The question involved in this case is the constitutionality of section 2, art. 2, c. 10, of Sess. Laws 1905 (Comp. Laws 1909, p. 144, sec. 521). That section is as follows:
"It shall be the duty of every railroad company operating a line of road wholly or in part within this state for the transportation of freight, upon the verbal or written application of any shipper to its station agent or other agent in charge of transportation of freight for a car or cars to be loaded with freight other than perishable freight or live stock, stating the character of the freight and its final destination, to furnish said car or cars within four days from seven o'clock a. m. of the day following such application. Or, when such application specifies a future day when said car or cars are required, giving not less than four days' notice thereof computing from seven o'clock a. m. of the day following such application, it shall be the duty of said company to furnish said cars or car on the day specified in said application. For failure to comply with this section said company shall forfeit and pay to the shipper applying for said car or cars the sum of one dollar per car per day or fraction of a day's delay after free time, together with all actual damages said applicant may sustain thereby: Provided, that if in case of fire, washouts, strikes, lockouts, or other unavoidable casualties such railroad company shall not be able to furnish such cars within such time, then and in that event such time of demurrage shall not begin to run until such obstacles and hindrances are removed."
The argument is made that the section conflicts with the commerce clause of the Constitution of the United States, by which Congress is vested with power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Article 1, sec. 8. It is, of course, thoroughly established that this power of Congress to regulate interstate *Page 323 commerce is exclusive, and as extensive as the commerce which is to be regulated. It is likewise thoroughly established that the state has full power to regulate intrastate commerce, and that neither the state nor the United States can enter upon or occupy the field exclusively committed to the other. It is likewise thoroughly settled that the states did not grant unto the United States their police power, and that, consequently, they retained it, and, having retained it, it is a function which they not only have the right to exercise, but which it is their duty to exercise. The inquiry, therefore, is whether this statute regulates interstate commerce, or whether it is a mere exercise of the state's police power; whether its design is to obstruct interstate commerce, or merely to facilitate the movement of freight, both inter and intrastate.
It seems clear to us that the purpose of the statute is the latter, and not the former. The prompt movement of the cars for interstate commerce cannot be a burden upon it, but an aid to it; and, if this statute affects interstate commerce, it is merely incidental and in aid of it. Western Union Tel. Co. v.Cravo, 220 U.S. 364, 31 Sup. Ct. 399, 55 L.Ed. 498, decided April 3, 1911, involved the constitutionality of a Virginia statute imposing upon telegraph companies the duty of transmitting dispatches faithfully, impartially, and promptly, and imposing a penalty of $100 for unreasonable delay. The action was brought by the plaintiff to recover the penalty for delay in transmitting a message from Richmond, Va., to Brockton, N.Y., and the telegraph company contended that the statute was a regulation of interstate commerce, and therefore void. In the opinion by Mr. Justice Lurton the court denied this contention, and said:
"The requirement of the Virginia statute, as here applied, is a valid exercise of the power of the state, in the absence of legislation by Congress. It is neither a regulation nor a hindrance to interstate commerce, but is in aid of that commerce."
In Chicago, R.I. P. Ry. Co. v. Arkansas, 219 U.S. 453, 465, 31 Sup. Ct. 275, 278, 55 L.Ed. 290, decided February 20, 1911, the Supreme Court upheld the statute of Arkansas prescribing a minimum of three brakemen for freight trains of *Page 324 more than 25 cars and denied the contention that such a statute was a regulation of interstate commerce. In the opinion Mr. Justice Harlan says:
"It is not too much to say that the state was under an obligation to establish such regulations as were necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Beyond doubt, passengers or interstate carriers, while within Arkansas, are as fully entitled to the benefits of valid local laws enacted for the public safety as are citizens of the state. Local statutes directed to such an end have their source in the power of the state, never surrendered, of caring for the public safety of all within its jurisdiction; and the validity under the Constitution of the United States of such statutes is not to be questioned in a federal court, unless they are clearly inconsistent with some power granted to the general government, or with some right secured by that instrument, or unless they are purely arbitrary in their nature. The statute here involved is not in any proper sense a regulation of interstate commerce, nor does it deny the equal protection of the laws. Upon its face it must be taken as not directed against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce, and for the protection of those engaged in such commerce."
In Western Union Tel. Co. v. Commercial Milling Co.,218 U.S. 406, 31 Sup. Ct. 59, 54 L.Ed. 1088, decided November 28, 1910, a statute of Michigan was upheld which prohibited telegraph companies from limiting their liability on account of a negligent failure to deliver a telegram, even though addressed to a person in another state, and the contention that such a statute was a regulation of interstate commerce was denied.
In Atlantic Coast Line R. Co. v. Mazursky, 216 U.S. 122, 30 Sup. Ct. 378, 54 L.Ed. 411, a South Carolina statute was upheld which penalized the failure of a common carrier to adjust and pay, within a specified time, claims for loss or damage, and the contention that such a statute was a regulation of interstate commerce was denied. Mr. Chief Justice Fuller, in delivering the opinion of the court, quotes with apparent approval, on page 132 of 216 U.S. and page 381 of 30 Sup. Ct. (54 L.Ed. 411), the following language from Seegers Bros. v.Seaboard Air Line R. Co., 73 S.C. 71, 73, 52 S.E. 797, 121 Am. St. Rep. 921: *Page 325
"The duty to make prompt settlement for loss or damage to goods is but an incident of the duty to transport and deliver safely and with reasonable diligence. The statute in question was designed to effectuate an important public purpose, viz., to compel the common carrier to perform with reasonable diligence the duty which peculiarly appertains to his business as a carrier of freight. The penalty is but a means to that end."
And see same case, 207 U.S. 73, 28 Sup. Ct. 28, 52 L.Ed. 108.
In Western Union Tel. Co. v. James, 162 U.S. 650, 16 Sup. Ct. 934, 40 L.Ed. 1105, a statute of Georgia imposing a penalty for the failure to diligently deliver to the person addressed in Georgia an interstate message was upheld as a valid exercise of the state's power and not a regulation of interstate commerce, and in the opinion Mr. Justice Peckham says:
"While it is vitally important that commerce between the states should be unembarrassed by vexatious state regulations regarding it, yet on the other hand, there are many occasions where the police power of the state can be properly exercised to insure a faithful and prompt performance of duty within the limits of the state upon the part of those who are engaged in interstate commerce."
In Patterson v. Missouri Pacific R. Co., 77 Kan. 236, 94 P. 138, 15 L. R. A. (N. S.) 733, a statute very similar to ours was considered and upheld. The Kansas statute imposed a penalty of $1 per day for failure to furnish the cars, but provided "that the provisions of this law shall not apply in cases of strikes, unavoidable accidents, and other public calamities," while the exception of our statute is that the penalty does not apply "in case of fire, washouts, strikes, lockouts, or other unavoidable casualties."
In Hardwick Farmers' Elevator Co. v. Chicago, R.I. P. Ry.Co., 110 Minn. 25, 124 N.W. 819, a similar demurrage act was sustained, which imposed a penalty of $1 per day for delay, and the exception of the statute was in the case of "strikes, public calamities, accidents, or any cause not within the power of the railroad company to prevent, or during which the loading or unloading of freight by shipper or consignee is delayed by reason of inclement weather which would make loading or unloading *Page 326 impracticable, or any cause not in the power of said shipper or consignee to prevent."
In Stone Co. v. Atlantic Coast Line Ry. Co., 144 N.C. 220,56 S.E. 932, the validity of the North Carolina demurrage law was involved. By this law a penalty was imposed for unreasonable delay, and it was provided that a greater delay than two days at the initial point, and 48 hours at one intermediate point for each 100 miles, was prima facie unreasonable. This act was held valid.
In Southern Ry. Co. v. Melton, 133 Ga. 277, 65 S.E. 665, a rule of the Railroad Commission of Georgia requiring railroads to furnish cars within four days after demand, under penalty of $1 a day, was upheld.
In Houston T. C. R. Co. v. Mayes, 201 U.S. 321, 26 Sup. Ct. 491, 50 L.Ed. 772, a demurrage act of Texas was held to be an unconstitutional regulation of interstate commerce which imposed a penalty of $25 a day for each car not furnished, and which only excused the railroad for failure to furnish because of "strikes or other public calamity." The opinion was delivered by five of the justices; one not participating and three dissenting. The power of the state to compel the railroads to furnish adequate facilities for the movement of commerce, whether state or interstate, was conceded; but it was held that the imposition of the duty to furnish cars at a specified time, regardless of every consideration except "strikes or other public calamity," under a penalty of $25 per day per car for failure to do so, was an unreasonable and arbitrary requirement. In delivering the opinion Mr. Justice Brown says:
"Although it may be admitted that the statute is not far from the line of proper police regulation, we think that sufficient allowance is not made for the practical difficulties in the administration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the Legislature."
Under the authority of the Mayes case, therefore, as well as all the other decisions on the subject, the subject-matter of this statute is rightfully within the power of the Legislature, and in order for the courts to strike it down we must be able to say that it is so arbitrary and unreasonable as to transcend the limits *Page 327 of the state's power. We cannot reach this conclusion. Whether cars should be furnished within one day, or four, or six may be a matter upon which different men would have different opinions; but it is certainly a subject as fully within the knowledge of the Legislature as it is that of the courts, and we cannot say that a requirement that they should be furnished within four days is arbitrary and unreasonable. It certainly is not a burden on interstate commerce. But the Legislature has not made this an absolute requirement, but excuses the railroad in the event of the contingencies named in the statute. We are asked to so construe these contingencies and exceptions as to make the act unconstitutional. But where two constructions are available, one of which will uphold the act, while the other will strike it down, it is the duty of the courts to take the former course. Patterson v. Missouri Pacific R. Co.,77 Kan. 236, 94 P. 138, 15 L. R. A. (N. S.) 733; Hardwick Farmers'Elevator Co. v. Chicago, R.I. P. Ry. Co., 110 Minn. 25, 124 N.W. 819; Udall Milling Co. v. Atchison, T. S. F. Ry. Co.,82 Kan. 256, 263, 108 P. 137, 139.
In the case at bar the defendant merely filed a general denial. It did not plead or undertake to prove any facts which would make the application of the statute unreasonable, but merely stood upon the naked proposition that the statute, on its face, is so unreasonable and arbitrary as to be void. The meaning of the words "unavoidable casualty" can better be ascertained by applying them to concrete cases, and, as there are no facts before us, we cannot apply the words in this case; but it is manifest that the exceptions of our statute are so much broader than the exceptions of the Texas statute involved in the Mayes case that that case is not controlling, and it is sufficient to say that, when a railroad company cannot furnish cars on account of any casualties beyond its control, the statute will not apply.
All the other assignments of error are disposed of by what we have already said, except the fifth, which attacks the rulings of the court on the admission of evidence. On the cross-examination of the plaintiff, the defendant inquired whether cars were scarce that fall, whether plaintiff had any trouble in getting cars, *Page 328 and whether he got as many as other dealers. This was objected to as improper cross-examination, and the objection was sustained. We do not think this was error. If the defendant relied upon such a defense, it should have been pleaded and proven; and this could not be done by the examination of the plaintiff, when his examination in chief did not legitimately present the matter.
For the reasons herein stated, the judgment of the trial court should be affirmed.
By the Court: It is so ordered.
ON REHEARING.