Syllabus.

obstructed. This is such a case. In Ex parte Royall, it was stated by Mr. Justice Harlan, in naming some of the exceptions to the general rule there laid down, that "When the petitioner is in custody by state authority for an act done or omitted to be done in pursuance of a law of the United States or of an order, process or decree of a court or judge thereof; or where, being a subject or citizen of a foreign State, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign State or under color thereof, the validity and effect whereof depend upon the law of nations; in such and like cases of urgency, involving the authority and operations of the General Government or the obligations of this country to or its relations with foreign nations, the courts of the United States have frequently interposed by writs of habeas corpus and discharged prisoners who were held in custody under state authority."

For the reasons herein given we think the order of the Circuit Court of Appeals, affirming the Circuit Court, was right, and it must be

Affirmed.

MR. JUSTICE HARLAN concurred in the judgment, but not in all the reasoning of the opinion.

The CHIEF JUSTICE took no part in the consideration or decision of this case.

LAKE SHORE & MICHIGAN SOUTHERN RAILWAY 177 591

COMPANY v. OHIO.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 95. Argued December 18, 1898. — Decided February 20, 1899.

The statute of Ohio relating to railroad companies, in that State which provides that "Each company shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at a station, city or village, containing over three thousand in

Opinion of the Court.

habitants, for a time sufficient to receive and let off passengers; if a company, or any agent or employé thereof, violate, or cause or permit to be violated, this provision, such company, agent or employé shall be liable to a forfeiture of not more than one hundred nor less than twenty-five dollars, to be recovered in an action in the name of the State, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the benefit of the general fund of the county; and in all cases in which a forfeiture occurs under the provisions of this section, the company whose agent or employé caused or permitted such violation shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be held, prima facie, to have caused the violation," is not, in the absence of legislation by Congress on the subject, repugnant to the Constitution of the United States, when applied to interstate trains, carrying interstate commerce through the State of Ohio on the Lake Shore and Michigan Southern Railway.

THE case is stated in the opinion.

Mr. George C. Greene for plaintiff in error.

Mr. W. H. Polhamus for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action was commenced before a justice of the peace of the county of Cuyahoga, Ohio, to recover the penalty prescribed by section 3320 of the Revised Statutes of that State.

That section is a part of a chapter relating to railroad companies, and, as amended by the act of April 13, 1889, provides: "Each company shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at a station, city or village, containing over three thousand inhabitants, for a time sufficient to receive and let off passengers; if a company, or any agent or employé thereof, violate, or cause or permit to be violated, this provision, such company, agent or employé shall be liable to a forfeiture of not more than one hundred nor less than twentyfive dollars, to be recovered in an action in the name of the State, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the benefit of the general fund of the county; and in all cases in which a forfeiture occurs under the provisions of this section,

Opinion of the Court.

the company whose agent or employé caused or permitted such violation shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be held, prima facie, to have caused the violation." Laws of Ohio, 1889, vol. 86, p. 291; Rev. Stat. Ohio, 1890, § 3320.

The case was removed for trial into the court of common pleas of Cuyahoga County in which a judgment was rendered against the railroad company for the sum of one hundred dollars. Upon writ of error to the Circuit Court of that county the judgment was affirmed, and the judgment of the latter court was affirmed by the Supreme Court of Ohio.

The facts upon which the case was determined in the state court were as follows:

The plaintiff Lawrence is a resident of West Cleveland, a municipal corporation of Ohio having more than three thousand inhabitants.

The defendant railway company is a corporation organized under the respective laws of Ohio, New York, Pennsylvania, Indiana, Michigan and Illinois, and owns and operates a railroad located partly within the village of West Cleveland. Its line extends from Chicago through those States to Buffalo.

On the 9th day of October, 1890, as well as for some time prior thereto and thereafter, the company caused to run daily both ways over its road within the limits of West Cleveland three or more regular trains carrying passengers. And on that day (which was not Sunday) it did not stop or cause to be stopped within that village more than one of such trains each way long enough to receive or let off passengers.

On the day above named and after that date the company was engaged in carrying both passengers and freight over its railroad from Chicago and other stations in Indiana and Michigan through each of said several States to and into New York, Pennsylvania and Ohio and to Buffalo, and from Buffalo through said States to Chicago. It did not on that day nor shortly prior thereto nor up to the commencement of the present suit, run daily both ways or either way over said road through the village of West Cleveland, three regular trains nor more than one regular train each way carrying passengers "which were

Opinion of the Court.

not engaged in interstate commerce, or that did not have upon them passengers who had paid through fare, and were entitled to ride in said trains going in the one direction from the city of Chicago to the city of Buffalo, through the States of Indiana, Ohio and Pennsylvania, and those going the other direction from the city of Buffalo through said States to the

city of Chicago."

On or about the day named the company operated but one regular train carrying passengers each way that was not engaged in carrying such through passengers, and that train did stop at West Cleveland on that day for a time sufficient to receive and let off passengers.

The through trains that passed westwardly through West Cleveland on the 9th day of October, 1890, were a limited express train having two baggage and express cars, one passenger coach and three sleepers, from New York to Chicago; a fast mail train having five mail cars, one passenger coach and one sleeper from New York to Chicago; and a train having one mail car, two baggage and express cars, four passenger coaches and one sleeper from Cleveland to Chicago. The trains running eastwardly on the same day through West Cleveland were a limited express train having one baggage and express car and three sleepers from Chicago to New York; a train having one baggage and express car, three passenger coaches and two sleepers from Chicago to New York; a train having one mail car, two baggage and express cars and seven passenger coaches from Chicago to Buffalo; and a train having three mail cars and one sleeper from Chicago to New York.

The average time required to stop a train of cars and receive and let off passengers is three minutes.

The number of villages in Ohio containing three thousand inhabitants through which the above trains passed on the day named was thirteen.

The trial court found as a conclusion of law that within the meaning of the Constitution of the United States the statute of Ohio was not a regulation of commerce among the States and was valid until Congress acted upon the subject. This gen

Opinion of the Court.

eral view was affirmed by the circuit court of Cuyahoga County and by the Supreme Court of Ohio.

The plaintiff in error contends that as the power to regulate interstate commerce is vested in Congress the statute of Ohio in its application to trains engaged in such commerce is directly repugnant to the Constitution of the United States. In support of this contention it insists that an interstate railroad carrier has the right to start its train at any point in one State and pass into and through another State without taking up or setting down passengers within the limits of the latter State. As applied to the present case, that contention means that the defendant company, although an an Ohio corporation deriving all its franchises and privileges from that State, may, if it so wills, deprive the people along its line in Ohio of the benefits of interstate communication by its railroad; in short, that the company if it saw fit to do so could, beyond the power of Ohio to prevent it, refuse to stop within that State trains that started from points beyond its limits, or even trains starting in Ohio destined to places in other States.

In the argument at the bar as well as in the printed brief of counsel, reference was made to the numerous cases in this court adjudging that what are called the police powers of the States were not surrendered to the General Government when the Constitution was ordained but remained with the several States of the Union. And it was asserted with much confidence that while regulations adopted by competent local authority in order to protect or promote the public health, the public morals or the public safety have been sustained where such regulations only incidentally affected commerce among the States, the principles announced in former adjudications condemn as repugnant to the Constitution of the United States all local regulations that affect interstate commerce in any degree if established merely to subserve the public convenience.

One of the cases cited in support of this position is Hennington v. Georgia, 163 U. S. 299, 303, 308, 317, which involved the validity of a statute of Georgia providing that "if any freight train shall be run on any railroad in this

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