Southern Pacific Co. v. State

CUNNINGHAM, J.

(Dissenting). — The essential question in this case is whether the movement of the Campbell’s United Shows from Tucson to Phoenix via Maricopa, a movement wholly within the state of Arizona, is a movement of interstate commerce and under the protection of section 8, article 1, of the United States Constitution. If, in fact, such movement was interstate commerce, the Arizona Corporation Commission, by its order made and entered on March 25, 1914, exceeded its jurisdiction by fixing a transportation rate chargeable for the movement, and the order so made was void and- incapable of initiating a duty on the railroad company.

The trial court'made special findings of fact and stated its conclusions of law therefrom. The court in its findings of fact does not find any fact nor refer to any testimony which shows or tends to show the points from and to which the shows moved on the journey. The findings are limited to the -movement from Tucson to Phoenix within the state of Arizona. The conclusions of law on this issue are equally unsatisfactory. In the third paragraph of the conclusions of law the court finds as a fact, not as a matter of law, that the order of the Corporation Commission made and entered on March *37 25, 1914, “in no way imposed a burden upon interstate commerce.” Inferentially the trial court must have believed that the movement of the said shows between the points in: question was not in fact a movement of interstate commerce; but the fact was not found by the court.

A careful examination of the opinion of the Arizona Cor^ poration Commission annexed to the complaint in this case, the basis for the order of March 25, 1914, will disclose that the Corporation Commission did not consider the matter of the beginning and termination of the journey laid out by the Campbell’s United Shows, but only took into its consideration the matter of the reasonableness of rates charged by railroad companies for transportation between points in Arizona. The issue of fact whether the movement was interstate commerce is squarely presented in this case, and is the controlling •issue joined and incapable of determination in the absence of evidence of the entire journey.

The defense introduced substantial evidence tending to show that it moved the Campbell’s United Shows from Tuc-' son to Phoenix under a rate prescribed by the federal Interstate Commerce Commission; that said shows were moved from Phoenix to a point within the state of California stopping at a number of points along the course of the journey,' but the movement was made pursuant to special rate contracts. The defendant introduced evidence tending to show that about March 6, 1914, the Campbell’s United Shows opened negotiations with defendant, Southern Pacific Company, for transportation “between Tucson and Phoenix, with a probable movement to other points in Arizona and in California, at that time explaining that they were coming from Deming, New Mexico, into Tucson over the El Paso & Southwestern.”

The reporter’s notes of the hearing before the Corporation Commission resulting in the order of March 25, 1914, and introduced as a portion of Plaintiff’s Exhibit “B” in this cause, disclose that the representative of Campbell’s United Shows, Mr. E. L. Williams, being examined before the commission, was asked:

“Where do you propose to go from here?

“Mr. Williams: Prom here to Prescott, Clarkdale, and Kingman, and from Kingman to Needles, and then into California.”

*38 The evidence is therefore without conflict that the starting place of this organization of shows was Deming, in the state of New M'exieo, and its stopping place was within the state of California, the exact point in contemplation is left in doubt by the evidence, but that the route for the journey determined upon in advance of starting from Deming, New Mexico, was through Arizona to Needles in the state of California, with the expectation of frequent stops incidentally along the course of the proposed journey, is clearly shown. The transportation companies were informed of the proposed route of travel from the place of beginning to its termination at Needles, California, at least. The proposed incidental stopping places were not disclosed, nor, perhaps, fully determined upon. That the shows would stop at Tucson and at Phoenix, however, was definitely determined, of which stops the transportation companies involved had information. These facts were shown before the Corporation Commission before its order was made on March 25, 1914, and upon the trial of this cause the facts are undisputed. Notwithstanding these very vital and controlling facts before the court, directly bearing on and prima, facie establishing the defendant’s alleged defense, no special finding or any finding with regard thereto was made by the court.

Passengers, baggage, and freight move in interstate commerce, and are therefore subject to the exclusive regulation of the laws of Congress under section 8 of article 1 of the United States Constitution when the movement is commenced in one of the states' with the intention that such movement shall continue and ultimately terminate within another state, and that intention is consummated. It is not the contract for the rate of transportation which controls the character of the movement. The incidental interruption of the movement along its course, either voluntarily or involuntarily, is not the controlling factor. It is the commencement and ending of the continuous journey in contemplation with which the movement begins which fixes the character of interstate commerce upon the thing moved. The several contracts of transportation of the interstate commerce pursuant to which the movement is commenced and continued to its terminus does not fix the character of the thing moved. The fact that the movement is not intended to proceed without incidental stop-overs, or under one contract, or that any of the trans *39 portation companies handling the movement acts for itself and not in conjunction with the other connecting companies in the movement of the thing, does not impair the interstate commerce character of the thing moved, nor the movement participated in by the several transporting companies. Hence the evidence establishes the fact that the movement of the Campbell’s United Shows from Tucson to Phoenix was a movement along a connecting link of the journey contemplated and commenced at Deming, in the state of New Mexico, and intended to terminate within the state of California, in the course of which journey the intention of the shipper was to pass over the Southern Pacific Company’s road from Tucson to Phoenix in the state of Arizona, as a definite portion and continuation of such journey, of which intention the Southern Pacific Company had full notice.

As a conclusion of law from these facts, the said shows, when they commenced the journey, and continuing on the journey from Tucson to Phoenix, were in character moved in interstate commerce. The attempt of the Arizona Corporation Commission to prescribe rates chargeable for such movement of such interstate commerce is an interference with a matter with which the said Corporation Commission has no jurisdiction, and as a consequence the order violated by the Southern Pacific Company was void, and its violation did not subject the Southern Pacific Company to punishment.

When goods have been delivered to a carrier for transportation to a destination in another state, and when they have actually started in the course of transportation to another state, such goods are in interstate commerce. Southern Pac. Terminal Co. v. Interstate Commerce Commission and Young, 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. Rep. 279; Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 57 L. Ed. 442, 33 Sup. Ct. Rep. 229; Railroad Commission v. Worthington, 225 U. S. 101, 56 L. Ed. 1004, 32 Sup. Ct. Rep. 653; United States v. Union Stockyard, 226 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. Rep. 83; Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540, 27 Sup Ct. Rep. 360; Easdale v. A., T. & S. F. Ry. Co., 100 Kan. 305, 164 Pac. 164 — citing Louisiana R. R. Com. v. T. & P. Ry., 229 U. S. 336, 57 L. Ed. 1215, 33 Sup. Ct. Rep. 837, and A., T. & S. F. Ry. Co. v. Harold, 241 U. S. 371, 60 L. Ed. 1050, 36 Sup. Ct. Rep. 665. Hence if the movement from Deming, New Mexico, *40 to Tucson, Arizona, is considered as a completed transaction, certainly the movement from Tucson was commenced to terminate ultimately in the state of California, and the movement on the journey commenced, the object moved became impressed with the character of interstate commerce and the regulation of such movement as to rates of transportation remained exclusively with the Interstate Commerce Commission, because that authority had acted in the matter and prescribed the rate chargeable for the transportation of such class of commerce.

The judgment in this case is not sustained by the evidence nor by the law. I am of the opinion that the judgment should be vacated and the cause dismissed for the reason the Arizona Corporation Commission did not have power to make and enter the order of March 25, 1914, and therefore such order was a nullity, and the appellant’s failure to obey the order created no liability to punishment.