Southern Railway Co. v. Melton ( 1909 )

Lumpkin, J.

Much litigation has arisen in regard to railroad commissions. At first railroad companies contested the constitutionality of acts creating these commissions and conferring upon them the power to fix reasonable rates and to make reasonable rules and regulations. The most common ground of attack was that this was a delegation of legislative power. It is now firmly established by the decisions of the courts of this country, both State and Federal, that such powers can be conferred without constituting an unconstitutional delegation of legislative power. See 8 Cyc. 834, and citations. In this State the question was adjudicated as early as 1883, in the case of the Georgia Railroad v. Smith, 70 Ga. 694. Considering it, then, as settled that the legislature may establish such a commission and confer on it certain powers, the question is still raised as to the extent to which the legislature can go in that direction without violating the constitution. In Georgia the constitution declares that “The legislative power of the State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives.” (Constitution, art. 3, sec. 1, Civil Code, §5744.) The question which we have to deal with here is whether the act of 1905, and the rule of the railroad commission made in pursuance of it, are void as involving an unconstitutional delegation of legislative power to the commission.

It has been argued broadly that the legislature has power to delegate its legislative functions, and there are some expressions used in discussing cases, which might indicate that this could be done (Franklin Bridge Co. v. Wood, 14 Ga. 81; Powers v. Inferior Court, 23 Ga. 65, 80). We think, however, that the sounder doctrine is that what is strictly and essentially a legislative duty must be performed by the legislature. We may lay aside, therefore, the contention that the legislature has unlimited power to delegate its legislative authority, and confine ourselves to the question of whether they could confer the particular power here involved, without violating the general principle of the constitution above quoted.

The grounds on which the various decisions, upholding the creation of railroad commissions and the conferring of powers upon them, have rested, have not always been very clearly stated, or applied with literal accuracy to the facts of the case then under consideration. Indeed it may be said that the application of the principles involved has rather been liberal for the effectuating of the constitutional and legislative purpose than narrow and strict. The principal grounds which have been advanced in connection with the question of delegation of legislative authority may be classified under a few heads:

(1) The constitution having clothed the legislature with the State’s power to legislate, that body may make any laws which it deems proper, unless in conflict with the constitution itself, or with the constitution of the United States, or laws enacted by Congress in pursuance thereof.

(2j While the departments of government must be kept separate and distinct, it is impossible to draw a mathematical line by which every action can be exactly classified; and there are some matters which do not inherently and essentially appertain to one department of government rather than to another. As a part of this ground has been considered the impossibility of conducting a government at all without permitting executive officers to exercise some discretion, or legislatures or courts to do some things incidental to their general purpose, but which in a literal sense are not strictly the enacting of laws or the rendering of judgments. Illustrations of such matters may readily be drawn from the power conferred on executive agents to grant or refuse licenses, and to do many other acts essentially involving the exercise of discretion, the appointment of legislative committees of investigation, and the making of rules of practice and the appointment by the courts of certain officers.

(3) Historical considerations as to powers which had been exercised by lawmaking bodies prior to the adoption of the constitutions of the United States and of the various States, and the actual status, practice, and accepted governmental theories in existence when such constitutions were made, and .also contemporaneous construction or long-continued practice of departments of government, as throwing light 'on the constitutional intent, have been urged. Under this ground may be placed the legislative conferring upon or delegation of powers to municipal corporations as local governments. Municipal corporations have sometimes been called exceptions to the general constitutional inhibition, express or implied,, against the delegation of legislative authority. It would probably be better to deal with their position as matter, of constitutional construction, in the light of history, practice, and the existing status when the present constitution and those preceding it were adopted, in determining whether the statement that legislative power was vested in the legislature was intended by implication to exclude the creation and conferring of municipal powers upon municipal corporations. This historical argument can not have the same force in reference to railroad commissions, which are of modern origin. It is, however, legitimate, as new problems arise, to draw light from contemporaneous construction, or long-continued practice of the departments of government, in reference to matters somewhat analogous to the creation of such commissions and the conferring of powers upon them.

(4) The power of making a law which shall become operative or effective upon a given contingency, sometimes illustrated by local option laws, where a law is passed, but is to take effect in a particular town or county upon the holding of an election, or the recommendation of a grand jury; and other laws becoming effective upon the happening of some contingency.

(5) The power of the legislative body to make a law1 and to appoint administrative agents to ascertain and declare what particular instances fall within it, or what particular thing will satisfy and fulfil the general requirements outlined in the act, and so declare. The legislature having power to establish reasonable rates, rules and regulations, it would be impossible in an act to go into all the minutiae connected with the fixing of each rate and regulation of different railroads, with the vast variety of different commodities and circumstances, perhaps changing from season to season and from year to year; and unless the legislature could pass an act outlining the governing principles in somewhat general terms, and leave the railroad commission to fill in the details, the power of the legislature on the subject would be practically useless and impossible of execution. In this connection it has been said that when the legislature has power, or is charged with the duty, of making laws to accomplish the reasonable regulation of railroads and the fixing of reasonable rates, they may provide the necessary means for effectuating that purpose, not distinctly violative of any constitutional provision.

In Georgia Railroad v. Smith, 70 Ga. 694, supra, the constitutionality of the act of 1879 (Laws 1878-79, p. 125, Civil Code of 1895, §2185 et seq.) was attacked as an attempt to delegate legislative power to the railroad commission. That act created the commission, prohibited railroads from charging more than a fair and reasonable rate of toll or compensation for the transportation of passengers or freight, declared that the doing so should be extortion, required the commission to make reasonable and just rates of freight and passenger tariffs and reasonable and just rules and regulations, and contained other provisions not necessary to recite. Crawford, J., in delivering the opinion, said: “The act of October 14, 1879, provides that fair and reasonable rates only shall be charged by the railroads of the State. Did the constitutional convention, by paragraph 1, .section 2, article 4, intend more than the passage of a general law, such as this, to carry into effect the clause here referred to? It certainly was not contemplated that the details of rates, to be fixed over the many miles of railway in the State, should be settled and determined by the legislature. The many influences that combine to cause changes in the ever-varying vicissitudes of trade and travel were neither overlooked nor forgotten by that body. The utter impossibility of preparing by the legislature just and proper schedules for the various railroads, with their differences of length, locality, and business, appears to us to be so clear and manifest as that to have entertained it would have been absolutely absurd. And especially so, when it is remembered that schedules just and right, where arranged for the months of winter, might be ruinously unjust and wrong for the months of summer; or that such as were proper for the year of the meeting of the General Assembly might the succeeding year well-nigh bankrupt every railroad corporation in the State. . . The difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed is apparent and strikingly great, and this we understand to be the distinction recognized by all of the courts as the true rule in determining whether or not in such cases a legislative power is granted. The former would be unconstitutional, whilst the latter would not.” Thus it is settled in this State that the legislature may generally outline the duty of fixing rates which shall be reasonable and just, and leave to the commission the duty of adopting rules and regulations to carry into effect the law already passed. In some States the creation of a railroad commission and the regulation of rates appear to have been under -the general power of the legislature, without any express constitutional reference to the subject. In our constitution there is not only a declaration of the existence of power in the legislature to regulate railroad freight and passenger tariffs, but it is affirmatively stated (referring to the legislature), “whose duty it shall be to pass laws” for that purpose and to prohibit such roads from charging other than just and reasonable rates, and enforce the same by adequate penalties. Constitution, art. 4, sec. 2, par. 1; Civil Code, §5797. A reference to the stenographic report of the debates in the constitutional convention will show that this mandatory form pf words was not accidental or inadvertent, but was deliberate and'intentional. See Small’s Rep. Const. Con. 1877, 392 et seq., 401.

If, then, the constitution not only permits but commands the making of such regulations and the enforcement thereof, and if the legislature may outline the duty of fixing reasonable rates and making reasonable regulation, leaving the work of detail to the commission, as held in the case above cited, it is not easy to draw an exact line at which this power of conferring authority on the commission as to details must stop; and unless the authority conferred in the present case is clearly in violation of the constitution, the act of the General Assembly, and the rule made in pursuance of it, should not be declared void. There is a point in the conferring of such power beyond which the legislature can not constitutionally go, as already indicated; but it is not practicable in advance to lay down an absolute general rule as to where the line of demarkation is. It can only be said that what is strictly and exclusively a legislative duty, such as the making of a law, can not be delegated, but some authority to adopt rules and regulations necessary for the carrying of the law into effect may be delegated. Within these general limitations each case must be determined as it arises.

It is a familiar rule that an act of the legislature will not be declared unconstitutional except where it is clearly and palpably so. This has been many times emphatically stated by this court. In Boston & Gunby v. Cummins, 16 Ga. 102, 105 (60 Am. D. 717), it was even said that where the power of the legislature was involved, in order to set aside an act as exceeding such power, the case must be “one which requires no nice critical acumen to decide on its character, but which is as obvious to the comprehension of any person as an axiomatic truth.” Wilder v. Lumpkin, 4 Ga. 212; Flint River Steamboat Co. v. Foster, 5 Ga. 195, 209 (48 Am. D. 248); Cutis & Johnson v. Hardee, 38 Ga. 350; Welborn v. Akin, 44 Ga. 420. In Beall v. Beall, 8 Ga. 210 (19), it was said: “'The constitution declares, that the three powers of the government— viz., the legislative, executive, and judiciary — shall be distinct; still the separation is not, and, from the nature of things, cannot be total.” In Paddell v. City of New York, 211 U. S. 446 (29 Sup. Ct. 139, 53 L. ed.), it was said: “A constitution can not be carried out with mathematical nicety to logical extremes.” In Way-man v. Southard, 10 Wheaton, 1-43 (6 L. ed. 253), Chief Justice Marshall said “It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which a:e strictly and exclusively legislative. But Congress may certainly delegate to others powers which the legislature may rightfully exercise itself.” The last sentence, as we understand it, is not to be construed as in conflict with the first, but as supplementing it, and referring to powers not strictly and exclusively legislative. Again he said: “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.” Some illustrations of powders which it has been held that Congress or a legislature can lawfully delegate will be given. The non-intercourse act of Congress of March 1, 1809 (Acts 1809, c. 24, 2 Stat. 528), forbidding the importation of goods, wares, or merchandise from any port or place in Great Britain or France, provided that “the President of the United States be, and he hereby is authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation;” and thereafter the trade suspended by the act mentioned could “be renewed with the nation so doing” (2 Stat. 530, §11). On the expiration of that act by its terms, another was enacted providing that if either Great Britain or France so revoked or modified her edicts “as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not” within a given time revoke or modify her edicts in like manner, then certain sections of the act of 1809 “shall from and after the expiration of three months from the date of the proclamation aforesaid be revived,” etc. In the case of the Brig Aurora, 7 Cranch, 382, 388 (3 L. ed. 378), this was held to be constitutional, and not to be void as a delegation of legislative power. It was said that Congress could exercise its discretion in reviving the act of March 1, 1809, either expressly or conditionally. In Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495, 36 L. ed. 294), where the third section of the tariff act of October 1, 1890 (c. 1244, 26 Stat. 612), authorized the President to suspend the provisions relating to the free introduction of specified articles whenever and as often as he should be satisfied that the government of any country producing and exporting such articles imposed a duty or other exaction upon agricultural or other products of the United States, which he should “deem to be reciprocally unequal and unreasonable,” the majority of the court (two-Justices dissenting) held that this broad discretionary power conferred on the President did not invest him with the power of legislation. In Buttfield v. Stranahan, 192 U. S. 470 (24 Sup. Ct. 349, 48 L. ed. 525), the Secretary of the Treasury was authorized, upon recommendation of a board of experts, to establish standards'of teas which might be imported into the United States, and others not coming up to such standards were to be excluded. It was said (p. 496) : “We may say of the legislation in this case, as was said of the legislation considered in Field v. Clark, that it does not, in any real sense, invest administrative officials with the power of legislation. Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute. To deny the power of Congress to delegate such a duty would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted.” In Union Bridge Co. v. United States, 204 U. S. 364 (27 Sup. Ct. 367, 51 L. ed. 523), the river and harbor act of March 3, 1899 (c. 425, 30 Stat. 1121), was involved. By the 18th section of that act (30 Stat. 1157, U. S. Com. St. 1901, p. 3545) it was provided that, “Whenever the Secretary of War shall have a reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters, bn account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft,” it should be his duty, after giving the parties reasonable opportunity to be heard, to give notice to the persons owning or controlling the bridge to so alter it as to render navigation reasonably free, easy, and unobstructed ; that he should specify the changes recommended by the chief of engineers, as required to be made, and should prescribe a reasonable time for making them; that if at the end of the time the alterations had not been made, the Secretary of War should notify the United States district attorney, and if after receiving the notice prescribed by the act the person owning or controlling the bridge should wilfully fail or refuse to remove it, or to comply with the lawful order of the Secretary of War, such person should be deemed guilty of a misdemeanor, and prosecution should be instituted accordingly. It was held that this was not an unconstitutional delegation of legislative or judicial power. See also Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334, 388, 1191, 29 L. ed. 636); Kansas v. Missouri Pacific Ry. Co., 76 Kans. 467 (92 Pac. 606), and authorities there cited; Phinizy v. Eve, 108 Ga. 360, 362 (33 S. E. 1007; Mayor etc. of Brunswick v. Finney, 54 Ga. 856 (municipal charter to take effect upon vote of people of the city); Murphy v. Educational Board of Burke County, 71 Ga. 856 (provision of law for payment of school officers not to operate in a county after grand jury shall otherwise recommend); Caldwell v. Barrett, 73 Ga. 604 (local law prohibiting sale of liquor, submitted to vote); Haney v. Commissioners, 91 Ga. 770, 18 S. E. 28 (road law to go into effect in county on recommendation of grand jury); Coleman v. Board of Education, 131 Ga. 644, 63 S. E. 44 (school tax, put into effect in counties or districts by vote).

In 6 Am. & Eng. Enc. Law (2d ed.), 1022, it is said: “A marked tendency appears in the direction of assigning duties heretofore deemed legislative to other bodies: to boards and commissions, to local authorities, and especially to the voters.” In Blue v. Beach, 155 Ind. 121 (80 Am. St. R. 195, 50 L. R. A. 64, 56 N. E. 89), it was held, that a statute which established a State board of health, in order to secure and promote the public health, and which invested such board with power to adopt ordinances, rules, and regulations necessary to secure such objects, was not unconstitutional as being a delegation of legislative power, as the inhibition against so doing did not extend to prevent the granting to an administrative board of power to adopt rules and regulations to carry out a particular purpose; that rules and by-laws adopted by such board of health had the force and effect of laws, but must be reasonable, and not in conflict with the constitution, or opposed to the fundamental principles of justice, or inconsistent with the powers conferred upon the board. It was also held, that, under a statute conferring power on a local board of health to protect the public health and to prevent the spread of contagious and infectious diseases, such board might, in time of danger of a smallpox epidemic, require that ho unvaccinated child be allowed to attend the public schools during the continuance of such danger; or that the board might, in its discretion, direct that the schools be temporarily closed during the emergency. In Isenhour v. State, 157 Ind. 517 (87 Am. St. 228, 62 N. E. 40), it was held that the provision of a pure-food law that within ninety days after its passage the State board of health should adopt measures to facilitate its enforcement, and prepare rules regulating standards, defining adulterations, and declaring methods of collecting and examining foods and drugs, was not an unconstitutional delegation of legislative power. So violations of rules of park commissions have been held punishable as offenses against the State. Brodbine v. Inhabitants of Revere, 182 Mass. 598 (66 N E. 607). In United States v. Ormsbee, 74 Fed. 207, it was held that the provision of an act of Congress which granted to the Secretary of War authority to prescribe such rules and regulations for the use, administration, and navigation of canals, etc., owned or operated by the United States, as in his judgment public necessity might require, was not invalid as a delegation of legislative power; and that the rules made pursuant thereto had the force of law, so that persons violating them by drawing off water from a canal were subject to criminal punishment under the provisions of the same act. The powers of the Secretary of War and the Secretary of the Navy to prescribe rules and regulations for the government of the army and navy respectively have been recognized and, within their spheres of authority, the regulations so made have been declared to have the force of law. United States v. Eliason, 16 Pet. 291 (10 L. ed. 968); Gratiot v. United States, 4 How. 80 (11 L. ed. 884); Smith v. Whitney, 116 U. S. 167, 180, 181 (6 Sup. Ct. 570, 29 L. ed. 601); United States v. Maurice, 2 Brock. 96, 105 (Fed. Cas. No. 15747); Ex parte Reed, 100 U. S. 13 (25 L. ed. 538). In discussing the question of delegation of power to railroad commissions, in the case of Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 874 (1 L. R. A. 744), Brewer, J., said: “While, in a general sense, following the language of the Supreme. Court, it must be conceded that the power to fix rates is legislative, yet the line of demarcation between legislative and administrative functions is not always easily discerned. The one runs into the other. The law books are full of statutes unquestionably valid, in which the legislature has been content to simply establish rules and principles, leaving execution and details to other officers. Here it has declared that rates shall be reasonable and just, and committed what is, partially at least, the mere administration of that law to the railroad commissioners.”

-Keeping in view, then, the limitation that powers which are strictly and exclusively legislative can not be delegated, but recognizing the rule that there are subjects which may be regulated by direct legislation, if practicable, but for which general provisions may be made, and the power given to a commission, which is to act under such provisions, to fill up the details; also bearing in mind the cardinal rule that acts of the legislature will not be held unconstitutional unless they are plainly and clearly so; and that, under the mandate contained in the constitution of this State, the legislature has undertaken to carry out the public purpose therein indicated, but that (as held in the case of the Georgia Railroad v. Smith, supra) it is practically impossible for them to provide for all of the details necessary, and that power to make rules and regulations in pursuance of the general purpose and direction outlined in the statute has been conferred upon the railroad commission; and bearing in mind further that such a statute should not be given a strict and narrow construction so as to defeat the purpose of the legislature and that of the constitution, but should rather be liberally construed so as to effectuate the objects for which it was passed, — let us now more specifically consider the act of 1905 (Acts 1905, p. 120), and the rule of the railroad commission known as No. 9, adopted in pursuance thereof, and determine whether it can be said that they are plainly and palpably violative of the fundamental law.

The act of 1905 expressly conferred upon the railroad commission “full power and authority to make, prescribe, and enforce all such reasonable rules, regulations, and orders as may be necessary in order to compel and require the several railroad companies in this State to promptly receive, receipt for, forward and deliver to destination all freights of every character which may be tendered or received by them for transportation.” It declared that the railroad commission should, “by reasonable rules and regulations, provide the time within which” such ear or cars should be furnished after being ordered, “and the penalty per day per car to be paid by said railroad company , in -the event such car or cars are not furnished as ordered.” The act also made provision for a hearing and relief of the carrier, upon proper cause shown, “from any further liability under this act.” A penalty not exceeding $250 was provided to be recovered by the State for any violation of the rules of the commission.

It was contended, that the provision in regard to fixing a reasonable charge for delay in furnishing cars conferred on the railroad commission a power to fix a penalty; that penal laws are peculiarly matters within the power of the legislature to enact; and that such power could not be conferred on the commission. If it be conceded for the present purpose that the legislature alone can enact penal or criminal laws proper, and that they can not constitutionally transfer or delegate that power to any other persons, was the act of 1905 in violation of that constitutional restriction? In Huntington v. Attrill, 146 U. S. 657, 667 (13 Sup. Ct. 224, 36 L. ed. 1123), it was said: “In the municipal law of England and America, the words ‘penal’ and ‘penalty’ have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offence against its laws. United States v. Reisinger, 128 U. S. 398, 402 (9 Sup. Ct. 99, 32 L. ed. 480); United States v. Chouteau, 102 U. S. 603, 611 (26 L. ed. 246). But they are also commonly used as including any extraordinary liability to which the law subjects a wrong-doer in favor of the person wronged, not limited to the damages suffered. They are so elastic in meaning as even to be familiarly applied to cases of private contracts, wholly independent of statutes, as when we speak of the ‘penal sum’ or ‘penalty’ of a bond. . . Penal laws, strictly and properly, are those imposing punishment for an offence committed against the State, and which, by the English and American constitutions, the executive 'of the State has the power to pardon. Statutes giving a private action against the wrong-doer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.” In Neal v. Moultrie, 13 Ga. 104, it was held, that, “In all cases where a statute creates a right of action and recovery in in^iduals, or a particular class of individuals, such statute is not penal, but remedial.” This was said in discussing a statute which rendered directors of a bank liable as individuals under certain circumstances, and authorized an action to be brought against them by any creditor or creditors of the corporation. Se also Banks v. Darden, 18 Ga. 318; Wheatley v. Glover, 135 Ga. 739 (54 S. E. 636); Pennington & Evans v. Douglas, Augusta & Gulf Ry. Co., 3 Ga. App. 665 (60 S. E. 485); Bell v. Farwell, 176 Ill. 489 (68 Am. St. R. 194, 43 L. R. A. 804, 53 N. E. 346). In the ease of Board of Harbor Commissioners v. Excelsior Redwood Co., 88 Cal. 491 (36 Pac. 375, 33 Am. St. R. 331), the act under consideration authorized a board of harbor commissioners to impose a penalty not exceeding $500 for a violation of its rules. The action was by the board to recover such penalty, and was thus a proceeding by the public officials to recover an amount of money for punitive purposes on account of a disobedience of rules, and not a remedial action by a private person. The Supreme Court of California has also taken a different view from this court in regard to the power to enact laws to take effect upon a contingency. Compare Ex parte Wall, 48 Cal. 379, 313 (17 Am. R. 435), with decisions of this State already cited, such as Coleman t. Board of Education, supra. This is also true of some other States. We have had in this State, long in force and never questioned, laws authorizing commissioners of pilotage to be appointed by the corporate authorities of certain cities, with quite extensive powers. Pol. Code, §§1651, 1671, et seq.

A consideration of the terms of the act of 1905 will show that the word “penalty,” in the second section, was not employed in its strict sense, but as meaning a reasonable amount to be fixed by the rule of the commission, recoverable by the shipper on account of a failure to furnish cars to carry his freight within a reasonable time named in the rule. By the fourth section of the act of 1905 the legislature provided for a penalty in the punitive sense. And although the word “penalty,” along with others, is used in the second section, in dealing with the question of recovery by a shipper for delay in furnishing cars, we can not presume that the legislature intended merely a duplication, of punishment in the same act. This act does not leave to the railroad commission the power of enacting a penal law. It does not even leave to the commission the power broadly to impose forfeitures or to provide for pecuniary recoveries at their will. The legislature itself enacted the law and outlined the duty and power of the commission on this subject, and indicated the matter to be dealt with by the commission, the purpose of dealing with it, and the authority of the commission in reference to carrying into effect that purpose. It not only authorized but required the fixing, by “reasonable rules,” of an amount to be paid per day for failure to furnish cars. It is difficult to see why the reasoning on which the authority of the legislature has been upheld to establish the commission and authorize it to carry into effect the legislative purpose, and, to that end, to make rules and regulations and fix-rates which should be “reasonable,” is not applicable to this act. If the legislature itself could provide in general terms for the making of reasonable rates, charges, and regulations, but leave the details to be carried into effect by the commission, for the reasons stated in the case of the Georgia Railroad v. Smith, supra; and if the legislature also had authority to require the prompt furnishing of ears by a railroad company, and to name a reasonable amount recoverable by the shipper for a default on the part of the carrier in that respect, why could they not provide for this in general terms, as in the other case, and leave it to the commission to investigate and declare by rule what would be a reasonable time and amount ?

It may be said that the legislature may constitutionally confer upon the railroad commission the power to regulate demurrage charges; but that demurrage is a charge for the use of the car of the company, or its detention, and is therefore a proper subject of regulation by the commission, while the charge now involved is for a failure to furnish ears, and not the subject of regulation by that body. Demurrage was originally a maritime term, and signified the amount to be paid by the charterer to the owner of a ship for detaining her in port longer than the time specified. Usually this was fixed in the charter-party. If not, it was subject to be determined by the court, and it was said that damages in the nature of demurrage could be recovered. Demurrage was thus not strictly a charge for carriage, but for causing delay in the voyage. The Apollon, 22 U. S. 362, 378 (6 L. ed. 111); Wordin v. Bemis, 32 Conn. 268, 273 (85 Am. Dec. 255). The word has also been used as including loss of the use of a vessel on account of an unlawful detention. The Conqueror, 166 U. S. 110 (17 Sup. Ct. 510, 41 L. ed. 937). It has been said that every improper detention of a vessel may be considered a demurrage, and compensation in that name may be obtained for it. 2 Words and Phrases, 1981, and citations. By analogy the word has been applied in railroad transportation ta signify a somewhat similar delay of cars by a shipper and an ah lowance therefor. It was early claimed that demurrage charges should stand on the same footing as charges for transportation proper; and the term “extended freight” was coined, and has been frequently employed, it being said that demurrage might be treated as a species of “extended freight.” It was not denied that the legislature could authorize the railroad commission to fix reasonable demurrage charges. It was also not denied that the legislature could ■fix a reasonable reverse charge in favor of the shipper against the carrier for failure on the part of the latter to furnish ears withip a reasonable time, unless relieved from so doing by some proper defense. A name for this counter-charge has also been coined, — > “reciprocal demurrage.” In regulating the duty of a carrier to furnish cars promptly and fixing the amount of the charge which may be made against the shipper for delay in connection therewith, the legislature has conferred upon the railroad commission the power to fix by rule the amount of the reasonable charge so to be made, called demurrage. It has also provided for a reasonable counter-charge against the carrier for failure to promptly furnish the ears, and required the shipper in order to make claim therefor to submit himself to proper rules and regulations. Why can not the General Assembly leave to the commission the fixing by rule of a reasonable amount for such counter-charge or “reciprocal demur-rage” growing out of delay in furnishing cars, as well as the fixing of the demurrage charge for delay on the part of the shipper ? Are not the two things — delay of the shipper in dealing with a car and delay of the carrier in furnishing it — so closely related as to authorize the legislature, instead of dealing with them separately, to outline the duty and liability and -leave the commission to fix the amount of each charge ? Counsel who filed a brief on behalf of the railroad commission aptly stated that “A failure to furnish cars to be loaded or to transport cars loaded for shipment may be an abuse or an unjust discrimination in rendering the public service.” See, on this subject, Yazoo R. Co. v. Keystone Co., 90 Miss. 391 (43 So. 605, 13 Am. & Eng. An. Cas. 960, and note on p. 964).

We have found no decision directly dealing with a rule of a railroad commission similar to the one now under consideration on the point being discussed, except that in State v. Atlantic Coast Line Railroad Co. (Fla. 1908), 47.So. 969, where such a rule and the law authorizing it were held not to be invalid on the ground that they constituted a delegation of legislative authority to the railroad commission. The decision was concurred in by five Justices. The sixth concurred specially, because the judgment of the trial court sustaining a demurrer 'should have been affirmed on another ground than that on which he based it, but said that the discussion of the validity of the rule of the commission was obiter dictum. If, however, a judge sustained a demurrer on one ground, it would not seem to be pure obiter dictum to discuss all the questions involved — -whether the ruling was right or wrong on the ground of demurrer on which it was based, and, if wrong on that ground, whether the judgment should be affirmed for some other reason. Whitfield, J., delivering the opinion, in which the majority of the court concurred, declared that the constitutionality of the statute and of the rule of the railroad commission was involved. The discussion there was in consonance with what has been said above. See also State v. Seaboard Air-Line Ry. (Rla. 1908), 47 So. 986, 991. In Virginia a somewhat similar rule has been held reasonable in regard to intrastate commerce; but the rulings in that State on the subject now being discussed furnish little aid in the-present consideration, because of the extensive provisions in the Virginia constitution in regard to the railroad commission..

In some States, where rulings have been made not according with that here announced, it will be found that the construction of the power of the legislature to pass an act which shall take effect in a. given locality after the holding of an" election, or upon recommendation of the grand jury, or in similar cases, is different from the rulings on those subjects made in this State; and decisions in those States ought not to override the general tenor of our decisions, and produce a result out of harmony with their spirit.

The act under consideration in Western Union Telegraph Co. v. Taylor, 84 Ga. 408 (11 S. E. 396, 8 L. R. A. 189), was different in its character from that now being discussed. In the telegraph act, telegraph companies were required to receive, transmit, and deliver messages in good faith and with due diligence, “under penalty of one hundred dollars, which penalty may be recovered by a suit in a justice or other court having jurisdiction thereof, by either the sender of the dispatch, or the person to whom sent or directed, whichever may first sue,” and it was provided that nothing in the act should be construed as impairing or in any way modifying the right of any person to recover damages for a breach of a contract or duty of the company. Nor are the decisions applicable in which it has been held by several courts that an act authorizing an insurance commissioner to prepare a form of policy which shall be adopted by insurance companies was unconstitutional. Without discussing the merits of those rulings, the point involved in the present case is different. The bald power, standing alone, conferred on a person to prepare a form of policy is quite different from the conferring of power on a railroad commission to regulate freight and passenger tariffs, enforce prompt furnishing of cars and transportation of them, and fix reasonable amounts as recoverable by the railroad for demurrage for delay of the shipper, or reasonable amounts recoverable by a shipper for the delay of the company in furnishing cars.

Whether the remedy provided in the act of 1905 is exclusive of any other mode of procedure for the collection of damages arising from a breach of the carrier’s general duty to furnish cars for the transportation of freight, or whether it is cumulative .of the common-law remedy, or whether there may be an election, is not a matter which now requires consideration.

The first question, as to whether the rule of the railroad commission quoted is violative of the clause of the constitution vesting the legislative power of the State in the General Assembly, is answered in the negative.

%. From what has already been said it follows that the question as to whether rule 9 of the railroad commission is invalid on the ground that the commission had no power or authority to adopt it, or that it was adopted by the commission without express power, must be answered in the negative.

3. The act of 1905 is not unconstitutional on the ground that the body of the act purports to confer power on the railroad commission to impose penalties, and the title of the act makes no reference to that subject; or in that the body of the act makes regulations as to the placing of cars, and no reference to that subject appears in its title. The title of the act is as follows: "An act to further extend the powers of the Eailroad Commission of this State, and to confer upon the commission the power to regulate the time and manner within which the several railroads in this State shall receive, receipt for, forward and deliver to its destination all freights of every character, which may be tendered or received by them for transportation; to provide a penalty for non-compliance with any and all reasonable rules, regulations, and orders prescribed by the said commission in the execution of these powers, and for other purposes." This outlines with sufficient clearness the scope and purpose of the act, and it is not necessary that the title should set forth all the details of the act necessary to effectuate such purpose. To require this to be done would be substantially to repeat the act in its title. Black v. Cohen, 52 Ga. 621; Goldsmith v. Rome Railroad Co., 62 Ga. 478; Halleman v. Halleman, 65 Ga. 476; McCommons v. English & Co., 100 Ga. 653 (28 S. E. 386); Butner v. Boifeuillet, 100 Ga. 743 (28 S. E. 464); Mayor and Council of Macon v. Hughes, 110 Ga. 795 (36 S. E. 247).

4. . The next question propounded by the Court of Appeals is whether the "rule of the railroad commission requiring cars for intrastate shipments" imposes a burden upon interstate commerce, "for the reason that it has the effect of withdrawing equipments necessary to take care of the company’s interstate business, and is therefore void as being violative of” the provision of the constitution of -the United States, which confers upon Congress the power to regulate commerce among the several States; and, as applied to an- intrastate shipment, is it void because of the general terms employed, which might be broad enough to embrace all ears, whether for interstate or intrastate shipment? The State through its lawful agencies can make reasonable regulations for the management of railroads operating within its jurisdiction. The mere fact that the railroad company may also be engaged in interstate commerce does not exempt it from regulation by the State as to its intrastate business. The rule now under consideration — certainly as to intrastate business, which is the subject of the question propounded— is not in conflict with the provision of the constitution of the United States to which reference has been made above; nor would it be so, even if it indirectly or incidentally affected to a limited degree the interstate business of the company, where it does not directly burden interstate commerce. Southern Ry. Co. v. Grizzle, 131 Ga. 287 (62 S. E. 177); Southern Ry. Co. v. Brown, 131 Ga. 245 (62 S. E. 177); Seale v. State, 126 Ga. 644 (55 S. E. 472); Hennington v. State, 90 Ga. 396 (17 S. E. 1009); Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086, 41 L. ed. 166); Gladson v. Minnesota, 166 U. S. 427 (17 Sup. Ct. 627, 41 L. ed. 1064); Southern Ry. Co. v. King, 160 Fed. 332 (87 C. C. A. 284); Louis ville & Nashville R. Co. v. Kentucky, 183 U. S. 503 (22 Sup. Ct. 95, 46 L. R. A. 298); People v. Chicago, Indianapolis & Louisville Ry. Co., 223 Ill. 581 (79 N. E. 144); State v. Atlantic Coast Line R. Co. (Fla. 1908), 47 So. 969, supra; Southern Flour and Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. R. 356). The case of Houston & Texas Central R. Co. v. Mayes, 201 U. S. 329 (26 Sup. Ct. 491, 50 L. ed. 772), was relied on. But the decision in that case referred to interstate shipments, and the Texas act expressly limited the defenses which could be made in a suit based on it. By a majority of the Supreme Court that act was held invalid, though near to the line of legitimate regulation. The Georgia act contains no such provision; nor is it necessary for its constitutionality that it should on its face catalogue what defenses are open to the defendant in a suit to recover the amount fixed by the rule of the railroad commission. If an act can be construed so as to be constitutional, or so as to be unconstitutional, the former construction will be preferred. County of DeKalb v. City of Atlanta, 132 Ga. 727 (65 S. E. 72). Whether or not the rule would be subject to attack, if applied to interstate shipments, is not in question. It has a legitimate application to intrastate business, and so applied is not unconstitutional for the reason involved in this question. Even if a regulation would be invalid as applied to interstate commerce, it does not follow that it is so as to intrastate business. Kehrer v. Stewart, 197 U. S. 60 (25 Sup. Ct. 403, 49 L. ed. 663). On the face of this act and rule, as applied to intrastate shipments at least, there is no direct regulation or burden on interstate commerce. The arguments of possible inconvenience, possible need for ears elsewhere, etc., can not prevail. Intrastate commerce can not be regulated by the Federal government. If it can not be regulated by the State authorities because of fear or possibility of some hypothetical inconvenience in regard to the interstate business of the carrier, then the intrastate business of a railroad which traverses two or more States is practically free from any regulation.

5. Was the act of 1905 so far repealed by the act of August 23, 1907 (Acts 1907, p. 72), as to render not enforceable “penalties” (pecuniary liabilities) which had accrued to a shipper under the rule of the railroad commission prior to the passage of the latter act, but which had not been presented to the railroad commission in accordance with section 3 of the act of 1905 until August 24, 1907 ? While some of the language employed in the 11th section of the act of 1907 is apparently quite broad, yet, upon careful consideration, we are of the opinion that it did not wholly repeal the act of 1905, so as to revoke the power to make the rule which we have been considering, but only repealed the last two sections of that act. Repeals by implication are not favored. In the caption of the act of 1907 the intention in regard to the act of 1905 is thus expressed: “to repeal sections 3 and 4 of the act approved August 23, 1905, prescribing certain penalties and forms of procedure for enforcing same.” The 11th section of the later act declares that “section 3 and 4 of the act approved August 23, 1905, conferring upon the commission the power to regulate the time and manner within which the several railroads of the State shall receive, receipt for, forward and deliver to its destination freight, the said sections applying to penalties placed upon said railroad companies, providing penalties for the violation of rules, orders, and regulations established by the railroad commission with reference to the same and providing the procedure to enforce said penalties, be and the same are hereby repealed,” etc. It was sections 3 and 4 of the act of 1905 which were repealed. The descriptive terms, “conferring upon the commission the power to regulate the time and manner in which the several railroads of the State shall receive, receipt for, forward and deliver to its destination freight,” referred to the act of 1905 and were descriptive of it, and were probably added to avoid repealing a part of an act merely by reference to the date of the act and the sections thereof. This is made manifest by the fact that after this general reference to the act, in returning to a description of the sections repealed, it was said, “the said sections applying,” etc. Thus, both from caption and the body of the act of 1907, it appears that only sections 3 and 4 of the act of 1905 were repealed. Sections 1 and % conferred the power to make the rule. Neither of them was repealed. The repeal of section 4 clearly did not affect the antecedent portion of the act. The repeal of section 3 withdrew the provision for a hearing before the commission, but did not destroy the power conferred by the preceding portion of the act upon the commission to make the rule, or prevent suit from being brought 'for the amount named in such rule. Instead, the repeal of section 3 simply left the plaintiff to bring suit directly for the amount fixed by the rule, without any preliminary hearing before the commission. The fifth question certified by the Court of Appeals is therefore answered in the negative.

Some other questions were argued in the briefs of counsel for the railway company. But what we have already said answers all the questions propounded to us by the Court of Appeals, and we confine ourselves to them.