Lest others may be unjustly criticised for my shortcoming, I want to say that I am solely responsible for the delay in the filing of the decision of the Court in this case. The opinion of the Chief Justice was prepared before the case was heard by the Courten Banc. The opinion of Mr. Justice Fraser was prepared and sent to me within a few weeks thereafter. Since then the papers have been in my hands. Circumstances beyond my control have prevented the preparation of this opinion at an earlier date. I venture to think, however, that the importance of the question involved to the people of this State justifies the taking of all the time that was necessary for its thorough consideration.
The action was brought to recover the penalty of five dollars a day, which the statute of this State (25 Stats., 490) allows consignees, who are injured by the delay, to recover of carriers for every day of unreasonable delay in the transportation of freight within this State. The defendant received the shipment March 5th, but failed to carry it to destination till April 6, 1907, a delay of more than thirty days, notwithstanding the distance between the points of shipment and destination is not over two hundred miles. Notwithstanding both points are within this State, defendant's road runs for a distance of some twenty miles outside the State and through the city of Augusta, Ga. This circumstance affords the defense chiefly relied upon, to wit: that the shipment was interstate, and, therefore, the State statute does not apply; and, if it does, that it is void, because it is an unlawful interference with and burden upon interstate commerce.
The Court instructed the jury as follows: "If the jury find that the car was delayed in South Carolina by reason of conditions existing on the road of defendant in the State of Georgia, then you must find for the defendant. If the jury find that the delay in the shipment occurred wholly within this State, then I charge you that the plaintiff is *Page 49 entitled to recover five dollars per day for every day the car was delayed in this State, less the time allowed by the statute, Sundays excluded, provided you find that the delay was not brought about by good and sufficient cause. If you find that the delay was brought about by good and sufficient cause, you must find for the defendant, or if you find that the delay occurred in the State of Georgia, you must find for the defendant." Under these instructions the verdict of the jury settles the question of fact in plaintiff's favor that the shipment was unreasonably delayed while it was within this State, and that the delay was due to conditions existing wholly within this State. The questions raised by the exceptions, other than the validity of the statute, as applied to the shipment in question, do not require discussion.
The title of the act is: "An act to prevent delays in the transportation of freight in this State." What kind of delays did the legislature have in mind? The language of the title answers, "delays in the transportation of freight." Occurring where? Answer, "within this State." It is clear, therefore, that the legislature realized and had in mind the limitations upon its power, and knowing that it could not penalize delays occurring beyond the borders of the State, did not attempt to do so; but, by the language used, made it clear that its intention was to penalize only such delays as occurred within its jurisdiction. This intention is shown also by a consideration of the act as a whole and especially by the language of the first part of the first section, which reads: "That * * * every common carrier doing business in this State shall transport to its destination all freight received by them for transportation within this State within a reasonable time after receipt thereof, not exceeding the following times, after midnight of the day of the receipt thereof, to wit: Between points not over one hundred miles apart, seventy-two hours; between points over one hundred and not over two hundred miles apart, ninety-six hours; *Page 50 and between points over two hundred miles apart, one hundred and twenty hours." To limit the meaning of the words "within this State," here used solely to a modification of the word "transportation," so as to make the language mean that the physical act of transporting must be wholly within the State, is a construction so narrow and technical as to do violence not only to the legislative intent, but also to the legislative intelligence. The Court knows, and must assume that the legislature knew, that some of the railroad companies doing business in this State, and especially the larger systems, transport great quantities of freight from point to point within the State by carrying it over lines which run in part beyond the borders of the State. The language used, construed in the light of this fact, plainly shows the intent that the act should apply to all shipments from one point in the State to another point in the State, without regard to whether the actual physical movement was wholly within the State at every stage thereof or not.
In the first place, it will be conceded that the shipment in question is interstate. This Court has expressly decided that point. Hunter v. Ry., 81 S.C. 173, 62 S.E. 13. But it does not follow by any means that, because it is an interstate shipment, the carrier cannot be penalized under the State law for delay in the transportation of such a shipment, occurring wholly within the State. It seems to me that the fundamental error into which some of my learned brethren have fallen is that, because the shipment is interstate it necessarily follows that the carrier is not subject to the State law with regard to the transportation of it. The power of the States to compel, by proper legislation, interstate carriers and others engaged in interstate commerce to discharge their duties to the public, either those imposed by the common law or by statutes reasonably exerting the police power of the State, has been affirmed so often by the Supreme Court of the United States, whose decisions upon that question are final and controlling, that it can no longer *Page 51 be questioned. That great Court has never denied the power of the States, in the absence of any regulation by Congress, to enact such laws when they are only a reasonable exercise of the police power of the States and do not burden or interfere with interstate commerce, although they may incidentally affect it. I shall, therefore, rely chiefly upon the decisions of that Court to sustain the application of the statute of this State to the shipment in question.
Celerity in the movement of freight is of the utmost importance in the promotion of commerce. The statute in question, so far from hindering or burdening commerce, is actually an aid to it by stimulating the carriers to the exercise of proper diligence in the transportation of freight. "A State statute imposing a penalty on railroad companies for the detention of freight more than a limited time after it is received for shipment, without the consent of the shipper, is not void as a regulation of interstate commerce even as applied to freight to be shipped to another State, since the enforcement of such statute would expedite and not obstruct interstate traffic." 17 A. E. Enc. L. 2 ed. 103.
In Sherlock v. Ailing, 93 U.S. 99, 23 L. ed. 819, Mr. Justice Field, speaking for the Court, said: "It may be said generally, that the legislation of a State, not directed against commerce or any of its regulations, but relating to the rights, duties and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit."
In Western Union Tel. Co. v. James, 162 U.S. 650,40 L. ed. 1105, a statute of the State of Georgia, imposing a penalty on telegraph companies for failure to transmit and deliver telegrams "with impartiality and good faith and with due diligence," was sustained and enforced in its application to an interstate telegram. The statute was assailed *Page 52 upon the same ground as the statute here in question, to wit, that it infringed upon the power vested in Congress by the Constitution "to regulate commerce with foreign nations and among the several States." The Court held that telegraphic messages from one State to another constitute a part of interstate commerce, and come within the protection of the commerce clause of the Constitution; that if the statute could be construed as regulating commerce between the States, it was void; that enactments which may incidentally affect interstate commerce and the persons engaged in it, do not necessarily constitute regulations of that commerce within the meaning of the Constitution; that "legislation which is a mere aid to commerce may be enacted by a State, although at the same time it may incidentally affect commerce;" that a provision for the delivery of telegraphic messages at a station within the State need have no effect upon the conduct of the telegraph company with regard to the performance of its duties outside the State; that obedience to the statute would not unfavorably affect the company or embarrass it in the course of its business, and, hence, in the absence of any regulation by Congress, the statute was valid. As observed by the Court in that case, the statute undertook to do nothing more than compel the telegraph company to perform its duty. The Court said: "The statute in question is of a nature that is in aid of the performance of a duty of the company that would exist in the absence of any such statute, and it is in nowise obstructive of its duty as a telegraph company. It imposes a penalty for the purpose of enforcing this general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would own in the absence of such a statute. Can it be said that the imposition of a penalty for the violation of a duty which the company owed by the general law of the land is a regulation of or an obstruction to interstate commerce within *Page 53 the meaning of that clause of the Federal Constitution under discussion? We think not. No tax is laid upon any interstate message, nor is there any regulation of a nature calculated to at all embarrass, obstruct, or impede the company in the full and fair performance of its duty as an interstate sender of messages. We see no reason to fear any weakening of the protection of the constitutional provision as to commerce among the several States by holding that, in regard to such a message as the one in question, although it comes from a place without the State, it is yet under the jurisdiction of the State where it is to be delivered (after its arrival therein at the place of delivery), at least so far as legislation of the State tends to enforce the performance of the duty owed by the company under the general law. So long as Congress is silent upon the subject, we think it is within the power of the State government to enact legislation of the nature of this Georgia statute. It is not a case where the silence of Congress is equivalent to an express enactment." Again, the Court said: "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. We think the statute in question is one of that class, and in the absence of any legislation by Congress the statute is a valid exercise of the power of the State over the subject."
That case cannot be distinguished in principle from this; for unquestionably it is the duty of carriers, under the general law, to transport freight to its destination within a reasonable time after receipt of it. The statute we are now considering imposes no new duty. It only penalizes the failure to perform the duty imposed by the general law, and implied as an element of the contract of carriage. *Page 54 While it fixes the limits of time within which shipments shall be carried from place to place within given distances, it, in effect, if not in terms, declares the times so fixed to be reasonable, and it even goes further and allows the carrier to relieve itself from the liability incurred by failing to comply with its provisions by proving that such failure was due to good and sufficient cause. But it was expressly decided in Western Union Tel. Co. v. Commercial Milling Co.,218 U.S. 406, 54 L. ed. 1088, that "a regulation of interstate commerce which would be valid if rested upon the common law of the State is no less valid because made by a State statute." (Syllabus.) In that case a statute of Michigan, which made telegraph companies liable in damages for mistakes, errors or delays caused by negligence in the transmission or delivery, or for the nondelivery of any repeated or unrepeated message, was sustained, notwithstanding it was applied in a case where the message was sent from the State of Michigan into the State of Missouri, and the negligence by which it was lost occurred in the State of Illinois.
In Chicago etc. R. Co. v. Solan, 169 U.S. 133,42 L.ed. 688, the validity of a statute of Iowa, prohibiting railroad companies from limiting their liability as common carriers, was affirmed and applied, though the plaintiff was injured while on an interstate train and making an interstate journey. The Court said: "Railroad corporations, like all other persons and corporations doing business within the territorial jurisdiction of a State, are subject to its law. It is in the law of the State that provisions are to be found concerning the rights and duties of common carriers of persons or of goods, and the measures by which injuries resulting from their failure to perform their obligations may be prevented or redressed. Persons traveling on interstate trains are as much entitled, while within a State, to the protection of that State as those who travel on domestic trains. A carrier exercising his calling within a particular State, although engaged in the business of interstate *Page 55 commerce, is answerable, according to the law of the State, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law. It is equally within the power of the State to prescribe the safeguards and precautions foreseen to be necessary and proper to prevent by anticipation those wrongs and injuries, which, after they have been inflicted, the State has the power to redress and to punish. The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property otherwise endangered by their use, are strictly within the scope of the local law. They are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits."
The last decision by the Supreme Court of the United States upon this subject is Western Union Tel. Co. v. Crovo,220 U.S. 364, 55 L. ed. 498, and it is directly in point. A statute of the State of Virginia made it the duty of telegraph companies doing business in the State to receive and transmit dispatches faithfully, impartially and with substantial accuracy, as promptly as practicable, and in the order of delivery to the company, with the privilege of giving preference to certain classes of messages, and imposed a penalty of one hundred dollars for failure to comply with its provisions. Crovo delivered a message to be sent from Richmond, Va., to Brockton, N.Y. He sued for and recovered *Page 56 the penalty for the negligent failure to promptly transmit the message, alleging that the negligence occurred within the State, to wit, in the office at Richmond. The Court, per Mr. Justice Lurton, states the question to be decided as follows: "The only question for decision is whether a statute of the State of Virginia which imposes a penalty for the failure to transmit a dispatch received at an office of the company in the State, for transmission to a person in another State, is a valid exercise of the power of the State, the delay occurring in the State." The answer to that question is given by the Court in the following language: "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 of, nor a hindrance to, interstate commerce, but is in aid of that commerce. The case is clearly governed by Western U.Tel. Co. v. James and Western U. Tel. Co. v. CommercialMilling Co., both above cited." Upon what principle can that case be distinguished from this? In Bagg v. Wilmingtonetc. R. Co. (N.C.), 14 L.R.A. 596, the Supreme Court of North Carolina held that "a State statute compelling the shipment of freight within a certain time after receiving it, under a penalty for default, is not an unconstitutional regulation of interstate commerce, as to freight for shipment out of the State, as it tends not to trammel or obstruct, but to expedite such commerce." (Syllabus.) That case is also directly in point. The statute imposed a penalty of twenty-five dollars a day for every day over five that any railroad allowed freight received by it for shipment to remain unshipped. The Court held the statute valid as a proper exercise of the power of the State, as applied in a case where the shipment was from a point in North Carolina to a point in South Carolina. A like principle was involved and decided by this Court and sustained by the Supreme Court of the United States in A.C.L.R.Co. v. Mazursky, 216 U.S. 121, 54 L. ed. 411, where the *Page 57 validity of the statute of this State imposing a penalty of fifty dollars on common carriers for failure to adjust and pay, within the times therein specified, claims for loss of or damage to freight while in the possession of such carriers, was affirmed, though it was applied to interstate shipments. To the same effect is the case of Skipper v. Ry., 75 S.C. 276, sustaining section 1710, volume I, Code 1902, as applied to interstate shipments, and the principle there decided has been affirmed by the Supreme Court of the United States. Richmond etc. R. Co. v. R.A. PattersonTob. Co., 169 U.S. 309, 42 L. ed. 759.
Under the reasoning and authority of the cases hereinbefore cited, I conclude that the statute under consideration is not an unlawful interference with or burden upon interstate commerce, when applied to delays occurring wholly within the State; and that it was intended to be applied only in cases of delay occurring within the State.
Therefore, I think the judgment of the Circuit Court should be affirmed.
MESSRS. CIRCUIT JUDGES H.F. RICE and T.S. SEASEconcur.