I feel bound to file a dissent to the opinion of the majority of the Court en Banc in this case on account of the exceeding great importance of the questions involved.
Railroads are quasi public highways. It is the State's business to maintain highways, and when the State allows its business to be conducted by private persons or corporations, it ought not to lose its power to control the management of them. If the Federal Supreme Court shall limit the power of this State to control its own affairs, it will be time enough to concede the loss. If this Court surrenders the State's rights the State is helpless. If this Court erroneously upholds the State's power to control the highways within *Page 58 its borders, there is a right of appeal to the Supreme Court of the United States and the error can be corrected. The respondent here would have no standing with the Federal authorities. He concedes they have no jurisdiction. The power of this State to control commerce between its own citizens ought not to be surrendered.
In the view I take of this case, it is necessary to consider appellant's last exception. The appellant refers us toFrasier Co. v. Ry. Co., 81 S.C. 161, 62 S.E. 14. In that case it appears that the strike had been on for more than a month when appellant undertook to transport this carload of guano. It is true that in the absence of instructions, the transportation company has the right to fix the route, but in fixing the route it seems to me they are bound to fix a possible route and when they fix a route they know to be an impossible route, they are responsible for nondelivery in the specified time.
The statute allows the transportation company to change the route designated by the shipper when the designated route will be interrupted or incapable of being used at the time, by strike or casualty, preventing the running of its trains.
As to the interstate commerce feature of this case, I would say: Commerce is the interchange of commodities between the contracting parties. When the contracting parties are citizens of different States our scheme of government has placed the control in the Federal government, which is common to both. Where the contracting parties are citizens of the same State, the control is assigned to the State of which both are citizens. The line of division between these two ought to be clearly defined. The Federal government ought to be accorded cheerful obedience in its management of interstate commerce, but the State Courts ought to be jealous to guard the rights of the State to control intrastate commerce. Now is this inter or intra state commerce? Both of the contracting parties are residents of *Page 59 this State. Both termini are situated in this State. It does not seem to me that the bare fact that in the course of transportation it passed for a short distance beyond the limits of the State can change the nature of the transaction.
It is said that transportation is a part of commerce. Manifestly this is true. Otherwise there would be little intrastate commerce and no interstate commerce. It seems to me that the contract of the parties and not the method of transportation fixes the nature of the commerce, and the jurisdiction of the Federal and State governments. It seems to me that the case of State v. Holleyman, 55 S.C. sustains this view where the method of transportation was the most primitive, but protected by the nature of the contract.
The fact that the State of South Carolina cannot punish an offense committed in Georgia, does not deprive the State of the power to punish for an offense committed in South Carolina.
The Lehigh Valley Railroad Co. v. The Commonwealthof Pennsylvania, 145 U.S. 192-205: The tax under consideration here was determined in respect of receipts for the proportion of the transportation within the State, but the contention is that this could not be done because the transportation was an entire thing, and in its course passed through another State than that of the origin and destination of the particular freight and passengers. There was no breaking of bulk or transfer of passengers in New Jersey. The point of departure and the point of arrival were alike in Pennsylvania. The intercourse was between those points and not between any other points. Is such intercourse, consisting of continuous transportation between two points in the same State, made interstate because in its accomplishment some portion of another State may be traversed? Is the transmission of freight or messages between two places in the same State made interstate business by the deviation of the railroad or telegraph line on to the soil of another *Page 60 State? * * * It should be remembered that the question does not arise as to the power of any other State than the State of the termini, nor as to taxation upon the property of the company situated elsewhere than in Pennsylvania, nor as to the regulation by Pennsylvania of the operations of this or any other company elsewhere, but it is simply whether, in the carriage of freight and passengers between two points in one State, the mere passage over the soil of another State renders that business foreign, which is domestic. We do not think such a view can be reasonably entertained, and are of opinion that this taxation is not open to constitutional objection by reason of the particular way in which Pennsylvania was reached from Mauch Chunk."
I do not see that the Lehigh Valley case is overruled by any of the cases cited. In these cases there was an effort to fix charges for transportation and to punish for offenses committed outside of the States whose laws were invoked. Of course they failed. The State cannot control transportations outside of their territorial limits. The question in each case was the jurisdiction of the several arms of the State government and the Courts held that these arms could not reach so far. It is true in the case of Frasier Co. v.The Railway, the Court does call it interstate business, but when the Court said, "there was no evidence that the delay occurred in this State," it was without jurisdiction to render any judgment except to dismiss the proceedings. The same is true of the Hunter case.
In the Hawley case and the Sternberger case the question was the right of State railroad commissions to fix rates outside of the State, and it is conceded that they had none. The nature of the commerce was not involved, therefore, the name by which it was called is not binding.
In the case at bar the contracting parties were of this State, the termini in this State, and the delay for which judgment was given occurred in this State. *Page 61
It is my opinion that the judgment of the Court below ought to be sustained.