Lake Shore Railway Company v. Ohio ex rel. Lawrence/Dissent White

Mr. Justice WHITE, dissenting.

The statute is held not to be repugnant to the constitution of the United States, because it is assumed to be but an exercise of the lawful police power of the state, providing for the local convenience of its inhabitants. On this hypothesis the statute is held valid, although it is conceded that it indirectly touches interstate commerce, a d remotely imposes a burden thereon. To my mind, the Ohio statute, however, does not come within the purview of the reasoning advanced to support it; and therefore such considerations become irrelevant, and it is unnecessary to form any judgment as to their correctness.

My conception of the statute is that it imposes, under the guise of a police regulation for local convenience, a direct burden on interstate commerce, and, besides, expressly discriminates against such commerce; and therefore it is in conflict with the constitution, even by applying the rules laid down in the authorities which are relied on as upholding its validity. Now, what does the statute provide? Does it require all railroads within the state to operate a given number of local trains, and to stop them at designated points? Not at all. It commands railroads, if they run three trains a day, to cause at least three of such trains to be local trains, by compelling them to stop such trains at the places which the statute mentions. It follows, then, that under the statute one railroad operating in the state may be required to run only one local train a day, and to stop such train, as the statute requires; and another railroad, reaching exactly the same territory, and passing the same places, may be required to operate three trains a day, and make the exacted stops with each of such trains. That is to say, although the same demands and the same local interest may exist as to the two roads, upon one is imposed a threefold heavier burden than upon the other. That this result of the statute is a discrimination, it seems to me, in reason, is beyond question. If, then, the discrimination is certain, the only question which remains is, is it a discrimination against interstate commerce? If it is, confessedly the statute is repugnant to the constitution of the United States. Whence, then, does the discrimination arise, and upon what does it operate? It arises alone from the fact that the statute bases its requirement, not upon the demands of local convenience, but upon the volume of business done by the road, since it requires the road operating three trains to stop three as local trains, and the road operating one train to stop only one. But the number of trains operated is necessarily dependent upon the amount of business done, and the amount of business embraces interstate commerce as well as local business. But making the number of local trains dependent upon the volume of business is but to say that if a railroad has enough interstate business, besides its local business, to cause it to run one local and two interstate commerce trains each way each day, the increased trains thus required for the essential purposes of interstate commerce shall be local trains, while another railroad, which has no interstate commerce, but only local business, requiring but one train a day, shall continue only to operate the one local train.

While the power of the state of Ohio to direct all the railroads within its territory to operate a sufficient number of local trains to meet the convenience of the inhabitants of the state may be, arguendo, conceded,-although such question does not arise in this case, and is not, therefore, necessary, in my opinion, to be decided,-that state cannot, without doing violence to the commerce clause of the constitution of the United States, impose upon the railroads operating within its borders a burden based, not upon local convenience, but upon the amount of interstate commerce business which the roads may do, thereby causing every interstate commerce railroad to have a burden resting upon it entirely disproportioned to local convenience, and greatly more onerous than that resting upon roads doing a local business, and which have not a sufficient interstate business to compel them to operate three trains. To answer this reasoning by saying that the statute does not compel roads to operate the three trains and stop them, since it only compels them to stop them if they operate them, is to adm t the discrimination, and to state the fact that the duty is not made by the statute dependent upon the local convenience, but upon the whole volume of business, which, of course, therefore, includes interstate commerce business.

As the statute makes its exaction depend, not upon a rule by which the local wants are ascertained and supplied, but upon the business done, it therefore directly operates upon the volume of business, and only indirectly considers the possible local convenience. Under a law which thus proceeds, my mind refuses the conclusion that the law directly considers local convenience, and only indirectly and remotely affects interstate commerce, when the reverse, it seems to me, is patent on the face of the statute. The repugnancy of the statute to the constitution of the United States is shown by the principle decided by this court in Osborne v. Florida, 164 U.S. 650, 17 Sup. Ct. 214. In that case the state of Florida Imposed a license on the business of express companies. In construing the statute, the supreme court of the state held that it applied only to business done solely within the state, and not to business interstate in its character. This court, in reviewing and affirming the decision of the state court, said that, as construed by the Florida court, the statute was not repugnant to the constitution, because it applied to business done solely within the state, and that the contrary would have been manifestly the case, if, for the purpose of taxation, the state had taken into consideration the whole volume of business, including that of an interstate character. Now, if a taxing law of a state is repugnant to the constitution because it operates upon the whole volume of business, both state and interstate, a law of the character of that now under consideration, which operates upon the whole volume of business of a railroad, state and interstate, is equally repugnant to the constitution of the United States.

Whether, in the enactment of the statute, it was intended to discriminate, is not the question; for, whatever may have been the intention of the lawmaker, if the necessary effect of the criterion established by the law is to cause its enforcement to produce an unlawful discrimination against interstate commerce, by imposing a greater burden on the roads engaged in such commerce than upon other roads which do a purely local business, the statute is, I think, repugnant to the constitution of the United States, and should not be upheld.

For these reasons, without meaning to imply that I do not assent to the conclusions stated by my brethren who have also on other grounds, dissented, I prefer to place my dissent on what seems to me the discrimination which the statute inevitably creates.