCuir, 95 U.S. 488, says, — "We think it may be safely said that state legislation, which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive powers of congress." Whenever the terms by which a power is granted to congress, or the nature of the power requires that it should be exclusively exercised by congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to exercise the power. Sturges v. Crowninshield, 4 Wheat. 122; Brown v. Maryland, 12 Wheat. 419.

We call attention to the following cases, where it has been decided that whatever burdens legislation imposes upon transportation are regulations of commerce, and consequently unconstitutional: Brown v. Maryland, supra; Passenger Cases, 7 How. 445; Wheeling Bridge Case, 13 How. 518; Sinnot v. Davenport, 22 How. 227; Case of State Freight Tax supra; Henderson v. Mayor of N. Y., 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; Welton v. Missouri, 91 U.S. 275; Sherlock v. Alling, 93 U.S. 99; Foster v. Wardens of New Orleans, 94 U.S. 246; R. R. Co. v. Husen, 95 U.S. 465; Hall v. DeCuir, 95 U.S. 485; Co. of Mobile v. Kimball, 102 U.S. 691; Webber v. Virginia, 103 U.S. 344; Telegraph Co. v. Texas, 105 U.S. 460; People v. Compagnie G. T., 107 U.S. 59; Brown v. Memphis, c., R. R., supra; Carton v. Ill. Central R. R., 59 Iowa 148 — S.C., 44 Am. Rep. 672.

When the legislature decided that the public needs required the construction of a railroad through the town of Newmarket, it became necessary under the constitution for the grantees of that charter to pay for the property of individuals, along the line of their proposed road, which they might take from them in executing their franchise; and in computing the damages to the adjoining land-owners, the risks and danger incidental to the running of fire engines were included in the estimate. This plaintiff, or his privies, has been paid once for the risk he runs of fire.

Frink and Page, for the plaintiff. Our statute, making railroads liable for damages occasioned by fire from their locomotives, imposes no restrictions or regulations upon commerce between the states, within the meaning of the constitution. It is merely an attempt of the legislature to regulate the use of dangerous machines, owned and managed by one citizen, in a manner that is reasonable and expedient for the safety and protection of the property of other citizens and the rights of the public. In other words, it is a police regulation, and the defendants might as well claim an exemption from the various statutes regulating the rate of speed, the manner of crossing highways, the burden of establishing convenient depots and stopping at them, or the running of trains on Sunday.

Congress has enacted no statute upon the subject. It is wholly a matter of domestic concern, and the state has the right to legislate upon it to protect its own citizens, even though in so doing it may indirectly operate upon commerce outside of its immediate jurisdiction. It is only in cases of direct interference, direct taxation, or legislation directly aimed at commerce and amounting to a prohibition, that statutes have been held unconstitutional. Neither the act of throwing fire from an engine, or the engine itself, is a part of the commerce between the states, and the statute only attempts to regulate these. Pierce v. State, 13 N.H. 536, 577; Railroad v. Fuller, 17 Wall. 560; Munn v. Illinois, 94 U.S. 113; State Tax on Railway Receipts, 15 Wall. 293; Slaughter-House Cases, 16 Wall. 36; Packet Company v. Catlettsburg, 105 U.S. 559; United States v. Bevans, 3 Wheat. 337; Thorpe v. Railroad, 27 Vt. 140; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419.

The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state, and it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. Thorpe v. Railroad, 27 Vt. 149; Railroad Co. v. Husen, 95 U.S. 465; Beer Co. v. Massachusetts, 97 U.S. 25. And even if the statute in question were conceded to be an attempt to regulate commerce, it would still be valid until superseded by action of congress. The James Gray v. The John Fraser, 21 How. 184; Cooley v. Wardens, 12 How. 319; Willson v. Company, 2 Pet. 250.