Sargent v. Rutland Railroad

85 A. 654, 86 Vt. 328, 1913 Vt. LEXIS 203

• Court: Supreme Court of Vermont
• Decided: January 9, 1913
• Status: Published

Opinion

Watson, J.

By the Laws of 1906, No. 122, sec. 8 (P. S. 4539), "No railroad or transportation company doing business in this State shall charge, collect, or receive any demurrage charge on freight received at any station in this State until four days, not including Sundays or holidays, after it shall have notified, verbally or by mail, the consignee of such freight .of its arrival. ’ ’ By section 10 a penalty is provided for each violation of these provisions. And by the Laws of 1910, No. 147, sec. 1, "No railroad or transportation company doing business in this State shall charge, collect, or receive any demurrage charge upon any car placed or held for loading in this State until four days, not including Sundays or holidays, after it shall have notified verbally or by mail, the consignor that such car is held or has been placed to his use according to the order previously received. ’ ’

The defence is, that these statutes are void, as repugnant to the commerce clause of the Constitution of the United States, because (1) they apply to interstate as well as intrastate commerce; and (2) if they apply to intrastate commerce only, such application works a substantial burden upon and 'discriminates against interstate commerce.

The Public .Service Commission construed the law of these sections as pertaining only to commerce wholly within the State, and its order in the premises was limited accordingly. This construction, the petitioner says is as it should be, for otherwise the law. might be subject to constitutional objections, and a statute is never to be construed so as to be unconstitutional if a reasonable construction can be placed upon it, which will give its provisions constitutional effect. .

As to the soundness of the last stated principle of construction the parties are at one. But the appropriateness of its application to the provisions under consideration is questioned, it being said that the statute in terms applies to interstate, as well as to intrastate, commerce, and that the two elements are inseparable, and since the valid portion cannot bé separated from the invalid, that principle of construction does not apply.

The petitionee, as a common carrier, is operating a railroad or railroads in character intrastate, interstate, and international. Its business in this State, as regards commerce, partakes of each of the same elements of character. At various places in the states of New York and Vermont, and in Canada, its road conneets with other railroads, and at such places of connection there is an interchange of freight cars with such other railroads, under' the “American Railway Association Car Service Rules,” common to all the railroad companies operating in this country, and under which substantially all the freight cars in the United States and in Canada are made interchangeable. Under these ear service rules, a home car, loaded with freight to points beyond that line, shall be carried through to the destination of the freight, a practice essential to the economic efficiency of such public service companies, and alike beneficial to the carriers and to the public. By the same rules foreign cars must be promptly returned to their owners; but in so doing they may be loaded to the road from which originally received, if such loading is in the direction of the home road; loaded in local service in the direction of any junction point with the home road; loaded locally in an opposite direction from the home road or home route, if to be loaded according to certain rules toward the home road, or so it will participate in the freight rate.

The effect of these provisions seems to be such, among other things, that when a foreign car comes into this State loaded with freight of a nature to be taken from the car by the consignee, destined in part for each of two points in the state, domestic freight of like nature between such places, going in the same direction, may be carried at the same time in the same car; and in returning the car to the home road, it may be engaged at the same time in- carrying freight of the same nature in part destined for some point within this State and in part for some point beyond the State. Thus such cars may concurrently be instruments of state and of interstate commerce, and this seems likely to be of such frequent occurrence in the practical operations under the ear service rules, as to render it proper of notice in determining the questions before us; for the constitutionality of a law is to be tested, not by what has been done under it, but by what may rightfully, by its authority, be done. Montana Company v. St. Louis Mining and Milling Co., 152 U. S. 160, 38 L. ed. 398, 14 Sup. Ct. 506.

Under the Act of 1906, whence the freight was shipped, and under the Act of 1910, the destination of the freight to be loaded into the car placed or held at a consignor’s request, does not by any reasonable construction enter into the essential elements of the thing prohibited. The plain general terms of the enactments purport to apply to demurrage charges on all freight received by consignees direct from cars' at any station in this State, and upon all cars placed or held, at the request of consignors, for loading in this State, without regard to the class of commerce to which the former belongs, or in connection with which'the latter are being used. The two sections are clothed in language, plain and most apt to cover the whole field. The part 'which is unconstitutional, if there be any such, is inseparable from that which is not.

It is true, as argued, that the fact that a part of a statute is in violation of the Constitution, does not authorize courts to declare the whole statute void, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose or otherwise so connected together in meaning, that they are not severable, or it cannot be presumed the Legislature would have passed the valid part without the other. If the invalid portion can be eliminated and that which remains be complete in itself and capable of being executed in accordance with the apparent intent of the Legislature, wholly independent of the eliminated portion, it must be sustained. State v. Scampini, 77 Vt. 92, 59 Atl. 201; State v. Abraham, 78 Vt. 53, 61 Atl. 766; State v. Paige, 78 Vt. 286, 62 Atl. 1017, 6 Ann. Cas. 725; Howard v. Illinois Central R. Co., 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. 141. But when, as here, the provisions of the statute are clothed in plain language, and unambiguous, there is no room for construction. The effect is not to be determined on the basis of striking out or disregarding some of the words in the statute, nor by inserting others not there. It is not within the judicial province to give the words used a broader or a narrower meaning than they were manifestly intended to have, in order to bring the scope of the statute within the constitutional power of the Legislature to enact. United States v. Reese, 92 U. S. 214, 23 L. ed. 563; United States v. Harris, 106 U. S. 629, 27 L. ed. 290, 1 Sup. Ct. 601; Trade Mark Cases, 100 U. S. 82, 25 L. ed. 550; Baldwin v. Franks, 120 U. S. 678, 30 L. ed. 766, 7 Sup. Ct. 656; James v. Bowman, 190 U. S. 127, 47 L. ed. 979, 23 Sup. Ct. 678.

In United States v. Ju Toy, 198 U. S. 253, 49 L. ed. 1040, 25 Sup. Ct. 644, questions were before the court based upon the Chinese Exclusion Acts. After stating that the act purports to mahe the decision of the department final, whatever the ground on which the right to enter this country is claimed, — as well when it is citizenship as when it is domicile, and the belonging to a class excepted from the exclusion acts; that the relevant portion of the Act of August, 1894, was not void as a whole, and that the statute had been upheld and enforced, the court, through Mr. Justice Holmes, said: “But the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as to all it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what remains. That has been decided over and over again.”

In Howard v. Illinois Central R. Co., 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. 141, the question of the validity of the Federal Employers’ Liability Act was involved. By section 1, “Every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, * * #, shall be liable to any of, its employees, * * *, — for all damages which may result from the negligence of any of its officers, agents, or employees, * * The questions raised concerned the nature and extent of the power of Congress to regulate commerce, it being contended, among other things, that the repugnancy of the act of the Constitution clearly appeared, as the face of the act made it certain that the power asserted extended not only to the regulation of master and servant among themselves as to things which were wholly interstate commerce, but embraced those relations as to matters and things domestic in character, and not coming within the authority of Congress. The court, Mr. Justice White, now the Chief Justice, delivering the opinion, said that from the first section it was certain that the act extended to every individual or corporation engaged in interstate commerce as a common carrier; that its all-embracing words left no room for any other conclusion; that the statute was addressed to the individuals or corporations engaged in interstate commerce, but was not confined solely to regulating the interstate commerce business which might be done by such persons or corporations; that the liability of a common carrier was declared to be in favor of ‘ ‘ any of its employees”; that as the word “any” was unqualified, it followed that the liability to the servant was coextensive with the business done by the employers embraced by the statute, the court instancing a railroad engaged in interstate commerce, having a purely local branch operated wholly within a state. It was held that as the act included subjects wholly beyond the power to regulate commerce, and- depended for its sanction upon that authority, it was unconstitutional and could not be enforced unless there was merit in the propositions advanced to show that the statute might be saved. None of the propositions to which allusion is made was sustained, but we are here interested more particularly in the one, that the statute might be interpreted so as to confine its operation wholly to interstate commerce, or to means appropriate to the regulation of that subject. Thereon the court said the argument that because the statute says carriers engaged in commerce between the states, etc., therefore the act should be interpreted as being exclusively applicable to the interstate commerce business, and none other, of such carriers, and the words 1 ‘ any employee, ’ ’ as found in the statute, should be held to mean any employee when engaged only in interstate commerce, required the court to read into the statute words of limitation and restriction not found in it. To quote from the opinion, “The principles of construction invoked are undoubted, but are inapplicable. Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and others which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable, and not dependent one upon the other, and does not support thé contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save, the rule applies only where it is plain that Congress would have enacted the legislation with the unconstitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy.” It was further held that since the act, by its terms, related to every common -carrier engaged in interstate commerce, and to any of the employees of every such carrier, the court was unable to say that the statute would have been enacted had its provisions been restricted to the limited relations of that character which it was within the power of Congress to regulate. Although the questions involved in this, and in the preceding case noticed, were based upon Federal statutes in terms overreaching congressional power, and not upon state enactments extending beyond state control, as in the case at bar, the governing principles of construction are the same. Other cases illustrative of this point are, Louisville & Nashville R. Co. v. Central Stock Yards Co., 212 U. S. 132, 53 L. ed. 441, 29 Sup. Ct. 246; and Illinois Central R. Co. v. McKendree, 203 U. S. 514, 51 L. ed. 298, 27 Sup. Ct. 153.

There is much force in the contention that the statutory provisions in question, by the free time fixed therein which shall be allowed for loading and unloading ears in this State, directly burden interstate commerce, and are therefore an encroachment upon the exclusive power of Congress, on the principle that nothing can be done by a state which will operate as a burden on the interstate business of a common carrier engaged therein, or impair the usefulness of its facilities or instruments of interstate traffic. (See Stone v. Farmers Loan and Trust Co., 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. 334, 388, 1191; Covington and Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 14 Sup. Ct. 1087; McNeill v. Southern Ry. Co., 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. 722; Interstate Commerce Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. 155); but we do not decide this question, for conceding the subject-matter of the statute to be one within the power of the state to regulate for the comfort and convenience of its citizens, in the absence of congressional action, even though it may indirectly affect interstate commerce (See Missouri Pacific R. Co. v. Larabee Flour Mills Co., 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. 214; Hardwick Farmers Elevator Co. v. Chicago, Rock Island and Pac. Ry. Co., 110 Minn. 25, 124 N. W. 819, 19 Ann. Cas. 1088; Bagg v. Wilmington, etc. R. Co., 109 N. C. 279, 14 S. E. 79, 14 L. R. A. 596, 26 Am. St. Rep. 569), yet by the Interstate Commerce Act, executed and enforced through the Interstate Commerce Commission, there had been congressional.regulation of the same subject-matter, so far as it pertained to commerce among the states, and the rules thus prescribed are materially different from the provisions of the state enactments. By the former, the ‘free time allowed is forty-eight hours (two days), while under the latter it is four days. In such circumstances the two statutes cannot both be operative; and the power of the state being subordinate to that of the nation, it must yield. In Gulf, Colorado & Santa Fe Ry. Co. v. Hefley & Lewis, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802, a statute of Texas, providing that it should be unlawful for any railroad company in that state, to charge and collect, or to endeavor to charge and collect, from the owner, agent, or consignee of any freight, goods, wares and merchandise a greater sum for transporting said freight, goods, wares and merchandise than was specified in the bill of lading, was held to be in conflict with the Interstate Commerce Act, and therefore the state statute must give way, for said the court, speaking through Mr. Justice Brewer, “Generally it may be said in respect to laws of this character that, though resting upon the police power of the state, they must yield whenever Congress, in the exercise of the powers granted to it, legislates upon the precise subject-matter, for that power, like all other reserved powers of the states, is subordinate to those in terms conferred by the Constitution upon the nation.” To the same effect are Hemington v. State of Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. 1086; Southern Ry. Co. v. King, 217 U. S. 524, 54 L. ed. 868, 30 Sup. Ct. 594; Southern Ry. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. 140.

The injunction is dissolved, the order and decree are vacated and set aside, and the petition is dismissed.