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217 U.S.

Argument for Defendants in Error.

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domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of the defendant in error. Mayor &c. v. Northwestern Ry., 109 Massachusetts, 112; People v. Railroad Co., 58 N. Y. 152, 163; People v. Boston R. R. Co., 70 N. Y. 569; People v. Railroad Co., 104 N. Y. 58, 67.

In the exercise of its police power the State may legislate for the public convenience as well as for the public health, morals or safety. The side track in question is for the convenience of the public in loading its grain into the cars of the railroad company. It is a public inconvenience, expensive in time as well as money, to haul the grain in wagons from the elevator to the car.

Public convenience justifies statutes requiring interstate carriers to stop at stations long enough to allow passengers to get on and off the trains. Lake Shore Ry. Co. v. Ohio, 173 U. S. 285, 300. See also Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678, 683; Caldwell v. Am. Bridge Co., 113 U. S. 205, 208; Huse v. Glover, 119 U. S. 543; West. Un. Tel. Co. v. James, 162 U. S. 650, 662, and Richmond & Allegheny R. R. v. Patierson Tobacco Co., 169 U. S. 311, 315.

In compelling the common carrier to deal fairly and without discrimination with its patrons and the public the statute is merely declaratory of the common law. It is a reasonable provision and places no irksome or unnecessary burden on the railroad, whose business is with the grain-shipping public at the elevator, just as it is with the passenger public at the depot.

The constitutional provision against taking property without compensation was not intended to deny the State the proper exercise of its police powers. C., B. & Q. Ry. Co. v. Drainage Comm., 200 U. S. 562.

Upon the conceded facts, the State had full jurisdiction in the premises and the Federal Interstate Conimerce Commission under the terms of the Hepburn Act is without jurisdic

Argument for Defendants in Error.

217 U. 8.

tion over the subject matter involved in the case at bar. Lake Shore Ry. Co. v. Ohio, 173 U. S. 285.

The Federal tribunal has jurisdiction only of such matters as directly involve interstate commerce.

Mr. William T. Thompson, Attorney General of the State of Nebraska, and Mr. Grant G. Martin for defendant in error, the State of Nebraska, submitted:

Each State has the inherent power to regulate all commerce within its limits of purely an internal character. Gib bons v. Ogden, 9 Wheat. 194.

The internal commerce of a State—that is, the commerce which is wholly confined within its limits—is as much under its control as foreign or interstate commerce is under the control of the general government. Sands v. Manistee R. Imp. Co., 123 U. S. 288. See also Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557; The Daniel Ball, 10 Wall. 557.

The exclusive power to regulate interstate commerce be longs to Congress, but the jurisdiction of the State over its commerce of a purely domestic character is equally exclusive. Regulations such as are in this statute are strictly within the police power of the State. They are not in themselves regulations of interstate commerce; and it is only when they operate as such in the circumstances of their application, and conflict with the express or presumed will of Congress exerted upon the same subject, that they can be required to give way to the paramount authority of the Constitution of the United States. Stone v. Farmers' L. & T. Co., 116 U. S. 307, 333, 334; Smith v. Alabama, 124 U. S. 465, 481, 482; Hennington v. Georgia, 163 U. S. 299, 308, 317; N. Y., New Haven & H. R. R. v. New York, 165 U. S. 628, 632; Gladson v. Minnesota,

v

, 166 U.S. 430

One engaging in interstate commerce does not thereby submit all his business to the regulating power of Congress. Employers' Liability Cases, 207 U. S. 463. The Interstate Commerce Act is limited to the regulation of the business of

217 U.S.

Argument for Defendants in Error.

interstate commerce. The Hepburn law did not become operative until after this cause of action had accrued.

This act is not special or class legislation. That the classification limiting the applicability of the law to elevators having 15,000 bushels capacity is greatly to the advantage of the railway company. Such a class is reasonable, and general in its terms. It operates on all alike, is restricted to no locality and operates squarely upon all the groups of objects. It is not special law. Hunzinger v. State, 39 Nebraska, 653. See also State v. Berka, 20 Nebraska, 375; State v. Graham, 16 Nebraska, 64; McClay v. City of Lincoln, 32 Nebraska, 412; Van Horn v. State, 46 Nebraska, 62; State v. Robinson, 35 Nebraska, 401; Livingston Bldg. & L. Assn. v. Drummond, 49 Nebraska, 200.

The act does not seek to take or damage property without just compensation or due process of law. It is designed to be a facility which will enable the railway company to better serve its patrons and more expeditiously perform its own work. This side track must ever remain a part of the railroad and hence a part of the public highway of the State. Sec Roby v. Farmers' Grain Co., 107 N. W. Rep. 766; Rock Creek Township. v. Strong, 96 U. S. 271; Black v. Philadelphia al R. R. Co., 58 Pa. St. 249. Missouri Pacific Ry. v. State, 164 U. S.

, 404, is not in point for the reason that the statute under consideration in that case expressly provided that the railroad company should give a site on its right of way to the elevator company on which to build an elevator.

The police powers of the State include questions of public welfare and convenience as well as questions of public health and morals. Lawton v. Steele, 152 U. S. 133; Munn v. Illinois, 94 U. 8. 113; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210; Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155; Pike v. Chicago & N.W.R. Co., 94 U. S. 164; Wisconsin M. & P.R. Co. v. Jacobson, 179 U. S. 287; Atlantic Coast Line R. Co. v.. Florida; 203 U. S. 256; Atlantic Coast Line v. Nor. Car. Corp. Comm., 206 U. S. 19. A railroad company, as an interstate

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carrier, may be compelled by state authority to furnish necessary facilities and convenience to accommodate the public within the State even though it suffer loss thereby. Atlantic Coast Line R. R. Co. v. Nor. Car. Corp. Comm., 206 U. S. 26. In this case, however, the railroad company will suffer no loss by affording this facility.

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MR. JUSTICE HOLMES delivered the opinion of the court.

These are two suits arising under a Nebraska statute. The first is brought by the State to recover a fine of five hundred dollars imposed by the law for failure to obey its command; the second is brought at the relation of the party concerned to compel obedience to the same command by mandamus. The statute in question provides that “every railroad company or corporation operating a railroad in the State of Nebraska shall afford equal facilities to all persons or associations who desire to erect or operate, or who are engaged in operating grain elevators, or in handling or shipping grain at or contiguous to any station of its road, and where an application has been made in writing for a location or site for the building or construction of an elevator or elevators on the railroad right of way and the same not having been granted within a limit of sixty days, the said railroad company to whom application has been made, shall erect, equip and maintain a side track or switch of suitable length to approach as near as four feet of the outer edge of their right of way when necessary and in all cases to approach as near as necessary to approach an elevator that may be erected by the applicant or applicants adjacent to their right of way for the purpose of loading grain into cars from said elevator, and for handling and shipping grain to all persons or associations so erecting or operating such elevators, or handling and shipping grain, without favoritism or discrimination in any respect whatever. Provided, however, that any elevator hereafter constructed, in order to receive the benefits of this art, must have a capacity

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of not less than fifteen thousand bushels." Then follows a section making railroads liable for damages in case of wilful violation of the act, (which contains other provisions beside the above), and imposes the above-mentioned fine for each offense. Session Laws of 1905, c. 105, 88 1, 6. 2 Cobbey's Supplement, $ 10007, p. 410.

Under this act the Manley Cooperative Grain Association, a corporation, applied in writing for a site for an elevator on the right of way of the plaintiff in error, in Manley, Nebraska, but the application was refused. Then notice was sent that the corporation intended to build near the end of a side track at the railroad station at Manley and would expect an extension of the side track. The railroad company replied that it would give no trackage privilege. The elevator was built and a demand was made for a side track, repeating a previous offer to bear a fair share of the expense of the extension. This also was refused, and thereupon the first mentioned suit was brought for the penalty imposed by the act. The other suit is a petition for mandamus at the relation of the Farmers' Elevator Company of Strausville, Nebraska, another elevator corporation, and the facts are so like the foregoing that they do not need special statement. In both cases the railroad company set up that the statute was an attempt to regulate commerce among the States and also was void under the Fourteenth Amendment. After trials the fine was imposed and the peremptory writ of mandamus was ordered, and both judgments were affirmed by the Supreme Court of the State. 81 Nebraska, 15; 115 N. W. Rep. 757.

It will have been noticed that there is no provision in the statute for compensation to the railroad for its outlay in building and maintaining the side tracks required. In the present cases, the initial cost is said to be $450 in one and $1732 in the other; and to require the company to incur this expense unquestionably does take its property, whatever may be the speculations es to the ultimate return for the outlay. Wood ward v. Central Vermont Railway Co., 180 Massachusetts, 599

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