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Argument for Plaintiffs in Error.

217 U.8.

110 Georgia, 133; Newmun v. Stuli, 101 Georgia, 531; Lufilte v. Burke, 113 Georgia, 1000. Under the law of Georgia all ob jections to evidence not made are waived. Jackson v. State, 88 Georgia, 784; Steed v. Cruise, 70 Georgia, 168; Christian v. State, 86 Georgia, 430; Rhinehart v. Blackshear, 105 Georgia, 799; Summers v. State, 116 Georgia, 535.

Commerce among the States consists, among other things, in intercourse and traffic, including in these terms the transportation and transit of persons and property and the instrumentalities thereof. Mobile County v. Kimball, 102 U. S. 691; McCall v. California, 136 U. S. 104; Williams v. Fears, 179 U. S. 270; Champion v. Ames, 188 U. S. 321.

There is no reserved power in the States to, in any way, regulate interstate commerce. Where the apparent exercise of power has been upheld by the courts, the power was either the mere declaration of a common law duty as applied to the instrumentalities of interstate commerce or the exercise of some other reserved power not pertaining to commerce. Cooke's Commerce Clause of Fed. Const. 111, 124; Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92; 3 Elliott on Railroads, 1156.

If the authority to regulate an interstate railroad train at a public crossing is embraced in the police power of a State, that authority must be so exercised as not to burden or impede the interstate traffic of the company, or impair the usefulness of its facilities for the traffic. The police power of a State is not unlimited and is subject to judicial review, and when exercised in an arbitrary or oppressive manner, such laws may be annulled as violative of the rights protected by the Constitution. Illinois Cent. R. R. v. Illinois, 163 U. S. 154;: L. S. & M. S. R. R. v. State of Ohio, 173 U. S. 285; see pp. 309 and 335; Cleveland & Chicago R. R. v. St. Louis R. R., 177 U. S. 514; Miss. R. R. Commission v. N. Cent., 203 U.S. 335; Atlantic Coast Line v. N. C. Commission, 206 U. S. 1; Morgan Steumship Co. v. Louisiana Bd. of Health, 118 U. S. 455, Jacobson v. Massachusetts, 197 U.S. 25; Lawler v. Steele,

217 U.S.

Argument for Plaintiffs in Error.

152 U. S. 133; Henderson v. New York, 92 U. S. 259; Lochner v. New York, 198 U. S. 45; Holden v. Hardy, 164 U. S. 366; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Gibbons v. Ogden, 9 Wheat. 1, 210; Sinnot v. Davenport, 22 How. 227; Mo. Ry. Co. v. Harber, 169 U. S. 613; Dobbins v. Los Angeles, 195 U. S. 223; McLean v. Arkansas, 211 U. S. 547.

Congress, alone, can deal with such interstate transportation and its non-action is a declaration that it shall remain free from burdens imposed by state legislation. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196.

Although it is expressly provided that the power of Congress to regulate shall be exclusive, it is obvious that in order to be effective, the exercise thereof must exclude the exercise of any conflicting power under authority of the State; inconsistent state legislation being to that extent superseded. Cooke's Commerce Clause of Fed. Constitution, 109; Mobile County v. Kimball, 102 U. S. 691; Leisy v. Hardin, 135 U. S. 100. Police power cannot control in a case like this. Henderson v. Mayor of N. Y., 92 U. S. 259; Jacobson v. Massachusetts, 197 U. S. 25.

Federal control of commerce begins as soon as the subjects or operations of commerce are subjected to burdensome state legislation. Prentice & Eagan, p. 61; Walling v. Michigan, 110 U. S. 446; Robinson v. Taxing District, 124 U. S. 489; Asher v. Texas, 128 U. S. 129; McCall v. California, 139 U. S. 104; Brennan v. City of Titusville, 153 U. S. 289.

The statute under review is unconstitutional and void as to interstate railroads. There is no common-law duty on a carrier to check its trains at a crossing, so as to stop if any person or thing should be thereon, and there is no reserved power in a State to impose such burden on an interstate carrier.

The act as applied to through trains is unreasonable. L. S. & M. S. R. R. Co. v. State of Ohio, 173 U. S. 301.

Argument for Defendant in Error.

217 U.S.

The act in effect is to regulate an interstate carrier, and thus interstate commerce. Brown v. Houston, 114 U. S. 622; Welling v. Missouri, 91 U. S. 275; Transporlation Co. v. Parkersburg, 107 U. S. 691.

To regulate is to adjust by rule, method, or established mode; to direct by rule, or restriction; to subject to governing principles or laws. Webster's Int. Dict.

The effect of the statute is to burden, impede, and to impair the usefulness of the facilities of interstate carriers for such traffic. IU. Cent. R. R. Co. v. Illinois, 163 U. S. 154; Miss. R. R. Comm. v. Ill. Cent., 203 U. S. 346.

The statute is not observed, and the engineers are not prosecuted for its violation, though the statute so requires. Penal Code of Ga., $ 517, provides he shall be punished as for a misdemeanor by $ 2222 of the Civil Code.

The statute was passed before the days of interstate railroads; it was enacted by the State for the railroads of the State as they were then operated. Interstate carriers operate by virtue of an act of Congress passed since the day of the Georgia statute, and which had the effect to supersede the Blow Post statute of Georgia. Rev. Stat., § 5258.

The evolution of the business world has rendered obsolete the statute under review.

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Mr. Reuben R. Arnold for deiendant in error:

Plaintiff in error has not made its questions in such a way that this court can consider them.

The court is not bound by a conclusion of a pleader that the statute is a burden on interstate commerce, The rule in pleading here is analogous to the pleading in cases of fraud. A general charge of fraud in a pleading always counts for nothing; the particulars constituting the fraud must be set forth. Parham & Co. v. PottsThompson Liquor Co., 127 Georgia, 303; Newkirk v. Southern Railway Co., 120 Georgia, 1048.

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217 U.S.

Argument for Defendant in Error.

The defendant may, by proper pleadings, raise issues of law, or of fact, legal or equitable, or both. All issues of law shall be raised by demurrer. All issues of fact shall be raised by plea or answer, which may be of a dilatory nature, or to the merits.

Inasmuch as written pleadings are required, the defendant had no basis for any evidence on this alleged constitutional objection, after its plea had been stricken out.

Incidental or remote effect on interstate commerce does not vitiate legislation. Sherlock v. Alling, 93 U. S.

v. 99; Chicago R. R. v. Solan, 169 U. S. 133.

Decisions on state legislation directly seeking to control commerce, are not in point here. Legislation in case at bar is an aid to interstate commerce. Legislation by a State, which directly undertakes to regulate commerce, is void; while other legislation, which incidentally affects it equally as much as a direct regulation of it, has been held valid. The acts and orders construed in Atlantic &c. R. R. v. Wharton, 207 U. S. 334; Miss. R. R. Comm. v. IU. Cent. R. R. Co., 203 U. S. 335; Cleveland R. R. v. Ilinois, 177 U. S. 514; Illinois v. Illinois &c. R. R. Co., 163 U. S. 141, involved unreasonable burdens upon interstate commerce and are easily distinguished.

The case at bar belongs to an entirely different class, such as Smith v. Alabama, 124 U. S. 465; Crutcher v. Kentucky, 141 U. S. 47; Lake Shore R. R. v. Ohio, 173 U. S. 286; Gladson v. Minnesota, 166 U. S. 427, 430; Hennington v. Georgia, 163 U. S. 300; and see Erb v. Morasch, 177 U. S. 584, holding that "a regulation by a city of the speed of railroad trains within the city limits is not, as to interstate trains, an unconstitutional regulation of interstate commerce,--at least until Congress takes action in the matter."

The Blow Post law was passed in 1852, and every railroad company in Georgia takes its franchise and its right to operate subject to the provision of this law, which


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has been sustained and applied by the Supreme Court of Georgia in many cases. A full history of this statute will be found in Southern Railway v. Combs, 124 Georgia, 1004; Railroad v. Davis, 18 Georgia, 679; Railroad v. Wynn, 19 Georgia, 440, and Railroad v. Wynn, 26 Georgia, 250.

It is entirely consistent with the terms of this statute, that trains can run at full speed over crossings in the great majority of instances.

It is within the power of the State to require certain measures of diligence on the part of those operating trains when pussing over dangerous places like grade crossings. If this law works a hardship upon the railroads, they can construct underground or overhead crossings.

To maintain grade crossings is dangerous and is so recognized everywhere; some States have abolished grade crossings altogether. See Railroad v. Braddock R. R., 152 Pa. St. 116; Westbrook's Appeal, 57 Connecticut, 95.

If the State can abolish grade crossings altogether it can impose upon the railroads using such dangerous places almost any conceivable condition before allowing their use.

The power to altogether prohibit certainly includes the power to regulate.

MR. JUSTICE Day delivered the opinion of the court.

These cases were tried together in the Circuit Court and were so considered in the Circuit Court of Appeals, and will be so disposed of here. In No. 140, Josephine King brought her suit in the Superior Court of Habersham County, Georgia, to recover $10,000 against the Southern Railway Company for the wrongful death of her husband, killed while riding in a buggy at a crossing of the defendant's railway. The alleged negligence was the violation of a certain statute of the State of Georgia, in that the company failed to check and to keep checking

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