the laws of such state enacted in the exer- | lading, and in the superior court of Richcise of its police power. [No. 32.] Submitted October 17, 1906. Decided December 3, 1906. IN ERROR to the Supreme Court of the State of Georgia to review a judgment which, on a second appeal, affirmed a judgment of the Superior Court of Richmond County, in that state, on appeal from a justice's court, in favor of defendant in an action to recover damages from a railroad company for failing to make the deliveries of shipments of intoxicating liquors as agreed in the bills of lading. Reversed and remanded for further proceedings. See same case below, 122 Ga. 608, 50 S. E. 342; on first writ of error, 118 Ga. 616, 45 S. E. 491. The facts are stated in the opinion. Messrs. Milton Strasburger and Samuel H. Myers for plaintiff in error. Mr. Joseph B. Cumming for defendant in error. mond county, on appeal from a justice's court, obtained a verdict and judgment. The cause was appealed to the supreme court of Georgia, and by that court the judgment was reversed and the case remanded. 118 Ga. 616, 45 S. E. 491. On the second trial the defendant had a verdict and judgment; and on appeal the judgment was affirmed by the supreme court of Georgia upon the authority of its previous opinion. The case was then brought here. The act of Congress of August 8, 1890 [26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177], commonly known as the Wilson act, provides that all intoxicating liquors "transported into any state or territory, or remaining therein for use, consumption, sale, or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory, enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being intro Mr. Justice White delivered the opinion of duced therein in original packages or other the court: In March, 1902, P. B. Wise and H. D. Harkins, residents of Charleston, South Carolina, each ordered a cask of whisky from Paul Heymann, a wholesale liquor dealer in Augusta, Georgia. The price of the whisky acompanied the orders, which were given upon the understanding that if, for any cause, delivery was not made to the consignees, the purchase price would be re funded. The two casks of whisky, consigned to the respective purchasers at Charleston, were delivered to the Southern Railway Company at Augusta. In due course the packages of liquor reached Charleston, and were by the railroad company at once un loaded into its warehouse, ready for delivery. The record does not show that the consignees were notified of the arrival of the goods. Shortly after the goods were so placed in the warehouse of the railroad com pany they were seized and taken from its possession. The seizures were made without any warrant or other process, by constables asserting their right to do so under the authority of what is known as the dispensary law of South Carolina, which law was considered in Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674. The agent of the railroad company did not resist the seizure. Thereafter, Heymann, the consignor, sued the railroad company for failing to make the deliveries as contracted in the bills of wise." The supreme court of Georgia held-although the goods had not been delivered to the consignees, and although there was no showing of notice to them from the carrier, or even if notice by the local law was unnecessary, of the lapse of a reasonable time for the consignees to call for and accept delivery-that the interstate transportation of the goods ended when they were placed in the warehouse, and the carrier was thenceforward liable only as a warehouseman, and that the goods ceased to be under the shelter of the interstate commerce clause of the Constitution. This was based upon the conclusion that goods warehoused under the circumstances stated must be considered as having arrived, within the meaning of the Wilson act, and therefore the packages of liquor in question were lawfully seized bestate of South Carolina. The meaning thus cause subject to the police authority of the affixed to the word "arrival," as employed in the Wilson act, was adopted after consideration of the opinion in Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664. While it was conceded by the learned court that language contained in the opinion in that case indicated that this court deemed delivery essential to constitute "arrival" within the Wilson act, yet, the expressions in the opinion to that effect were not binding, as they were merely obiter, since the Rhodes Case was only concerned with whether goods had come under the state authority on reaching their place of destination and before they had been warehoused by the carrier. "Interpreting the statute by the light of all its provisions, it was not intended to and did not cause the power of the state to attach to an interstate commerce shipment whilst the merchandise was in transit under such shipment, and until its arrival at the the consignee." And as a result of this ascertainment of the meaning of the Wilson act it was held that, as the act of moving the goods preceded the period affixed by the Wilson act at which the state power could attach, the conviction was erroneous. We cannot concur in the view taken by the learned court of the decision in the Rhodes Case. In that case a railroad employee at a town in Iowa was indicted under the law of that state because, after an inter-point of destination, and delivery there to state shipment of liquors had reached the depot of the final carrier, at the point of destination, he moved the package from the platform, where it had been placed on being unloaded, to a freight warehouse belonging to the railroad company, a few feet away. It was insisted on behalf of the state of Iowa that the effect of the Wilson act was The Rhodes Case involved, of necessity, a to confer upon that state the power to sub-construction of the import of the Wilson ject to state regulations merchandise act, and the mere fact that the particular shipped from another state the moment it conduct which happened in that case to be reached the boundary line of the state of the subject of complaint occurred prior to Iowa. On the other hand, it was contended the delivery did not operate to cause the afthat an interstate shipment of liquor did not firmative construction which was given to arrive within that state within the mean- the Wilson act, and which it was necessary ing of the Wilson act until the consum- to give, to be obiter, and therefore subject to mation of the shipment by delivery at its be disregarded. And a case decided by this destination to the consignee. The case, court on the same day as the Rhodes Case therefore, necessarily involved deciding the leaves no room for controversy concerning meaning of the word "arrival" in the Wilson the affirmative construction given to the act, and this required an ascertainment of Wilson act in the Rhodes Case. The case when goods shipped from one state to an- referred to is Vance v. W. A. Vandercook other, generally speaking, ceased to be con- Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. trolled by the interstate commerce clause of Rep. 674. The court said (p. 451, L. ed. p. the Constitution, and how far the general 1105, Sup. Ct. Rep. p. 679): rule resulting from the power of Congress to regulate commerce had been limited, if at all, by the provisions of the Wilson act. Considering the first question, the elementary and long-settled doctrine was reiterated that delivery and sale in the original package was necessary to terminate interstate commerce, so far as the police regulations of the states were concerned. In passing upon the second question the court, referring to a previous case involving the Wilson law (Re Rahrer [Wilkerson v. Rahrer] 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865), pointed out that the contention which was made in that case, that the Wilson act was repugnant to the Constitution of the United States because it was an abdication by Congress of its power to regulate commerce, was held to be untenable, because the Wilson act was simply legislation by Congress creating a uniform rule applicable to all the states, by which liquor, when the subject of interstate commerce, could come under the power of a state at an earlier date than it otherwise would have done. Contemplating the grounds of the previous ruling upholding the constitutionality of the Wilson act, and coming to precisely determine the meaning of the word "arrival" as used in that act, it was said in the Rhodes Case (p. 426, L. ed. p. 1096, Sup. Ct. Rep. p. 669): "The interstate commerce clause of the Constitution guarantees the right to ship merchandise from one state into another, and protects it until the termination of the shipment by delivery at the place of consignment, and this right is wholly unaffected by the act of Congress which allows state authority to attach to the original package before sale, but only after delivery. Scott v. Donald, 165 U. S. 58, 107, 41 L. ed. 632, 648, 17 Sup. Ct. Rep. 265, 262, and Rhodes v. Iowa, supra. It follows that under the Constitution of the United States every resident of South Carolina is free to receive for his own use liquor from other states, and that the inhibitions of a state statute do not operate to prevent liquors from other states from being shipped into such state, on the order of a resident, for his use." And in subsequent cases the construction adopted in the previous cases of the word "arrival" as employed in the Wilson act has been reaffirmed and applied. Thus, in American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182, in reviewing the Rhodes Case, the meaning of the Wilson act was again reiterated, the court saying (p. 142, L. ed. p. 421, Sup. Ct. Rep. p. 184): "The contention was that, as by the Wilson act the power of the state operated upon the property the moment it passed the state boundary line, therefore the state of Iowa had the right to forbid the transportation of the merchandise within the state, and to punish those carrying it therein. This was not sustained. The court declined to express an opinion as to the authority of Congress, under its power to regulate commerce, to delegate to the states the right to to forbid the the transportation of merchandise from one state to another. It was, however, decided that the Wilson act manifested no attempt on the part of Congress to exert such power, but was only a regulation of commerce, since it merely provided, in the case of intoxicating liquors, that such merchandise, when transported from one state to another, should lose its character as interstate commerce upon completion of delivery under the contract of interstate shipment, and before sale in the original packages." Again, in Foppiano v. Speed, 199 U. S. 501, 50 L. ed. 288, 26 Sup. Ct. Rep. 138, referring to the Wilson act and its previous construction, it was declared (p. 517, L. ed. p. 291, Sup. Ct. Rep. 140). "This act was held to be constitutional in the case of Re Rahrer, supra, and that by virtue of said act state statutes might operate upon the original packages of intoxicating liquors before sale in the state. Rhodes v. Iowa and Vance v. W. A. Vandercook Co. supra, held that the state statute must permit the delivery of the liquors to the party to whom they were consigned within the state, but that, after such delivery, the state had power to prevent the sale of the liquors, even in the original package." As the general principle is that goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate interstate commerce, since that law simply affects an incident of such commerce by allowing the state power to attach after delivery, and before sale, we are not concerned with whether, under the law of any particular state, the liability of a railroad company as carrier ceases and becomes that of a warehouseman on the goods reaching their ultimate destination, before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the divergent legal rules in the several states concerning the precise time when the liability of a carrier, as such, in respect to the carriage of goods, ends, they cannot affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, and thereby comes under the control of the state authority. Of course, we are not called upon in this case, and do not decide, if goods of the character referred to in the Wilson act, moving in interstate commerce, arrive at the point of destination, and, after notice and full opportunity to receive them, are designedly left in the hands of the carrier for an unreasonable time, that such conduct on the part of the consignee might not justify, if affirmatively alleged and proven, the holding that goods so dealt with have come under the operation of the Wilson act, because constructively delivered. We say we are not called upon to consider this question, for the reason that no facts are shown by the record justifying passing on on such a proposition. And as in this case we deal only with the power of the state to enforce its police regulations against goods of the character of those enumerated in the Wilson act, the subject of interstate commerce, before delivery, we must not be understood as in any way limiting or restricting the ruling made in Vance v. W. A. Vandercook Co., supra, upholding the right of a citizen of one state to bring from another state into the state of his residence, and keep therein, for his personal use, the merchandise referred to in the Wilson act. In other words, as in the case at bar, delivery had not taken place when the seizures were made, and the control of the state over the goods had not attached, we are not called upon to consider whether, if the power of the state had attached by delivery, the state might not have levied upon the goods on the charge that they had not been bona fide brought into the state, and were not held by the consignees for their personal use, and, therefore, were not within the ruling in Vance v. W. A. Vandercook Co., supra. The conclusion that the court below erred in declining to follow the prior rulings of this court construing the Wilson act disposes of the entire controversy arising on the record before us, for the following reasons: In its answer filed in the trial court the railroad company substantially defended alone upon the ground that the seizure was rightful. And the supreme court of Georgia treated the liability of the defendant as depending solely upon the validity of the seizure. The court said: Florida, for the transportation of phosphate from points in the state to points within the state, shall not exceed 1 cent per ton per mile. completed at the time the goods were seized, | ness wholly or in part within the state of the railroad company would have no right to defend on the ground that it submitted to the superior authority, granting that such a defense, if established, would relieve it from liability." [118 Ga. 618, 45 S. E. 492.] Moreover, in this court, counsel, in their brief on behalf of the defendant in error, rely exclusively upon the correctness of the construction given to the Wilson act by the court below, and do not urge, in the event such construction be not sustained, that it was exempt for any reason whatever from liability. The judgment of the Supreme Court of Georgia is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed. ATLANTIC COAST LINE RAILROAD v. STATE OF FLORIDA upon the Relation of Evidence sufficiency reasonableness of state regulation of railroad rates. The evidence is insufficient to justify a refusal to enforce an order of a state railroad commission fixing local rates for carrying phosphates on any objection based on the due process of law and equal protection of the laws clauses of the 14th Amendment to the Federal Constitution, where there is no evidence from which a reasonable deduction can be made as to the cost of transportation, the amount of phosphates transported, or the effect which the rate established by the commission will have upon the income of the carrier. [No. 9.] "Provided, however, that where the rate of 1 cent per ton per mile will raise any rate now in operation, that said rate of 1 cent per ton per mile shall not be effective, but the rate as now charged by the railroad companies is hereby adopted by the railroad commissioners as their rate between such points. "It is therefore ordered, that where a shipment of phosphate shall pass over two or more railroads in reaching its destination within the state of Florida, the initial line may charge 12 cents per ton per mile for the first ten miles which said phosphate shall be hauled." The railroad company, plaintiff in error, which was a party to the proceedings before the commission, not complying with this order, application was made on March 7, 1904, to the supreme court of the state for a writ of mandamus to compel compliance, and on October 19, 1904, the peremptory writ was ordered by that court, as prayed for. 48 Fla. 146, 37 So. 657. Thereupon the railroad company sued out this writ of er ror. No special findings of fact were made by the supreme court, but in its opinion it said: "There is a total lack of positive proof that the commission rate is materially less than that now charged. The company proves merely that its books do not show that any local phosphate has been carried by it, but does not show what rate it charges on the interstate shipments of phosphate. There is some showing of the expensiveness of handling phosphate for foreign shipment, much of which would not enter into the local or intrastate business, should such be carried, but nothing is shown Argued March 2, 5, 1906. Decided December from which this court can say that the rate IN 3, 1906. 'N ERROR to the Supreme Court of the State of Florida to review a judgment awarding a peremptory writ of mandamus to enforce an order of the state railroad commission, fixing the local rates for carrying phosphates. Affirmed. fixed by the commission is unreasonable. The evidence offered might tend to show that the rate is unnecessary or that it is speculative, but such questions the court is not called upon to decide. "Taking the figures from the brief filed by the respondent, we find that the local See same case below, 48 Fla. 146, 37 So. business alone produces a net earning of at 657. Statement by Mr. Justice Brewer: On December 17, 1903, the railroad commission of the state of Florida, after notice and a hearing, made an order: least 3 per cent on the total value of the road in Florida, charging against such income the whole of the taxes. While a state is not permitted to offset local business against interstate business, and to justify low local rates by reason of the profitable"That the rate to be charged by all the ness of the latter, yet the interstate and forrailroads and common carriers doing busi-eign business may and should be considered in determining the proportion of the value | There is no evidence of the amount of phosof the property of the company assignable phates carried locally; neither is it shown to local business. There is no proper show-how much a change in the rate of carrying ing of the interstate and foreign business, them will affect the income, nor how much so that we may determine on what fraction the rate fixed by the railroads for carrying of the whole value of the property in Flor-phosphate has been changed by the order of ida the company might be entitled to earn an income from local business; there is, however, a showing that the interstate and foreign business is large and, on a proper showing and a proper proportioning of the service between domestic and foreign business, this percentage of net income would be largely increased. "Under the burden of proof cast by the law upon the respondent, we find that the rate in question is not unreasonable." ror. the commission. There is testimony tending to show the gross income from all local freights and the value of the railroad property, and also certain difficulties in the way of transporting phosphates, owing to the lack of facilities at the terminals. But there is nothing from which we can determine the cost of such transportation. We are aware of the difficulty which attends proof of the cost of transporting a single article, and, in order to determine the reasonableness of a rate prescribed, it may sometimes be necessary to accept as a basis ton per mile. We shall not attempt to in Mr. John E. Hartridge for plaintiff in er- the average rate of all transportation per Messrs. J. M. Barrs and W. H. Ellis for dicate to what extent or in what cases the defendant in error. Mr. Justice Brewer delivered the opinion of the court: inquiry must be special and limited. It is enough for the present to hold that there is in the record nothing from which a reasonable deduction can be made as to the cost of transportation, the amount of phosphates transported, or the effect which the upon the income. Under these circumstances it is impossible to hold that there was error in the conclusions reached by the Supreme Court of the State of Florida, and its judgment is affirmed. Passing all matters of a local nature, in respect to which the decision of the state court is final, the Federal question is wheth-rate established by the commission will have er the order of the railroad commission, sustained by the supreme court of the stat?, deprived the company of its property with out due process of law, or denied to it the equal protection of the law. The testimony taken before the commission was not preserved, but, by the law of the state, the rates established by such commission are to be taken in all courts as prima facie SEABOARD AIR LINE RAILWAY, Plff. in just and reasonable. Florida Laws 1899, chap. 4700, § 8, pp. 76, 82. We start, therefore, with the presumption in favor of the order. The testimony on the hearing of the application in the supreme court is, however, in the record. That court, in the exercise of its original jurisdiction of mandainus cases, determines questions of fact as well as of law. State ex rel. Columbia County v. Suwannee County, 21 Fla. 1. While it did not make any distinct findings of fact, yet its deductions from the testimony are clearly indicated by the quotations from its opinion. If it be said that, in the absence of special findings of fact, it is the duty of this court to examine the testimony upon which the judgment was entered, it is very clear that there was no sufficient evidence presented to that court to justify a refusal to enforce the order of the railroad commission. Err., V. STATE OF FLORIDA upon the Relation of Constitutional law-due process of lawstate regulation of railroad rates. 1. State regulation of local freight rates for shipments to and from the Florida West Shore Railway and over the Seaboard Air Line Railway does not deprive the latter law, even if its total receipts from local road of its property without due process of freight rates are insufficient to meet what can properly be cast as a burden upon that business, where, so far as appears, such regulation may have no other effect than to make the rates on the Florida West Shore Railway the same as those obtaining generally in the state. Constitutional law-due process of lawstate regulation of railroad rates. 2. Carriers may be forbidden by the state railroad commission to make their lo And here we face this situation: The or- cal freight rate for phosphates more than der of the commission was not operative 1 cent per ton per mile without denying due upon all local rates, but only fixed the rate process of law to a railway company whose on a single article; to wit, phosphate. 'transportation of phosphates constitutes |