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the laws of such state enacted in the exer- | lading, and in the superior court of Rich. cise of its police power.

mond county, on appeal from a justice's

court, obtained a verdict and judgment. [No. 32.]

The cause was appealed to the supreme court Submitted October 17, 1906.

of Georgia, and by that court the judgment

Decided December 3, 1906.

was reversed and the case remanded. 118

Ga. 616, 45 S. E. 491. On the second trial IN N ERROR to the Supreme Court of the the defendant had a verdict and judgment;

State of Georgia to review a judgment and on appeal the judgment was affirmed by which, on a second appeal, affirmed a judg- the supreme court of Georgia upon the ment of the Superior Court of Richmond authority of its previous opinion. The case County, in that state, on appeal from a jus- was then brought here. tice's court, in favor of defendant in an ac

The act of Congress of August 8, 1890 [26 tion to recover damages from a railroad Stat. at L. 313, chap. 728, U. S. Comp. Stat. company for failing to make the deliveries 1901, p. 3177], commonly known as the of shipments of intoxicating liquors as Wilson act, provides that all intoxicating agreed in the bills of lading. Reversed and liquors “transported into any state or remanded for further proceedings.

territory, or remaining therein for use, conSee same case below, 122 Ga. 608, 50 s. sumption, sale, or storage therein, shall, E. 342; on first writ of error, 118 Ga. 616, upon arrival in such state or territory, be 45 S. E. 491.

subject to the operation and effect of the The facts are stated in the opinion. laws of such state or territory, enacted in

Messrs. Milton Strasburger and Samuel H. the exercise of its police powers, to the same Myers for plaintiff in error.

extent and in the same manner as though Mr. Joseph B. Cumming for defendant in such liquids or liquors had been produced in error.

such state or territory, and shall not be ex

empt there from by reason of being introMr. Justice White delivered the opinion of duced therein in original packages or otherthe court:

wise.” In March, 1902, P. B. Wise and H. D. The supreme court of Georgia held—alHarkins, residents of Charleston,

of Charleston, South though the goods had not been delivered to Carolina, each ordered a cask of whisky the consignees, and although there was no from Paul Heymann, a wholesale liquor showing of notice to them from the carrier, dealer in Augusta, Georgia. The price of or even if notice by the local law was unthe whisky acompanied the orders, which necessary, of the lapse of a reasonable time were given upon the understanding that if, for the consignees to call for and accept defor any cause, delivery was not made to the livery—that the interstate transportation of consignees, the purchase price would be re- the goods ended when they were placed in funded.

the warehouse, and the carrier was thenceThe two casks of whisky, consigned to forward liable only as a warehouseman, and the respective purchasers at Charleston, that the goods ceased to be under the were delivered to the Southern Railway shelter of the interstate commerce clause of Company at Augusta. In due course the the Constitution. This was based upon the packages of liquor reached Charleston, and conclusion that goods warehoused under the were by the railroad company at once un circumstances stated must be considered as loaded into its warehouse, ready for de having arrived, within the meaning of the livery. The record does not show that the wilson act, and therefore the packages of consignees were notified of the arrival of liquor in question were lawfully seized bethe goods. Shortly after the goods were so state of South Carolina. The meaning thus

cause subject to the police authority of the placed in the warehouse of the railroad com- affixed to the word "arrival,” as employed in pany they were seized and taken from its the Wilson act, was adopted after considerapossession. The seizures were made without tion of the opinion in Rhodes v. Iowa, 170 any warrant or other process, by constables U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. asserting their right to do so under the au- 664. While it was conceded by the learned thority of what is known as the dispensary court that language contained in the opinion law of South Carolina, which law was con- in that case indicated that this court sidered in Vance v. W. A. Vandercook Co. deemed delivery essential to constitute "ar170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. rival” within the Wilson act, yet, the exRep. 674. The agent of the railroad compressions in the opinion to that effect were pany did not resist the seizure.

not binding, as they were merely obiter, Thereafter, Heymann, the consignor, sued since the Rhodes Case was only concerned the railroad company for failing to make with whether goods had come under the the deliveries as contracted in the bills of 'state authority on reaching their place of

destination and before they had been ware “Interpreting the statute by the light of housed by the carrier.

all its provisions, it was not intended to We cannot concur in the view taken by and did not cause the power of the state to the learned court of the decision in the attach to an interstate commerce shipment Rhodes Case. In that case a railroad em whilst the merchandise was in transit under ployee at a town in Iowa was indicted under such shipment, and until its arrival at the the law of that state because, after an inter-point of destination, and delivery there to state shipment of liquors had reached the the consignee.” depot of the final carrier, at the point of And as a result of this ascertainment of destination, he moved the package from the the meaning of the Wilson act it was held platform, where it had been placed on being that, as the act of moving the goods precedunloaded, to a freight warehouse belonging ed the period affixed by the Wilson act at to the railroad company, a few feet away. which the state power could attach, the conIt was insisted on behalf of the state of viction was erroneous. 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 “The interstate commerce clause of the to regulate commerce had been limited, if Constitution guarantees the right to ship at all, by the provisions of the Wilson act. merchandise from one state into another, Considering the first question, the ele- and protects it until the termination of the mentary and long-settled doctrine was re- shipment by delivery at the place of coniterated that delivery and sale in the signment, and this right is wholly unaffectoriginal package was necessary to terminate ed by the act of Congress which allows state interstate commerce, so far as the police authority to attach to the original package regulations of the states were concerned. In before sale, but only after delivery. Scott passing upon the second question the court, v. Donald, 165 U. S. 58, 107, 41 L. ed. 632, referring to a previous case involving the 648, 17 Sup. Ct. Rep. 265, 262, and Rhodes v. Wilson law (Re Rahrer (Wilkerson v. Iowa, supra. It follows that under the Rahrer] 140 U. S. 545, 35 L. ed. 572, 11 Sup. Constitution of the United States every Ct. Rep. 865), pointed out that the con- resident of South Carolina is free to receive tention which was made in that case, that for his own use liquor from other states, and the Wilson act was repugnant to the Consti- that the inhibitions of a state statute do not tution of the United States because it was operate to prevent liquors from other states an abdication by Congress of its power to from being shipped into such state, on the regulate commerce, was held to be unten- order of a resident, for his use.able, because the Wilson act was simply And in subsequent cases the construction legislation by Congress creating a uniform adopted in the previous cases of the word rule applicable to all the states, by which "arrival" as employed in the Wilson act has liquor, when the subject of interstate com- been reaffirmed and applied. Thus, in merce, could come under the power of a American Exp. Co. v. Iowa, 196 U. S. 133, 49 state at an earlier date than it otherwise L. ed. 417, 25 Sup. Ct. Rep. 182, in reviewing would have done. Contemplating the the Rhodes Case, the meaning of the Wilson grounds of the previous ruling upholding the act was again reiterated, the court saying constitutionality of the Wilson act, and (p. 142, L. ed. p. 421, Sup. Ct. Rep. p. 184): coming to precisely determine the meaning "The contention was that, as by the Wilof the word “arrival” as used in that act, it son act the power of the state operated was said in the Rhodes Case (p. 426, L. ed. upon the property the moment it passed p. 1096, Sup. Ct. Rep. p. 669):

the state boundary line, therefore the state

a

of Iowa had the right to forbid the trans- Of course, we are not called upon in this portation of the merchandise within the case, and do not decide, if goods of the state, and to punish those carrying it there- character referred to in the Wilson act, in. This was not sustained. The court moving in interstate commerce, arrive at the declined to express an opinion as to the au- point of destination, and, after notice and thority of Congress, under its power to regu- full opportunity to receive them, are delate commerce, to delegate to the states the signedly left in the hands of the carrier for right to forbid

forbid the transportation of an unreasonable time, that such conduct on merchandise from one state to another. It the part of the consignee might not justify, was, however, decided that the Wilson act if affirmatively alleged and proven, the holdmanifested no attempt on the part of Con- ing that goods so dealt with have come gress to exert such power, but was only a under the operation of the Wilson act, beregulation of commerce, since it merely pro- cause constructively delivered. We say we vided, in the case of intoxicating liquors, are not called upon to consider this question, that such merchandise, when transported for the reason that no facts are shown by from one state to another, should lose its the record justifying passing on such character as interstate commerce upon com- proposition. And as in this case we deal pletion of delivery under the contract of only with the power of the state to enforce interstate shipment, and before sale in the its police regulations against goods of the original packages."

character of those enumerated in the Wilson Again, in Foppiano v. Speed, 199 U. S. act, the subject of interstate commerce, be501, 50 L. ed. 288, 26 Sup. Ct. Rep. 138, re-fore delivery, we must not be understood as ferring to the Wilson act and its previous in any way limiting or restricting the ruling construction, it was declared (p. 517, L. ed. made in Vance v. W. A. Vandercook Co., p. 291, Sup. Ct. Rep. 140).

supra, upholding the right of a citizen of one “This act was held to be constitutional in state to bring from another state into the the case of Re Rahrer, supra, and that by state of his residence, and keep therein, for virtue of said act state statutes might oper- his personal use, the merchandise referred to ate upon the original packages of intoxicating in the Wilson act. In other words, as in the liquors before sale in the state. Rhodes v. case at bar, delivery had not taken place Iowa and Vance v. W. A. Vandercook Co. when the seizures were made, and the consupra, held that the state statute must per- trol of the state over the goods had not atmit the delivery of the liquors to the party tached, we are not called upon to consider to whom they were consigned within the whether, if the power of the state had atstate, but that, after such delivery, the tached by delivery, the state might not have state had power to prevent the sale of the levied upon the goods on the charge that liquors, even in the original package.” they had not been bona fide brought into the

As the general principle is that goods state, and were not held by the consignees moving in interstate commerce cease to be for their personal use, and, therefore, were such commerce only after delivery and sale not within the ruling in Vance v. W. A. in the original package, and as the settled Vandercook Co., supra. rule is that the Wilson law was not an

The conclusion that the court below erred abdication of the power of Congress to regu- in declining to follow the prior rulings of late interstate commerce, since that law this court construing the Wilson act disposes simply affects an incident of such commerce of the entire controversy arising on the by allowing the state power to attach after record before us, for the following reasons: delivery, and before sale, we are not con- In its answer filed in the trial court the railcerned with whether, under the law of any road company substantially defended alone particular state, the liability of a railroad upon the ground that the seizure was rightcompany as carrier ceases and becomes that ful. And the supreme court of Georgia of a warehouseman on the goods reaching treated the liability of the defendant as their ultimate destination, before notice and depending solely upon the validity of the before the expiration of a reasonable time seizure. The court said: for the consignee to receive the goods from "If [the goods]

were still in the the carrier. For, whatever may be the course of interstate transportation, the divergent legal rules in the several states seizure by the constable was not even prima concerning the precise time when the lia- facie legal, for the very law under which the bility of a carrier, as such, in respect to the seizure was made had, prior to such seizure, carriage of goods, ends, they cannot affect been declared by the Supreme Court of the the general principle as to when an inter- United States to be unconstitutional in so state shipment ceases to be under the pro- far as it interfered with interstate comtection of the commerce clause of the Consti.merce. Scott v. Donald, 165 U. S. 58, 41 L. tution, and thereby comes under the control ed. 632, 17 Sup. Ct. Rep. 265. It therefore of the state authority.

follows that if the shipment had not been 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 Florida, for the transportation of phosphate defend on the ground that it submitted to from points in the state to points within the the superior authority, granting that such state, shall not exceed 1 cent per ton per a defense, if established, would relieve it mile. from liability." [118 Ga. 618, 45 S. E. 492.] “Provided, however, that where the rate

Moreover, in this court, counsel, in their of 1 cent per ton per mile will raise any brief on behalf of the defendant in error, rate now in operation, that said rate of 1 rely exclusively upon the correctness of the cent per ton per mile shall not be effective, construction given to the Wilson act by the but the rate as now charged by the railcourt below, and do not urge, in the event road companies is hereby adopted by the such construction be not sustained, that it railroad commissioners as their rate between was exempt for any reason whatever from such points. liability,

"It is therefore ordered, that where a shipThe judgment of the Supreme Court of ment of phosphate shall pass over two or Georgia is reversed, and the case is remand-more railroads in reaching its destination ed to that court for further proceedings not within the state of Florida, the initial line inconsistent with this opinion.

may charge 11/2 cents per ton per mile for Reversed.

the first ten miles which said phosphate shall be hauled.”

The railroad company, plaintiff in error, ATLANTIC COAST LINE RAILROAD which was a party to the proceedings before COMPANY, Plff. in Err.

the commission, not complying with this V.

order, application was made on March 7, STATE OF FLORIDA upon the Relation of 1904, to the supreme court of the state for

W. H. ELLIS, as Attorney General of Said a writ of mandamus to compel compliance, State, and J. M. Barrs, as Special Counsel and on October 19, 1904, the peremptory for Jefferson B. Browne et al., Railroad writ was ordered by that court, as prayed Commissioners of Said State.

for. 48 Fla. 146, 37 So. 657. Thereupon the

railroad company sued out this writ of erEvidence — sufficiency — reasonableness of

ror. state regulation of railroad rates. The evidence is insufficient to justify

No special findings of fact were made by a refusal to enforce an order of a state rail the supreme court, but in its opinion it road commission fixing local rates for carry

said: ing phosphates on any objection based on “There is a total lack of positive proof the due process of law and equal protection that the commission rate is materially less of the laws clauses of the 14th Amendment than that now charged. The company to the Federal Constitution, where there is proves merely that its books do not show no evidence from which a reasonable de that any local phosphate has been carried duction can be made as to the cost of trans- by it, but does not show what rate it portation, the amount of phosphates transported, or the effect which the rate estab-charges on the interstate shipments of phoslished by the commission will have upon | phata. There is some showing of the exthe income of the carrier.

pensiveness of handling phosphate for for

eign shipment, much of which would not [No. 9.]

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 3, 1906.

fixed by the commission is unreasonable.

The evidence offered might tend to show IN ERROR to the Supreme Court of the that the rate is unnecessary or that it is

State of Florida to review a judgment speculative, but such questions the court is awarding a peremptory writ of mandamus not called upon to decide. to enforce an order of the state railroad commission, fixing the local rates for carry- “Taking the figures from the brief filed ing phosphates. Affirmed.

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.

least 3 per cent on the total value of the

road in Florida, charging against such in. Statement by Mr. Justice Brewer:

come the whole of the taxes. While a state On December 17, 1903, the railroad com- is not permitted to offset local business mission of the state of Florida, after notice against interstate business, and to justify and a hearing, made an order:

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. Teign 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 tha 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 the commission. There is testimony tendan income from local business; there is, ing to show the gross income from all local however, a showing that the interstate and freights and the value of the railroad propforeign business is large and, on a proper erty, and also certain difficulties in the showing and a proper proportioning of the way of transporting phosphates, owing to service between domestic and foreign busi- the lack of facilities at the terminals. But ness, this percentage of net income would there is nothing from which we can deterbe largely increased.

mine the cost of such transportation. We

are aware of the difficulty which attends “Under the burden of proof cast by tha proof of the cost of transporting a single law upon the respondent, we find that the article, and, in order to determine the rearate in question is not unreasonable.” sonableness of a rate prescribed, it may

sometimes be necessary to accept as a basis Mr. John E. Hartridge for plaintiff in er. the average rate of all transportation per ror.

ton per mile. We shall not attempt to inMessrs. J. M. Barrs and W. H. Ellis for dicate to what extent or in what cases the defendant in error.

inquiry must be special and limited. It is

enough for the present to hold that there Mr. Justice Brewer delivered the opinion is in the record nothing from which a reaof the court:

sonable deduction can be made as to the Passing all matters of a local nature, in cost of transportation, the amount of phos. respect to which the decision of the state phates transported, or the effect which the court is final, the Federal question is wheth-rate established by the commission will have er the order of the railroad commission, upon the income. Under these circumstansustained by the supreme court of the stat?, ces it is impossible to hold that there was deprived the company of its property with error in the conclusions reached by the Suout due process of law, or denied to it the preme Court of the State of Florida, and equal protection of the law. The testimony its judgment is affirmed. 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, Piff. in just and reasonable. Florida Laws 1899,

Err.,

V. chap. 4700, § 8, pp. 76, 82. We start, therefore, with the presumption in favor of the STATE OF FLORIDA upon the Relation of

W. H. ELLIS, as Attorney General of order.

Said State, et al. The testimony on the hearing of the application in the supreme court is, however, Constitutional law_due process of lawin the record. That court, in the exercise state regulation of railroad rates. of its original jurisdiction of mandainus 1. State regulation of local freight rates cases, determines questions of fact as well for shipments to and from the Florida West as of law. State ex rel. Columbia County Shore Railway and over the Seaboard Air v. Suwannee County, 21 Fla. 1. While it Line Railway does not deprive the latter did not make any distinct findings of fact, law, even if its total receipts from local

road of its property without due process of yet its deductions from the testimony are freight rates are insufficient to meet what clearly indicated by the quotations from can properly be cast as a burden upon that its opinion. If it be said that, in the ab- business, where, so far as appears, such regsence of special findings of fact, it is the ulation may have no other effect than to duty of this court to examine the testimony make the rates on the Florida West Shore upon which the judgment was entered, it Railway the same as those obtaining genis very clear that there was no sufficient erally in the state. evidence presented to that court to justify Constitutional law-due process of law a refusal to enforce the order of the rail.

state regulation of railroad rates. road commission.

2. Carriers may be forbidden by the

state railroad commission to make their loAnd 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

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