Hall v. Commonwealth , 129 Va. 738 ( 1921 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1] 1. The question presented by the record in this case for our decision is whether the provisions of the State automobile law fixing the speed limit therein set forth must be obeyed by a. United States employee while engaged in transporting United States mail in a United States owned automobile pursuant to the direction of the Postmaster General, which direction, so far as the record discloses, does not fix a schedule for the carrying or delivery of the mail which requires the employee to violate the aforesaid provisions of the State statute?

[2] It does not follow from the facts shown in evidence concerning the scheduled time at which the accused was required to reach Winchester and from the fact that he reached that point seventeen minutes late, on the trip on which he exceeded the speed limit of the State statute, while passing through the town of Leesburg, en route from Washington via Leesburg to Winchester, that the direction of the Postmaster General required the accused to violate the State statutory speed limits in order to reach Winchester on scheduled time. The record does not show the scheduled time for leaving Washington, or for the arrival or the time of the actual arrival at Leesburg post office, or the distance from Washington to Leesburg post office, or from the latter post office to Winchester post office, along the post routes between those places. That is to say, the record in this case does not show that the speed limit provisions of the State statute are at all in conflict with the aforesaid direction of the Postmaster General, or that they at all interfere with the performance by the accused of his duties as an employee of the Federal government. So far as the record before us discloses, the Federal statutes on the subject and regulations thereunder are in entire accord with the State statute aforesaid, no conflict appearing to exist between them.

Such being the situation, we have no hesitancy in holding that the State statute in question is a valid exercise of the police power of the State in so far as its speed limit provisions are involved in this case, and should have been obeyed by the accused.

The mere fact that the provisions of the State statute in question affect a Federal employee or instrumentality is immaterial. And certainly where the statute does not attempt to control and does not in its operation even incidentally interfere in any way with the performance of duty of the Federal employee, it is valid.

As said in C. & A. Ry. Co. v. City of Carlinville, 200 Ill. 314, 325, 65 N. E. 730, 733, 60 L. R. A. 391, 395 (93 Am. St. Rep. 190), of an ordinance limiting the speed of trains on an interstate railway carrying United States mail to ten miles an hour within the corporate limits of the municipality : “The ordinance does not undertake to regulate commerce between the States or interfere with the transportation of the mail, and amounts to but a reasonable regulation of the speed of trains within the corporate limits of the city, and such regulation has been uniformly held valid;” citing a number of decisions of the Supreme Court of the United States.

As held in Gladson v. State of Minnesota, 166 U. S. 427, 17 Sup. Ct. 627, 41 L. Ed. 1064, an intrastate train “carrying United States mails is not exempt from the operation of a State law requiring all regular passenger trains to .stop at all stations at county seats.”

In Commonwealth v. Closson, 229 Mass. 329, 118 N. E. 653, L. R. A. 1918C, 939, cited with approval by the Supreme Court of the United States in the recent case of Johnson v. Maryland, 254 U. S. 41 Supt. Ct. 16, 65 L. Ed., hereinafter more particularly referred to, the accused was charged with the violation of the traffic rules and regulations of the State. The accused rested his defense, as stated in the opinion of the court, “upon the ground that, being employed as a mail carrier using a vehicle for the delivery of mail, he is immune from prosecution and punishment.” The opinion thereupon proceeds as follows:

“The designated streets or ways are not, however, instrumentalities created by the general government, where ‘exemption from State control is essential to the independent .sovereign authority of the United States within the sphere of their delegated powers.’ If they were, the defendant has •committed no offense. Commonwealth v. Clary, 8 Mass. 72; Newcomb v. Rockport, 183 Mass. 74, 76, 78, 66 N. E. 587. While undoubtedly they are post roads under the act of Congress, March 1, 1884, chap. 9, enacting that ‘all public roads and highways, while kept up and maintained as such, are hereby declared to be post routes’ ([23 Stat. at L. 3] U. S. Comp. Stat. 1916, sec. 7457), and whoever knowingly and willfully obstructs or retards ‘the passage of the mail, or any carriage, * * * the driver, or carrier, * * *’ is, upon conviction, subject to fine or imprisonment, or both, by U. S. Rev. Stats., sec. 3995, act of March 4, 1909, chap. 321, sec. 201, 35 Stat. at L. 1127, Comp. Stat. 1916, sec.. 10371, yet the ways remain public ways laid out and maintained by the Commonwealth, which has the exclusive power not only of alteration and of discontinuance, but to make- and enforce reasonable regulations for their use. Nor do. the facilities thereby afforded for transportation of' the mails confer extraordinary rights upon mail carriers to" use the ways as they please, or necessarily or impliedly do away with the power of supervision and control inherent to the State. Commonwealth v. Breakwater Co., 214 Mass. 10, 100 N. E. 1034; Postal Teleg. Cable Co. v. Chicopee, 207 Mass. 341, 350, 93 N. E. 927, 32 L. R. A. (N. S.) 997; Dickey v. Maysville, W., etc., P. L. Turnpike Road Co., 7 Dana. 113; Searight v. Stokes, 3 How. 151, 11 L. Ed. 537 ; Price v. Penn. R. Co., 113 U. S. 221, 28 L. Ed. 931, 5 Sup. Ct. Rep. 427; St. Louis v. Western U. Teleg. Co., 148 U. S. 92, 37 L. Ed. 380, 13 Sup. Ct. Rep. 485; Martin v. Pittsburg & L. E. R. Co., 203 U. S. 284, 51 L. Ed. 184, 27 Sup. Ct. Rep. 100, 8 Ann. Cas. 87. The use of the streets by travelers of every description is not prohibited. It is only the mode of operation by drivers of vehicles which is regulated, and, being reasonable, because well adapted to the-security and protection of all travelers, the rules are constitutional and their violation is punishable as a criminal' offense. Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264, 127 Am. St. Rep. 513 ; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; Commonwealth v. Feeney, 221 Mass. 323, 108 N. E. 1068. The plea to the jurisdiction and, the exception accordingly must be overruled.”

See also the note to last-quoted case L. R. A. 1918C, 940,. et seq.

A great number of Supreme Court and State decisions' are cited and relied on for the accused. Among them are' the following: McCullough v. Maryland, 4 Wheat, 316, 429, 4 L. Ed. 579; Hall v. DeCuir, 95 U. S. 485, 499, 24 L. Ed. 547; Commonwealth v. Andrews, 1 Va. Dec. 190, 197, 200; Weston v. Charleston, 2 Pet. 449, 465, et seq., 7 L. Ed. 481; Henderson v. Mayor, 92 U. S. 259, 272, 23 L. Ed. 543; Ohio v. Thomas, 173 U. S. 276, 283, 19 Sup. Ct. 453, 43 L. Ed. 699; Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Ex parte Siebold, 100 U. S. 371, 394-5, 25 L. Ed. 717; In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 186, 8 Sup. Ct. 737, 31 L. Ed. 650; In re Waite (D. C.), 81 Fed. 359; Flaherty v. Hanson, 215 U. S. 515, 30 Sup. Ct. 179, 54 L. Ed. 307; Boske v. Comingore, 177 U. S. 459, 468-70, 20 Sup. Ct. 701, 44 L. Ed. 846; Williams v. Talladega, 226 U. S. 404, 33 Sup. Ct. 116, 57 L. Ed. 275; Farmers’ Bank v. Minnesota, 232 U. S. 516, 526, 34 Sup. Ct. 354, 58 L. Ed. 706 ; U. S. v. Ansonia Co., 218 U. S. 452, 471, 31 Sup. Ct. 49, 54 L. Ed. 1107; Holmes v. Jennison, 14 Pet. 540, 574-5-7, 614, 10 L. Ed. 579; In re Lewis (D. C.), 83 Fed. 159; In re Lewis (C. C. A.), 254 Fed. 917, 920-1; U. S. v. Fuellhart (C. C.), 106 Fed. 911; U. S. v. Lipsett (D. C.), 156 Fed. 65; Pundt v. Pendleton (D. C.), 167 Fed. 997; In re Thomas, 87 Fed. 453, 31 C. C. A. 80; Stegall v. Thurman (D. C.), 175 Fed. 813; In re Wulzen (D. C.), 235 Fed. 362, Ann. Cas. 1917A, 274; South Carolina v. U. S. 199 U. S. 437, 455, 26 Sup. Ct. 110, 50 L. Ed. 261, 4 Ann. Cas. 737; Rhode Island v. Burton, 41 R. I. 303, 103 Atl. 962, L. R. A. 1918F, 559; Johnson v. Maryland, 254 U. S., 41 Sup. Ct. 16, 65 L. Ed. Of these authorities, this is said in the brief for the accused: “There is but one determinative factor underlying the conclusions reached in the cases above cited, viz: the ‘supremacy’ of the Federal government in the particular operation or operations to which the State sought to apply its laws. No court can undertake to weigh the attempted State control and uphold it if the court believes the State control is reasonable. As so well stated iii Farmers’ Bank v. Minnesota, 232 U. S. 516, 526, 34 Sup. Ct. 354, 58 L. Ed. 706, quoting from McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, in speaking of the right of a State to tax a Federal contract, to any extent, however inconsiderable, it is a burden on the operations of government. It may'be carried to an extent which shall arrest them entirely.’ In other words, where, as in the case at bar, it appears that the State law is attempted to be applied directly to the Federal operation, it becomes the duty of the court to enforce the ‘supremacy’ of the Federal government.” But without entering upon the consideration of the question of whether any and every conflict whatsoever between State statutes enacted in the exercise of the police power reserved to the States will render such statutes invalid as in conflict with Federal statutes on the same subject, it is manifest that the authorities cited and relied on by the accused certainly have no application where, as in the instant case, the State statute is not in conflict with the Federal ‘ statutes involved and do not, so far as the record discloses, interfere at all with the particular Federal operation in question. This will more distinctly appear from a consideration of the two cases last above cited, which are especially relied on for the accused.

In the case of Rhode Island v. Burton, it appears from the question certified by the trial court for decision by the appellate court, that the specific instruction tq the Federal officer, from his superior officer, was “to proceed with all possible dispatch, and assumed by the officer to necessitate the violation of the speed laws (of the State), and which instructions he was obliged to obey in a matter claimed by said officer to be of urgency and in a matter appertaining to the conduct of the war between the United States and Germany.” Here was a conflict between State and Federal laws and a conflict of duty of action in obedience to those laws. Such is not the case presented by the record before us.

In the case of Johnson v. Maryland, the accused was convicted and fined for driving a government motor truck in the transportation of mails over a post road in Maryland without having passed the examination and paid the fee for and obtained the license to operate the motor truck as required by the State statute. The Supreme Court held in that case, it is true (Mr. Justice Pitney and Mr. Justice McReynolds dissenting), that the provisions of the State statute making such requirements are invalid; but it so held on the ground that such State statute required the “instruments of the United States * * * to desist from performance (of their duties) until they satisfy a State officer upon examination that they are competent for a necessary part of them, and pay a fee for permission to go on.” The court says: “Such requirement does not merely touch the government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the government has pronounced sufficient.” Here again was an actual conflict between State and Federal laws and of duty of action in obedience to those laws, which is not presented by the case before us.

As said in the course of the opinion of the Supreme Court in the case last cited: “Of course, an employee of the United States does not secure a general immunity from State law while acting in the course of his employment. That was decided long ago in United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15, 316, 5 Op. Attys. Gen. 554. It very well may be that when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment — as, for instance, a statute or ordinance regulating the mode of turning the corner of streets. Commonwealth v. Closson, 229 Mass. 329, 118 N. E. 653, L. R. A. 1918C, 939.”

So far as appears from the record of the case before us, “the United States has not spoken” on the subject of the speed at which it was the duty of the accused to travel in such way as to make the provisions of the Virginia statute in question in any way interfere with the performance of the Federal duties of the accused.

The case will, therefore, be affirmed.

Affirmed.