Chicago, R. I. & P. Ry. Co. v. McElroy

• Decision Date: 13 December 1909
• Parties: CHICAGO, R. I. & P. RY. CO. v. McELROY.
• Court: Arkansas Supreme Court

123 S.W. 771

CHICAGO, R. I. & P. RY. CO. v. McELROY.

Supreme Court of Arkansas.

December 13, 1909.

Appeal from Circuit Court, Saline County; William Henry Evans, Judge.

Action by T. J. McElroy against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. S. Buzbee and John T. Hicks, for appellant. W. D. Brouse, for appellee.

McCULLOCH, C. J.

The General Assembly of 1887 passed an act (Laws 1887, p. 227) which fixed a maximum rate of three cents per mile (on all lines over 75 miles in length) for transportation of passengers by railroads in this state, and which prescribes against such carrier charging or receiving a greater rate a penalty of not less than $50 nor more than $300, to be recovered in a suit at law by the person aggrieved — which, of course, means the passenger who is compelled to pay the overcharge. In 1899 the General Assembly passed the act creating the railroad commission and prescribing its powers and duties, among other things providing that "said commission will make reasonable and just rates of freight, express and passenger tariffs to be observed by all persons and corporations operating any railroad," etc. Acts 1899, p. 86, § 9; Kirby's Dig. § 6802. The latter act further provides (section 14) that double the damages sustained by reason of any violation may be recovered from the carrier by any person suffering the damage, and that (section 18) for each violation a penalty of not less than $500 nor more than $3,000 may be recovered by the state in an action instituted by the prosecuting attorney for the commission; but the act expressly provides (section 30) "that the remedies hereby given shall be regarded as cumulative, and this act shall not be construed as repealing any statute giving such remedies." The question involved in the present case is whether or not the act of 1887 was impliedly repealed by the act of 1899; there being no express repeal.

Appellee recovered below a penalty for $50 assessed against appellant railroad company under the former statute. The question has never been raised here before, and the court has not passed on it, though there are two recent cases in which penalties were sought to be recovered under the old statute. Clark v. J. L. C. & E. R. R. Co., 87 Ark. 385, 112 S. W. 961; J. L. C. & E. R. R. Co. v. Brookfield, 87 Ark. 409, 112 S. W. 977. In those cases the question of the repeal of the statute was not suggested, either by court or by counsel, though in each case the court proceeded to construe the statute, and in both instances a conclusion favorable to the contention of the railroad company. The question of implied repeals has often received the attention of this court, beginning with the case of Pulaski County v. Downer, 10 Ark. 589, and coming down to the recent case of Welch Stave & Merc. Co. v. Stevenson, 122 S. W. 1000. Little, if anything, on the subject not found in the former cases can be said. In Coats v. Hill, 41 Ark. 149, Mr. Justice Smith, speaking for the court, said: "Repeals by implication are not favored. ...