"3. Does the fact that the railroad was commonly and usually employed in interstate commerce and that defendant was engaged in business as an interstate carrier have such effect?" And their contention is that each question should receive an answer in the affirmative.

If the statute regulates interstate commerce, or enacts regulations in conflict with valid federal regulations of such commerce, it is invalid. In Atlantic Coast Line R. R. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. Rep. 121, 52 L. ed. 230, it is held that, "Any exercise of state authority, whether made directly or through the instrumentality of a commission, which directly regulates interstate commerce, is repugnant to the commerce clause of the federal constitution.'

The statute in question does not purport to be a regulation of interstate traffic, but is limited strictly to the moving of traffic from one point to another in the state, and it is evident from its various requirements as well as its title that it was 68 passed in the exercise of the police power of the state to promote the safety in the state of employés and travelers upon railroads, and without any thought or intention of meddling with interstate commerce.

The original safety appliance act, so called, passed March 2, 1893, by Congress was entitled as follows: "An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes."

Section 2 of that act provides as follows: "That on and after the first day of January, eighteen hundred and ninetyeight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

And by the amendment of March 2, 1903, it was further provided that the provisions and regulations of this safety appliance act "shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce. and to all

other locomotives, tenders, cars and similar vehicles used in connection therewith": 32 U. S. Stats., p. 943; U. S. Comp. Stats. 1901, p. 3174; Supp. U. S. Comp. Stats. 1903, p. 367.

69 Whether the original act of Congress, properly interpreted, applies to cars while not employed in interstate traffic, and whether the amendment in so far as it attempts to regulate cars while not so engaged in interstate traffic

does not transcend the powers of Congress, we need not consider.

In Voelker v. Chicago etc. Ry. Co., 116 Fed. 867, in referring to the act of Congress of 1893, Shiras, District Judge, says: "Legislation on this matter of the use of automatic couplers was sought and obtained from Congress, as well as from the state legislature; so that the companies would not be afforded a loophole for escape from liability on the theory that the agencies used in interstate commerce are without the control of state legislation." And in the same case in the circuit court of appeals, before Sanborn, Thayer and Van Devanter, Circuit Judges (Chicago etc. Ry. Co. v. Voelker, 129 Fed. 522, 60 C. C. A. 226, 70 L. R. A. 264), Van Devanter, J., says: "The two statutes, federal and state, seem to have been enacted in pursuance of a common purpose to afford a remedy as broad as the mischief, and to remove the source or cause of the latter through the compulsory adoption and use of a new system of coupling and uncoupling which dispensed with the necessity of anyone going between, or at least entirely between, the cars."

Our statute does not conflict with the federal statute in the character of the coupler required, but requires the same kind of coupler, and was passed to promote the same object, though under a different power, and, while no doubt it was enacted to apply to cases assumed not to be covered by the federal statute, it is not unreasonable, and 70 is not void. merely because a failure to equip the car with automatic couplers would subject the railroad company to punishment under a state statute as well as under the act of Congress. "The same act or series of acts may constitute an offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each government": Cross v. North Carolina, 132 U. S. 131, 10 Sup. Ct. Rep. 47, 33 L. ed. 287.

The regulation of the commerce among the states is within the exclusive jurisdiction of Congress, but it is well settled that a state statute, enacted in the exercise of its police power, not regulating or directly affecting interstate commerce or in conflict with federal regulations, but merely regulative of the instrumentalities of commerce, is not void; and when such state regulations do conflict with federal regulations, they are not void on the ground that the state has exercised a power exclusively in Congress, but because the constitution and the laws of the United States made in pursuance thereof are the supreme law of the land.

It is unnecessary to cite the cases by which these principles are established; they are cited in the following very recent cases upon which we base our decision. In Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. Rep. 485, 52 L. ed. 778, 14 Ann. Cas. 1101, where a statute of the state of Kansas making it

a misdemeanor to transport cattle into the state without inspection was upheld against the contention that it interfered with interstate commerce and also conflicted with a statute of the United States and the rules and regulations of the department of agriculture, it is held: "While the state may not legislate for the direct control of interstate 71 commerce, a proper police regulation which does not conflict with congressional legislation on the subject involved is not necessarily unconstitutional because it may have an indirect effect upon interstate commerce." In Missouri Pacific Ry. Co. v. Larabee Flour-mills Co., 211 U. S. 612, 29 Sup. Ct. Rep. 214, 53 L. ed. 352, in which a peremptory writ of mandamus was allowed by the supreme court of Kansas, commanding one railroad company to transfer cars to and from a mill on another railroad, and which was affirmed, it is said by Mr. Justice Brewer: "The roads are, therefore, engaged in both interstate commerce and that within the state. In the former they are subject to the regulation of Congress; in the latter to that of the state; and to enforce the proper relation between Congress and the state, the full control of each over the commerce subject to its dominion must be preserved." Again he says (623): "Running through the entire argument of counsel for the Missouri Pacific is the thought that the control of Congress over interstate commerce and a delegation of that control to a commission necessarily withdraws from the state all power in respect to regulations of a local character. This proposition cannot be sustained." Mr. Justice Moody, dissenting (624), says: "I venture to think that the weight of authority establishes the following principles: The commerce clause of the constitution vests the power to regulate interstate commerce exclusively in the Congress, and leaves the power to regulate intrastate commerce exclusively in the states. Both powers being exclusive, neither can be directly exercised except by the government in which it is vested. Though the state may not 72 directly control interstate commerce, it may often indirectly affect that commerce by the exercise of other governmental powers with which it is undoubtedly clothed. And this indirect effect may be allowed to operate until the Congress enacts legislation conflicting with it, to which it must yield as the paramount power: Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; Atlantic Coast Line v. Wharton, 207 U. S. 328, 28 Sup. Ct. Rep. 121, 52 L. ed. 230; Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. Rep. 485, 52 L. ed. 778, 14 Ann. Cas. 1101."

It follows that the questions propounded by counsel should receive a negative answer, and the judgment is affirmed.

Crew, Spear, Davis, Shauck and Price, JJ., concur.

The Constitutionality of State Statutes Affecting Interstate Commerce is the subject of a note to People v. Wemple, 27 Am. St. Rep. 547. The fact that a state statute in the nature of a police regulation to some extent affects interstate commerce does not render it unconstitutional. Thus a statute requiring persons engaged in selling steamship tickets, and in conjunction therewith receiving deposits of money to transmit to foreign countries, to give a bond for the faithful discharge of their duties, is not unconstitutional as conflicting with the commerce clause of the federal constitution: Musco v. United Surety Co., 196 N. Y. 459, 134 Am. St. Rep. 851. And an ordinance limiting the speed of trains on an interstate railway which carries United States mail to ten miles an hour within the city limits is not invalid as imposing an unreasonable restriction upon interstate commerce and the speedy transportation of the mail: Peterson v. State, 79 Neb. 132, 126 Am. St. Rep. 651. As to the constitutionality of a statute requiring the inspection of livestock imported into the state, see State v. Butterfield Livestock Co., 17 Idaho, 441, 134 Am. St. Rep. 263.

NICHOLSON v. FRANKLIN BREWING COMPANY. [82 Ohio St. 94, 91 N. E. 991.]

CORPORATION-Notice of By-laws to Transferee of Stock.One who acquires the stock of a corporation organized in another state, but having its principal place of business in the state where he resides. is deemed to know all restrictions which the laws of the first state, or by-laws of the corporation not inconsistent with them, impose upon the alienation of stock. (By the editor.) (p. 766.)

CORPORATION-Transfer of Stock-Motive of Transferee.A corporation may not refuse to transfer stock because of the motive which may have prompted the transferee to acquire it. (By the editor.) (p. 767.)

CORPORATION.—By-laws of a Corporation, to be Valid, must not contravene the policy defined in the statute of its creation. (By the editor.) (p. 767.)

CORPORATION—Authority to Enact By-laws.-When statutes under which corporations are formed authorize them to make by-laws upon specifically named subjects, there is an implied denial of authority to make by-laws upon subjects not named. (By the editor.) (p. 767.)

CORPORATION-Statute Restricting Transfers of Stock.-A statute which expressly authorizes a corporation formed under it to adopt by-laws regulating the issuance and transference of shares in its capital stock and aiding in the promotion of its business gives validity to a by-law which requires a stockholder who desires to sell and transfer his stock, before doing so, to notify the directors of such desire and to give them a reasonable time to sell the stock to classes of persons designated in the by-laws because of the belief that their occupations would render them efficient promoters of the business of the corporation. (p. 768.)

CORPORATION-Statute Restricting Transfers of Stock.-A suit cannot be maintained against the corporation to compel it to register stock which a holder has attempted to transfer in violation of such by-law. (p. 768.)

(Syllabi by the court except when stated to be by the editor.)

Suit to compel the Franklin Brewing Company, a corporation of the state of Delaware, to accept the surrender of two certificates of its capital stock which the plaintiff had received by assignment and transfer of former owners thereof, and issue to him a new certificate therefor. The refusal to make the transfer was based on section 19 of the by-laws of the defendant corporation, which by-laws were adopted at the first meeting of the incorporators and subscribers to the capital stock held in Delaware. Section 19 reads as follows: "Section 19. In case any member of this company desires to sell all or part of the stock held by him, he shall notify the secretary of this company in writing, stating the amount of stock he desires to sell and the market value of same, when this company shall have an option on said stock for thirty days following such notice. The directors in turn shall first offer it for sale to saloon-keepers who are not stockholders; second, to saloon-keepers who are stockholders, and, third, to stockholders who are not saloon-keepers. The meaning of the word 'saloon-keepers,' as applied in this section, is held to be all men actually engaged in the saloon business."

The following sections of the corporation laws of Delaware are pertinent as showing the authority of the corporation to adopt the above by-law:

"Section 2. To make by-laws, not inconsistent with the constitution or laws of the United States or of this state, fixing and altering the number of its directors for the management of its property, the regulation and government of its affairs, and for the certification and transfer of its stock, with penalties for the breach thereof not exceeding twenty dollars.

"Section 3. In addition to the powers enumerated in the second section of this act, every corporation, its officers, directors and stockholders shall possess and exercise all the powers and privileges contained in this act, and the powers expressly given in its charter or in its certificate under which it was incorporated, so far as the same are necessary or convenient to the attainment of the objects set forth in such charter or certificate of incorporation; and shall be governed by the provisions and be subject to the restrictions and liabilities in this act contained, so far as the same are appropriate to and not inconsistent with such charter or act under which such corporation was formed; and no corporation shall possess or exercise any other corporate powers, except such incidental powers as shall be necessary to the exercise of the powers so given."

"Section 12. The power to make and alter by-laws shall be in the stockholders, but any corporation may, in the certificate of incorporation, confer that power upon the directors. Bylaws made by the directors under power so conferred may be altered or repealed by the directors or stockholders."