THE

AMERICAN AND ENGLISH

RAILROAD CASES.

VOLUME XLVII.

NORFOLK & WESTERN R. Co.

ย.

COMMONWEALTH.

(Virginia Supreme Court of Appeals, June 25, 1891.)

Sunday Trains-Statute Forbidding- Interstate Commerce.-A statute (Code Va. § 3801) which forbids the running of trains between sunrise and sunset on a Sunday, except such as are used exclusively for the relief of wrecked or disabled trains, or for the transportation of the mails, passengers, live-stock, or articles of such perishable nature as would be necessarily impaired in value by one day's delay, is, in so far as it forbids the running of trains between points in different states, an attempt to regulate commerce among the states, and is, therefore, in conflict with the federal constitution and void.

ERROR to judgment of the circuit court of Pulaski county, rendered March 25, 1891, affirming a judgment of the county court of that county against the Norfolk & Western Railroad Company in a prosecution for a misd meanor. The indictment was for running a train of cars on Sunday, contrary to the act of March 19, 1884, now carried into 3801 of the Code. That act forbids the running of trains between sunrise and sunset on a Sunday, except such as are used exclusively for the relief of wrecked or disabled trains, or for the transportation of the United States mails, passengers, livestock, or articles of such perishable nature as would be necessarily impaired in value by one day's delay in their passage. Section 5258, Rev. St. U. S., however, (not noted in the indictment), makes every railroad in the country, operated by steam, an agency of commerce for the transportation, among other things, of "freights on their way from one state to another state." There was a motion to quash the indictment,

on the ground that it was not sufficiently certain, that is to
say, that, even admitting the charge in the indictment to be
true, the defendant was not necessarily guilty of any offense
under the laws of the land; which motion was overruled,
whereupon the defendant pleaded not guilty. The facts were
argued at the trial, and are as follows: That on Sunday, the
21st day of September, 1890, the defendant by its agents and
employes, ran over the New River Division of its road, in
Pulaski county, after 9 o'clock in the morning, and before
sunset, a train of cars loaded with coal and coke, which was
being transported from Bluefield, a station on defendant's
road, in the state of West Virginia, into and through Vir-
ginia, and that said train was being run only for the transpor-
tation of said coal and coke. The defendant demurred to
the evidence, whereupon the jury conditionally assessed the
fine of $50. The county court overruled the demurrer, and
rendered a judgment for the fine assessed, which judgment.
was afterwards affirmed by the circuit court.

Phlegar & Johnson and Brown & Moore, for plaintiff in error.
The Attorney General, for the Commonwealth.

sented.

LEWIS, P.-The defendant's contention on the merits in the trial court, and here is that the statute upon which the indictment was founded is, so far as it applies to a Question pre- case like the present, repugnant to the constitution of the United States, which gives to congress the power to regulate commerce among the several states. The precise propositions contended for on this point are: (1) That the act of transportation mentioned in the proceedings was commerce between the states; (2) that such commerce is, as to all matters that admit of uniformity of regulation, subject only to congressional regulation; (3) that § 3801 of the Code is a regulation of commerce; and (4) that as such, it cannot be applied to interstate commerce, or to the train in question. It is an historical fact, well known, that to secure uniformity and freedom in commercial intercourse, and, with that view, to establish a single government empowered to regulate commerce, was the chief consideration that led to the formation and adoption of the federal constitution. Accordingly, that instrument ordains that "congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Article 1, 8. The power thus conferred, as the supreme court of the United States has repeatedly decided, is complete and exclusive. It is the unlimited power, in other words, to prescribe rules by which commerce shall be governed, and

Interstate

commerce ex

empt from

state regulations.

to determine how far it shall be free and untrammeled. Any attempt, therefore, by a state to regulate foreign or interstate commerce is the attempted exercise of a power which has been surrendered by the states, and granted exclusively to the national government. It is an attempt to do that which congress alone is authorized to do, and hence is a nullity. As was said in Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465: "Whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations. Power over one is given by the constitution to congress in the same words in which it is given over the other, and in both cases it is necessarily exclusive." And in a subsequent part of the same opinion it was said that transportation is not only essential to commerce, but that it is commerce itself, and that every obstacle to it, or burden laid upon it, by legislative authority is regulation. See, also, County of Mobile v. Kimball, 102 U. S. 691; McCall v. California, 136 U. S. 104, 45 Am. & Eng. R. Cas. 1: "It cannot be too strongly insisted upon," said the court in Wabash, etc. R. Co. v. Illinois, 118 U. S. 557, 26 Am. & Eng. R. Cas. 1: "that the right of continuous transportation from one end of the country to the other is essential, in modern times, to that freedom of commerce from the restraints which the states might choose to impose upon it that the commerce clause of the constitution was intended to secure; and it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the states, which was deemed essential to a more perfect union by the framers of the constitution, if, at every stage of the transportation of goods and chattels through the country, the state within whose limits a part of the transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce." And in a still more recent case it was remarked that in the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems. Robbins v. Shelby Co. Taxing Dist., 120 U. S. 489, 16 Am. & Eng. R. Cas. 1. There is, indeed, what has been termed a kind of neutral ground which may be constitutionally occupied by the state, so long as it interferes with no act of congress. Thus, where the subject is local in its nature or sphere of operation, such as the establishment of highways, the construction of bridges over navigable streams, the regulation of harbor pilotage, the erection of wharves, piers, and docks, in these and other like

cases, which are considered as mere aids rather than regulations of commerce, the state may act until congress supersedes its authority; but where the subject is national in its character, admitting of uniformity of regulation, such as the transportation and exchange of commodoties between the states, congress alone can act upon it. The case of Cooley v. Port Wardens, 12 How. 299, is sometimes cited as an authority to the contrary: that is, for the proposition that, in the absence of congressional action, a state may regulate interstate commerce within its own territorial limits. But this statement is broader than the decision justifies; for it was expressly said in that case that "whatever subjects of this power are in their nature national, or admit of only one uniform system or plan of regulation, may be justly said to be of such a nature as to require exclusive legislation by congress." And in the very recent case of Leisy v. Hardin, 135 U. S. 100, known as the "Original Package Case," where the subject is fully considered, Mr. Chief Justice FULLER, in delivering the opinion of the court, used the following language: "The power to regulate commerce among the states is a unit, but, if particular subjects within its operation do not require the application of a general or uniform system, the states may legislate in regard to them with a view to local needs and circumstances until congress otherwise directs; but the power thus exercised by the states is not identical in its extent with the power to regulate commerce among the states. The power to pass laws in respect to internal commerce, inspection laws, quarantine laws, health laws, and laws in relation to bridges, ferries, and highways, belong to the class of powers pertaining to locality, essential to local intercommunication, to the progress and development of local prosperity, and to the protection, the safety, and welfare of society, originally necessarily belonging to, and upon the adoption of the constitution reserved by, the states, except so far as falling within the scope of a power confided to the general government." But these powers, it was said, "though they may be said to partake of the nature of the power granted to the general government, are strictly not such, but are simply local powers, which have full operation until or unless circumscribed by the action of congress in effectuation of the general power." And in the same case the principle was again announced, as it had often been before, that the transportation of passengers or of merchandise from one state to another is in its nature not local, but national, and therefore admitting of but one regulating power. These authorities, which are only a few of many that might be cited to the same effect, are sufficient to show the invalid