Arizona Eastern Railroad Co. v. State

• Decision Date: 30 March 1918
• Docket Number: Civil 1554
• Citation: 19 Ariz. 409,171 P. 906
• Parties: ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. STATE, Appellee
• Court: Arizona Supreme Court

171 P. 906

19 Ariz. 409

ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. STATE, Appellee

Civil No. 1554

Supreme Court of Arizona

March 30, 1918

APPEAL from a judgment of the Superior Court of the county of Maricopa.R. C. Stanford, Judge.Affirmed.

Mr. G P. Bullard and Mr. E. S. Ives, for Appellant.

Mr Wiley E. Jones, Attorney General, and Mr. R. W. Kramer and Mr. George W. Harben, Assistant Attorneys General, for the State.

OPINION

FRANKLIN, C. J.

The Revised Statutes of Arizona(Civ. Code) of 1913, provide as follows: "Par. 2166.It shall be unlawful for any person, firm, company or corporation, operating any railroad in the state of Arizona, to run or permit to be run over his , their, or its line of road, or any portion thereof, any train consisting of more than seventy freight, or other cars, exclusive of caboose.""Par 2168.Any person, firm, association, company, or corporation, operating any railroad in the state of Arizona, who shall willfully violate any of the provisions of this act, shall be liable to the state of Arizona for a penalty of not less than one hundred dollars, nor more than one thousand dollars, for each offense; and such penalty shall be recovered, and suits therefor brought by the Attorney General, or under his direction, in the name of the state of Arizona, in any county through which such railway may be run or operated, provided, however, that this act shall not apply in cases of engine failures between terminals."

The Attorney General brought a suit in the name of the state of Arizona against the railroad company to recover a penalty under the statute.The complaint, in substance, charged the railroad company with willfully operating a train between certain terminals consisting of more than 70 freightcars exclusive of the caboose, which act in operating said train of cars was not the result of an engine failure or failures between terminals.The state had the judgment as prayed, from which the railroad company appeals.Paragraph 2166, supra, is not criticized as an improper subject for legislative action, but the want of power in the legislature to enact the law is asserted as the defense of appellant to the suit; the contention being that under section 3 of article 15 of the Constitution the exercise of such governmental power vests in the Corporation Commission to the exclusion of any other agency of government.

In the case of State v. Tucson Gas & Electric Co.,15 Ariz. 294, 138 P. 781, this court had occasion to consider this provision of the Constitution with reference to the power to fix and prescribe just and reasonable classifications to be use collected by public service corporations within the state for services rendered therein.It was there determined that such power was by the instrument vested exclusively in the Corporation Commission, but it is obvious that such a determination may not be a guide to the solution of the question presented in this record, and, in resting the argument upon the mere citation of that case, the appellant throws no light upon other provisions of the Constitution that must be determinative of the matter now before us.If it can be prevented, no clause, sentence, or word in the Constitution shall be superfluous, void, or insignificant; it being the duty of this court as an expositor to make a construction of all parts of the Constitution together, and not of one part only.It was observed by the great Chief Justice, in Marbury v. Madison,1 Cranch, 137, 2 L.Ed. 60, that it cannot be presumed that any clause in the Constitution is without effect, and a construction which would lead to such result is inadmissible, unless the language of the Constitution renders it imperative.

The appellant, Arizona Eastern Railroad Company, is a corporation for the transportation of persons and property for profit.It is a railway heretofore constructed in this state.Section 10 of article 15 of the Constitution provides:

"Railways heretofore constructed, or that may hereafter be constructed, in this state, are hereby declared public highways, and all railroad, car, express, electric, transmission, telegraph, telephone, or pipe-line corporations, for the transportation of persons, or of electricity, messages, water, oil, or other property for profit, are declared to be common carriers and subject to control by law."

It is seen that the appellant comes within the declaration of this section.Anyone who contends that this provision is not to have its full measure of application must have a case that comes within some other section which cuts it down, or else that the section itself is so repugnant to the general purview of the Constitution that it can be given no rational meaning.In section 10, supra, no concealment of the meaning may possibly occur by reason of the language there employed.It is plain and unambiguous.Not a dubious word appears.The general intent and meaning of the section stands out in bold relief.A railway as a public highway and a railroad corporation within the enumeration of corporations classed as common carriers is subject to control by law.If there be a prohibition or limitation, then, upon the exercise of this control, we must find the particular clause which subjects it to a limitation or qualification.We have in this section a general intention expressed in the instrument, but if in any other parts we find a particular intention expressed which is incompatible with this general intention, the particular intention is to be considered in the nature of an exception.The particular intent incompatible with the general intent will be treated as an exception; the general intent being restrained to that extent only as may be imperatively necessary to the fitness of the matter contained in the exception.

In the Tucson Gas & Electric Company case, we found a particular intent in the matter of prescribing classifications, rates, and charges to be made and collected by public service corporations contained in section 3 which was incompatible with the general intent found in section 10; that the authority of the Corporation Commission to prescribe classifications, rates, and charges under said section is exclusive.Construing the various sections of article 15 of the Constitution together, and looking at the language employed with a regard to the general purview of the instrument, no other construction is possible if its several provisions are to be harmonized and made into a workable instrumentality.But it by no means follows that such an interpretation calls for an expression that the people have surrendered all governmental power over all corporations as they are classified either as public service corporations, common carriers, or public highways.Yet, if the view pressed upon this court by the appellant is to prevail, it naturally follows that the extent and elasticity of the power conferred upon the Corporation Commission in section 3 is subversive of all legislative control whatsoever, and this regardless of other provisions to be found in the Constitution bearing upon the matter; that, by construction, section 10 is so much Dead Sea fruit turning to ashes upon the lips.It is perfectly clear that no such meaning can be deduced from article 15 if it be articulated and a general purview of its provisions obtained.It will be observed by section 2 that corporations are classified as public service corporation:

"Sec. 2.All corporations other than municipal engaged in carrying persons or property for hire; or in furnishing gas, oil, or electricity for light, fuel or power; or in furnishing water for irrigation, fire protection, or other public purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers, shall be deemed public service corporations."

In section 3 follows an enumeration of the powers and duties of the Corporation Commission with reference to this class of corporations.In section 10, railways are declared to be public highways, and after this declaration follows an enumeration of certain corporations -- a railroad corporation being included -- which are declared to be common carriers and subject to control by law.

Compared with section 2, in section 10 different words are used.There is a different nomenclature used in placing these corporations in the different classes.The natural presumption would be that the different in language and in nomenclature was intended to express different ideas; each class to be governed by a separate purpose and to promote a particular object in view.The change of the form of expression in the two sections, in view of the entire enactment in which they occur, can indicate nothing else than a purpose to differentiate or change the meaning of the two sections.It is reasonably apparent from a consideration of the language of sections 2and3 that the idea there prevailing is the public service corporation, with those functions of the corporation uppermost which are called into activity and pertinent to its contact with the public.In short, the transaction of its business with the public.

"Sec 3.The Corporation Commission shall have full power to, and shall prescribe just and reasonable classifications to be used, and just and reasonable rates and charges to be made and collected, by public service corporations within the state for service rendered therein, and make reasonablerules, regulations, and orders, by...