Opinion
9031
March 13, 1915.
Before GAGE, J., Barnwell, November, 1913, and Hampton, October, 1913. Affirmed.
The first two above mentioned actions were brought in a magistrate's Court in Barnwell county to recover damages for the loss of goods in shipments from Augusta, Ga., to Blackville, S.C. and penalty for failure to adjust and pay claim within forty days. The third action was brought in a magistrate's Court in Hampton county to recover damages to goods occasioned by injury while being shipped from Burnt Prairie, Illinois, to Brunson, S.C. and penalty for failure to adjust and pay claim therefor within forty days. From judgment for plaintiff in each action, the defendant appeals.
Mr. J.H. Johnson, for appellant, Southern Ry. Co., submits: The commerce act of Congress as amended by the act of June 29th, 1906, is superior to, and exclusive of, State legislation as applied to interstate shipments, and renders null and void the penalty act of the State of South Carolina, now appearing as section 2573, volume I, Code of 1912, and cites: 219 U.S. 185; 223 U.S. 1; 227 U.S. 59; 216 U.S. 122; 226 U.S. 491; 22 U.S. 424.
Messrs. Barron, McKay, Frierson Moffatt, for appellant, Southern Express Co., submit: So long as Congress has not acted upon a subject matter over which it is given exclusive control by the Constitution, it is within the power of the several States to pass laws which indirectly interfere with interstate commerce, if such laws are not intended directly to have that effect: 163 U.S. 299; 217 U.S. 524; 54 L.Ed. 868; 169 U.S. 133; 18 Sup. Ct. R. 289. When Congress does act, however, upon the precise subject matter, the statutes of the State must yield, even though they have been enacted under the police power, since the regulations of Congress are supreme: 158 U.S. 98; 15 Sup. Ct. R. 802; 222 U.S. 424; 56 L.Ed. 257. Congress has enacted and, by the Carmack Amendment of June 29, 1906, has undertaken to regulate the entire matter of interstate transportation over the lines of connecting carriers: 219 U.S. 186; 55 L.Ed. 167; 226 U.S. 491; 57 L.Ed. 314; 61 So. Rep. 194, 197. "The duty to make prompt settlement for loss or damages to goods is but an incident of the duty to transport and deliver safely and with reasonable diligence:" 73 S.C. 73; 216 U.S. 122; 54 L.Ed. 411, at page 417. The presumption that the terminal carrier of an interstate shipment damaged the goods has no application to cases to which the Carmack Amendment is applicable: 131 S.W. 1187, 1188. The decision of the Supreme Court of the United States in the case of Atlantic C.L. R.R. Co. v. Mazursky, 216 U.S. 122, 54 L.Ed. 411, is not controlling in this action, for the reason that the cases involved in the Mazursky appeal arose prior to the taking effect of the Carmack Amendment, and because the passage of the amendment has superseded all State regulations relating to the same subject matter: 226 U.S. 491; 57 L.E. 314. Even if the penalty statutes are constitutional and applicable, the plaintiff was not entitled to recover the penalty upon the facts of the case. "This, being a penal statute, must be strictly construed:" 80 S.C. 527; 72 S.C. 479.
Messrs. A.H. Ninestein, W.E. Matthews and J.W. Vincent, for respondents.
March 13, 1915. The opinion of the Court was delivered by
The decision in each of the above entitled cases is governed by the decision of this Court in Varnville Furniture Co. v. Ry., 98 S.C. 63, 79 S.E. 700.
Judgment affirmed.
MR. JUSTICE GAGE having heard these cases on Circuit did not participate in this decision.
NOTE. — The decision in Varnville Furniture Co. v. C. W.C. Ry. Co., 98 S.C. 63, 79 S.E. 700, was overruled by the United States Supreme Court on writ of error, on June 1st, 1915, see 35 Sup. Ct. Rep. 715, and thereupon the Supreme Court made an order modifying the foregoing decision, in Preacher v. So. Express Co.: and adjudging that the judgment of the Circuit Court be reversed, unless the plaintiff should, within twenty days after notice of the filing of the remittitur remit so much of the judgment as includes the penalty recovered, and upon the plaintiff entering such remittitur, that judgment of the Circuit Court be affirmed.
The decision of the United States Supreme Court was as follows: