
227 U.S. 456 (1913)
HAMPTON
v.
ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY.
No. 3.
Supreme Court of United States.
Argued October 29, 30, 1912.
Decided February 24, 1913.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
*458 Mr. Hal L. Norwood, Attorney General of Arkansas, and Mr. Maurice M. Cohn for appellants, submitted.
Mr. Lovick P. Miles, with whom Mr. Martin L. Clardy was on the brief, for appellee.
*462 MR. JUSTICE LURTON, after making the above statement, delivered the opinion of the court.
The single purpose of this case is to prevent the bringing of actions at law in the name of the State and by order of the State Railroad Commission to recover penalties prescribed by the Arkansas act of March 11, 1899, §§ 11 and 18, for the violation of the provisions of § 11 of the act referred to, and of § 1 of the act of April 19, 1907. The case turned below upon the single question of the constitutionality of the act of April 19, 1907, being an act entitled, "An Act to regulate freight transportation by railroad companies doing business in the State of Arkansas." The only parts of that act here in any way involved are the first paragraph of the first section, and the last clause in the seventeenth section. The paragraph of the first section is the legislative authority under which the Commission finds power to make its order No. 346, concerning the duty of carriers to furnish cars upon the demand of shippers, its said order being in the very words of that paragraph, as follows:
*463 "That when a shipper makes a written application to the station agent of a railroad company for a car or cars, to be loaded with any kind of freight embraced in the tariff of said company, stating in said application the character of freight, and its final destination, the railroad company shall furnish same at the place of shipment within six days from 7 o'clock A.M. the day following such application."
The clause concluding the seventeenth section of the act is in these words:
"Interstate railroads shall furnish cars on application for interstate shipments the same in all respects as other cars to be furnished by intrastate railroads under the provisions of this Act."
The order of the Commission directed the bringing of actions against the defendant in error for the wilful violation of the provisions of § 1, set out above, and also for an illegal discrimination under § 11 of the act of March 11, 1899, referred to above. That section forbids any discrimination or preference in furnishing cars and requires equal facilities to all under like circumstances and conditions.
By agreement of the parties, recited in the decree below, and repeated in the memorandum opinion filed by the Circuit Judge, every question was eliminated from the case except the constitutionality of the act of 1907. The issue for our consideration by this action of the parties is very succinctly stated by Judge Treiber, who presided in the Circuit Court, in these words (p. 694):
"In the argument counsel agreed that the only question necessary for a final determination of this cause is the constitutionality of the act of the General Assembly of the State of Arkansas, No. 193, approved April 19, 1907, entitled, `An Act to regulate freight transportation by railroad companies doing business in the state of Arkansas,' and, if unconstitutional, that the injunction may be made perpetual."
*464 The court then adds:
"The court holds the act is unconstitutional upon two grounds: 1. By the last sentence of section 17 it is clearly shown that the intention of the Legislature was to apply its provisions to interstate shipments as fully as to intrastate shipments, and there is nothing in the act to indicate that the act would have been passed unless it could thus be made applicable. This is clearly an interference with interstate commerce, and, as this provision cannot be disregarded without defeating one of the main objects of the act, it is unconstitutional. 2. The requirement to furnish the cars is absolute and makes no exceptions for cases of a sudden congestion of traffic, actual inability to furnish cars by reason of their temporary detention in other states or in other places within the same state, none for interference of traffic occasioned by wrecks, accidents, or strikes. Houston &c. R.R. v. Mayes, 201 U.S. 321 is conclusive.
"For these reasons the temporary injunction heretofore granted will be made perpetual as to proceedings by defendants under the act of April 19, 1907, but the injunction is not to apply to any acts by defendants under any other statutes of the State. Let there be a decree accordingly."
Neither have counsel for appellees in this court presented any question other than that of the unconstitutionality of the act of 1907. We shall, therefore, for the purposes of this case assume that the railroad company did fail and refuse to furnish cars as requested and that it also favored a coal company in which it was interested, and that it rests its defense upon the invalidity of the act of 1907.
The attack upon that act turned upon two propositions.
a. That the clause of the seventeenth section, set out above, manifests an intention that the act shall apply as well to interstate shipments as to intrastate shipments, and that this purpose invalidates the whole act, as there *465 is nothing to justify the court in saying that the valid parts of the act would have been passed without the invalid parts.
b. That the requirement to furnish cars found in the first section is absolute and that no excuse arising from the detention of the company's cars upon other and connecting lines of railroad in and out of the State, nor for delays due to sudden emergencies, unusual congestion of traffic, catastrophes or other unavoidable and unusual conditions without fault, is a defense against the penalty imposed for failure to supply cars as required.
Coming first to the clause in the seventeenth section which the court below held invalidated the whole act:
That clause probably means no more than that there shall be no discrimination against demands for cars for interstate shipments. If, however, it be construed as extending the act so as to regulate the furnishing of cars for interstate shipments, it would be invalid by reason of the provisions of the Hepburn Amendment to the act to regulate commerce of June 29, 1906: Chicago, R.I. & P.R. Co. v. Hardwick Elevator Co., 226 U.S. 426.
The effect of this upon the remainder of the act has not been considered in the briefs of appellee, further than to say that in Oliver v. Chicago, R.I. & P.R. Co., 89 Arkansas, 466, decided pending this appeal, the Supreme Court of the State has held the act valid as including an elaborate and workable scheme for the regulation of intrastate railroad traffic, irrespective of the invalidity of the clause referred to. We shall therefore assume the remainder of the act to be valid, although the clause in question be regarded as invalid.
Neither is the requirement of the act as to the duty of furnishing cars absolute, as held by the court below. That the act upon its face includes no exceptions or excuses is not conclusive of its meaning and intent. The case of Houston & T.C.R. Co. v. Mayes, 201 U.S. 321, is not *466 controlling. The dereliction there involved was in the failure to furnish cars for an interstate shipment, under a Texas statute which required the carrier to furnish cars upon six days' notice, with a provision that the law should not "apply in cases of strikes or other calamity." This court concluded that the inclusion of a particular exception, excluded all others, and that an absolute requirement that a railroad shall furnish a certain number of cars at a specific day, regardless of every other consideration "except strikes and other public calamities" amounted to a burden upon interstate commerce. The court added (p. 329), "It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their temporary and unavoidable detention in other States, or in other places within the same State," etc.
But the penalties imposed by the act here involved are enforceable only in an action at law, and in such an action the Supreme Court of the State has held that such a statutory provision is but declarative of the common law, and that any reasonable excuse for a failure to furnish cars upon the requirement of a shipper, may be interposed. St. Louis S.W. Railway v. Clay County Gin Co., 77 Arkansas, 357; St. Louis S.W.R. Co. v. State, 85 Arkansas, 311; Oliver v. Railroad, 89 Arkansas, 466, 470. In the case last cited the Arkansas court said of this provision of the act of 1907, that,
"The failure to furnish cars under the terms of the act under investigation will establish prima facie a breach of duty on the part of the railroad companies. This will not preclude their right to set up such defense as will excuse or justify the failure. That a fair division of cars with interstate business made it impossible to answer all demands made for cars for intrastate business would apparently be within the limit of proper defenses in cases of demands too unusual to be foreseen; and, viewed in this *467 way, the act is relieved of the imputation of burdening interstate commerce."
In the case of Railroad v. State, cited above, the excuse for failure to furnish cars upon the requirement of a shipper was that it was unable to do so because, while its car equipment was ample for all the demands of its traffic, it had, at the time when it made default, lost control of a majority of its cars through the fact that they had been sent beyond its own line in interstate commerce, and it had been unable to secure their prompt return through the inefficiency of the rules and regulations of the American Railway Association, of which it was a member. Although it appeared that ninety per cent. of all the railroad companies in the United States were members of that association and permitted interchange of cars with connecting railroads, and the company was powerless to correct the rules and regulations of that association or supervise their enforcement, the Arkansas court held that the detention of its cars upon other lines of railroad in the course of its interstate business afforded no reason for its failure to supply cars in the particular case under consideration. The case was reversed by this court, 217 U.S. 136, 147; when the court, among other things, said:
"As the penalty, which the court sustained, was enforced solely because of its conclusion as to the inefficiency of the rules and regulations of the American Railway Association, which governed ninety per cent. of the railroads in the United States, the court was evidently not unmindful that the carrier before it was powerless of its own motion to change the rules thus generally prevailing, and therefore was necessarily either compelled to desist from the interchange of cars with connecting carriers for the purpose of the movement of interstate commerce, or to conduct such business with the certainty of being subjected to the penalties which the state statute provided for."
*468 And the court further said (p. 149):
"The ruling of the court below involved necessarily the assertion of power in the State to absolutely forbid the efficacious carrying on of interstate commerce, or, what is equivalent thereto, to cause the right to efficiently conduct such commerce to depend upon the willingness of the company to be subjected to enormous pecuniary penalties as a condition of the exercise of the right."
The cases referred to make it clear that the statutory duty of furnishing cars upon the reasonable notice of a shipper is not absolute, and that the legislature did not intend to impose upon railroad companies the duty of furnishing cars to a particular shipper regardless of its equal duty to other shippers, state and interstate, or to a situation due to some unusual and unavoidable condition which made it unreasonable that it should be penalized for non-compliance; and also that if in the administration of the statute a ruling is made by the state court in respect to an excuse for non-compliance which operates as a restraint upon interstate commerce, a Federal question arises which may be reviewed by this court.
The conclusion we reach is that the railroad company, as the case is presented by the pleadings, the agreement of the parties and the ruling of the court below, is making an effort to test the constitutionality of the act of 1907, without showing that in the operation of the act interstate commerce has been illegally restrained or burdened, or that any defense which it may have for the neglect to comply with the provisions of the act as to furnishing cars has been or will be denied by virtue of its obligation as an interstate railroad. The objections which are suggested in the bill are conjectural and academic. The excuse made by the bill for its refusal to furnish the cars requested and for its illegal discrimination were put in issue by the answer and not proved. In Hatch v. Reardon, 204 U.S. 152, 160, it is said:
*469 "That unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if for any reason, or as against any class embraced, the law is unconstitutional, it is void as to all. Supervisors v. Stanley, 105 U.S. 305, 311; Clark v. Kansas City, 176 U.S. 114, 118; Lampasas v. Bell, 180 U.S. 276, 283, 284; Cronin v. Adams, 192 U.S. 108, 114. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court may read into general words, or how far it may sustain an act that partially fails."
This principle has been applied in many cases, among them: Turpin v. Lemon, 187 U.S. 51, 60; The Winnebago, 205 U.S. 354, 360; Citizens Bank v. Kentucky, 217 U.S. 443; Southern Railway v. King, 217 U.S. 524, 534; Rosenthal v. New York, 226 U.S. 260, 271.
The result is that the decree must be reversed and the case remanded with direction to dismiss the bill.
