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him on account of dealings for or on behalf of such customer. We say this, because it appears, and it is so found, that at the close of the business transacted by Holzman & Co. for Fritz, the latter was a creditor, not a debtor, of that firm.

In any aspect in which the case can be properly viewed, and for the reasons stated, the judgment sustaining Fritz's claim to the stock and certificate in question must be




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No. 111. Argued January 26, 27, 1910.-Decided April 4, 1910.

Where the constitutional defenses asserted in the answer, and em

braced in the instructions asked and refused, in an action for penal-
ties for violating an order of a state commission are not confined to
the reasonableness of the order as such, but also challenge the power
of the State to inflict the penalty at all under the circumstances dis-
closed by the answer, the judgment does not rest on grounds of local
law alone, but a Federal right has been set up and denied which gives
this court jurisdiction to review the judgment under $ 709, Rev.

À state statute which compels a railroad to distribute cars for ship-

ments in a manner that subjects it' to payment of heavy penalties
in connection with its interstate bus ness imposes a burden on its
interstate business, and is unconstitutional under the commerce
clause of the Constitution; and so held in regard to the Arkansas act.
and order of the commission in regard to distribution of cars for

shipment of freight. Whether or not the rules of an association of railroads in regard to ex

change of cars are efficient to secure just dealings as to cars moved in interstate commerce is a matter within Federal control, and it is beyond the power of a state court to determine that they are inefficient

and to compel a member of the association to violate such rules. 85 Arkansas, 311, reversed.

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217 U.S.

Argument for Plaintiff in Error.

The facts, which involve the constitutionality under the commerce clause of the Constitution of the United States of a regulation of the Railroad Commission of Arkansas as to delivery of freight cars, are stated in the opinion.


Mr. Roy F. Britton, with whom Mr. Samuel H. West, Mr. Frank G. Bridges, Mr. William T. Woolbridge and Mr. Nicholas J. Gantt, Jr., were on the brief, for plaintiff in error:

Order No. 305 of the Railroad Commission of Arkansas, or 38 6803 and 6804 of Kirby's Digest, as construed by the Supreme Court of Arkansas, being the necessary basis for this suit, and being, by their terms and as so construed, a burden on interstate commerce, there is a Federal question involved, and this court has jurisdiction. Arrowsmith v. Harmoning, 118 U. S. 194; Leathe v. Thomas, 207 U. S. 93; Houston & T.C. Rd. Co. v. Mayes, 201 U. S. 321; Gibbons v. Ogden, 9 Wheat. 1; United States v. E. C. Knight Co., 156 U. S. 1; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Johnson v. So. Pac. Co., 196 U. S. 1.

Order No. 305 of the Railroad Commission of Arkansas, and 88 6803 and 6804 of Kirby's Digest, as construed by the Supreme Court of Arkansas in this suit, are void as regulations of interstate commerce.

A regulation of the instrumentalities of interstate commerce is a regulation of that commerce, and is repugnant to the commerce clause of the United States Constitution. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; United States v. E. C. Knight Co., 156 U. S. 1; Johnson v. Southern Pac. Co., 196 U. S. 1; Cooley v. Board of Wardens, 12 How. 299; Hall v. De Cuir, 95 U. S. 485; Covington Bridge Co. v. Kentucky, 154 U.S. 204; Louisville Rd. Co. v. Stock Yards Co., 212 U. S. 132; Miss. R. R. Com. v. Illinois Cent. R., 203 U. $. 335; McLean v. Denver &c. R. Co., 203 U. S. 38; Adams Express Co. v. Kentucky, 214 U. S. 218; Rhodes v. Iowa, 170 U. S. 412; Central Stock Yards Co. v. Louisville & N. R. Co., 118 Fed. Rep. 113; Smith v. Alabama, 124 U. S. 465; Nashville, C. & St. L. R. Co.

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Argument for Defendant in Error.

217 U.S.

v. Alabama, 128-U. S. 196; Hennington v. Georgia, 163 U. S. 299; New York &c. R. Co. v. New York, 165 U. S. 628.

The order of the Railroad Commission and the statutes of Arkansas, as applied to the facts in this case, impose a direct burden on interstate commerce. Houston & T. C. Rd. Co. v. Mayes, 201 U. S. 321; McNeil v. Southern Ry. Co., 202 U. S. 543; United States v. E. C. Knight Co., 156 U. S. 1; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557; Southern Ry. Co. v. Commonwealth, 107 Virginia, 771; S.C., 60 S. E. Rep. 70; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Voight v. Wright, 141 U. S. 62.

The order and statutes are void because Congress has legislated with respect to their subject-matter in the act to regulate commerce, approved February 4, 1887, and amendments thereto. U.S. Comp. Stat., 1901, pp. 3155, 3172; Pennsylvania Rd. Co. v. Hughes, 191 U. S. 477; Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98.

Order 305 and the statutes of Arkansas are void, because they are unreasonable, and their enforcement constitutes a taking of property without due process of law. They are, therefore, in conflict with $ 1 of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356; Houston & T.C. R. Co. v. Mayes, 201 U. S. 321; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Covington Turnpike Road v. Sandford, 164 U.S. 578; L. S. & M. S.R. Co. v. Smith, 173 U. S. 684; Railroad Co. v. Husen, 95 U. S. 465; Henderson v. Mayor, 92 U. S. 259; Chicago &c. R. Co. v. Minnesota, 134 U. S. 418; Lawton v. Steele, 152 U. S. 133; St. L. & S. F. Co. v. Gill, 156 U. S. 649; Lochner v. New York, 198 U. S. 45.

Mr. Hal Norwood, Attorney General of the State of Arkansas, and Mr. F. E. Brown, for the defendant in error, submitted:

For the statute law of Arkansas concerning furnishing of cars and undenied allegations of complaint filed thereunder, see act of March 11, 1899, Acts 82–99; Kirby's Dig., Ark., 88 6787, 6286.

217 U.S.

Argument for Defendant in Error.

For the law of Arkansas concerning cars, as construed by the Supreme Court of Arkansas, which recognizes and establishes the common-law excuses for failure to furnish sufficient shipping facilities, see St. Louis Southwestern Ry. Co. v. Gin Company, 77 Arkansas, 362; St. Louis Southwestern Ry.Co. v. Leder, 79 Arkansas, 59; St. Louis, I. M. & So. Ry. Co. v. Cooperage Company, 81 Arkansas, 373; and the case below, Oliver v. Chicago, R. 1. & P. Ry. Co., 89 Arkansas, 467, express no opinion as to interstate shipments.

In this case the validity of order No. 305 of the Railroad Commission is immaterial. This suit is based upon failure to furnish cars as required by law.

On this theory, too, the instructions to the jury presented the law and not the order of the Railroad Commission, and declared the duty of carriers to furnish cars without undue and unreasonable delay” (not in five days as in the Commission Order 305) and declared such duty in the language of the Supreme Court declaring the common-law duty to furnish cars and not in the language of Order 305.

Accordingly, the Supreme Court of Arkansas sustained this suit as one instituted for a violation of statute (not for a violation of rule of Railroad Commission), the language of the opinion of the lower court on this point being as follows: “Order 305 is not unreasonable on the ground that it contains no exception whatever, but requires the cars ordered to be furnished within five days in all cases and under all circumstances. But the order should be construed, if reasonably possible, to uphold its validity; and the Supreme Court of Arkansas has not construed this order as creating an absolute duty to furnish cars, but on the contrary, has in effect said, that the duty of a railroad company to furnish cars is no broader than the common-law duty, whether the railroad be notified to furnish cars under the statute or the rule of the Railroad Commission."

There is no Federal question involved. The statutes and decisions of the Arkansas Supreme Court do not seek to make

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the duty of railroads to furnish cars an absolute one and the Arkansas law is simply declaratory of the common law. The cars not furnished in this case were ordered for shipments within the State of Arkansas-intrastate business.

The law of Arkansas which is simply declaratory of the common law requiring railroads to furnish cars, subject to reasonable excuses, is not a burden on interstate commerce. As to Houston & Tex. Cen. Ry. v. Mayes, 201 U. S. 321, see Calvert on Reg. of Commerce, p. 5, preface 160, 96 and 77.

Referring to interstate shipments, plaintiff in error suggests in its brief, page 31 of the Interstate Commerce Act of 1877, requiring railroads to furnish cars, thereby covering the same subject matter as the state legislation, has been construed in 10 I. C. C. Rep. 636; 2 I. C. C. Rep. 116; 109 Fed. Rep. 831, as making no requirement concerning furnishing of cars, except to prevent discrimination.

Even if the Interstate Commerce Act of 1887 had applied to furnishing of cars beyond discrimination, and even if the law in this case were being tested with reference to interstate shipments, the state law declaratory of the common law would be in aid of interstate commerce, Federal policy and Federal statute, and not inconsistent therewith.

MR. JUSTICE WHITE delivered the opinion of the court.

Prior to October, 1905, the Railroad Commission of Arkansas promulgated a rule by which, within five days after written application by a shipper, it was made the duty of a railway company, under the conditions prescribed in the rule, to deliver freight cars to such shipper for the purpose of enabling him to load freight. The rule in question, known as Order No. 305, is in the margin.

1 It is ordered by the commission that its rules be so amended that when a shipper makes written application to 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 the freight,


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