Com. v. Louisville & N.R. Co.

• Decision Date: 15 October 1920
• Citation: 224 S.W. 847,189 Ky. 309
• Parties: COMMONWEALTH v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

224 S.W. 847

189 Ky. 309

COMMONWEALTH v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

October 15, 1920

Appeal from Circuit Court, Ohio County.

The Louisville & Nashville Railroad Company was indicted for violating a state statute relating to maintenance of waiting rooms, and, from a judgment sustaining a demurrer, the Commonwealth appeals. Affirmed.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and C. E. Smith, of Hartford, for the Commonwealth.

Benjamin D. Warfield, of Louisville, and Thos. E. Sandidge, of Owensboro, for appellee.

QUIN J.

Is a railroad company whose property is under federal control and while so operated subject to indictment for an alleged violation of the Kentucky Statutes relating to the maintenance of waiting rooms? This, the question for our decision, must be answered in the negative.

The present appeal is from a judgment sustaining a demurrer to an indictment charging appellee with the violation of section 772, Kentucky Statutes, in regard to the proper maintenance of a convenient and suitable waiting room at its depot in Centertown, Ky. The demurrer was sustained:

(1) Because the indictment was bad for duplicity, in that it charged offenses under sections 772 and 784 of the Statutes. This defense, however, has been disposed of by the decision in I. C. R. R. Co. v. Commonwealth, 179 Ky. 28, 200 S.W. 17, where a demurrer to an indictment couched in practically the identical language as the one under consideration was sustained.

(2) Because at the time of the alleged acts charged in the indictment appellee was not operating its line of railroad same having passed under federal control at a date prior to the commission of the acts complained of.

Pursuant to the power invested in him by Congress in certain resolutions and statutes passed in August, 1916, the President on December 26, 1917, proclaimed that on December 28, 1917, he would take possession and assume control of each and every system of transportation in the United States. This included all equipment and appurtenances used in the operation of the lines. Effective on said last-named date the railroads of this country passed into the possession and under the control and operation of the Director General of Railroads, who was appointed by the proclamation aforesaid. On March 21, 1918, Congress passed what is commonly known as the Federal Control Act (U. S. Comp. St. 1918, U.S. Comp. St Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p), which, among other things, authorized the President to agree upon a just compensation with the owners of railroads while the roads were under federal control.

It is conceded by the commonwealth that, if the court's decision on this second proposition is a correct exposition of the law, the indictment is not good, and cannot be made so. But it is contended that the acts of Congress do not apply to violations of the penal laws. The Director General of Railroads on October 28 promulgated what is known as General Order No. 50, providing in part as follows:

"It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad system of transportation by the Director General of Railroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise: Provided however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures."

The constitutionality of this order has been attacked in a number of cases, and different courts have expressed contrary views in regard thereto, but we do not find it necessary in the present case to pass upon this question.

In section 10 of the act of March 21, 1918 (U. S. Comp. Stat. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4j), it is provided in part as follows:

"Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law." Section 12 of the act (U. S. Comp. Stats. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4 l), among other things, provides that--

"Moneys and other property derived from the operation of the carriers during federal control are hereby declared to be the property of the United States."

In Northern Pacific Ry. Co. et al. v. State of North Dakota ex rel., etc., 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it was held that under the Federal Control Act the railroads were in the full possession and control of the federal government, and through the President and the Interstate Commerce Commission that government was empowered to fix rates on intrastate traffic, superseding the state power over that subject, and that the Federal Control Act was conclusive and complete as to the government ownership and control of the railroads and the operation thereof. As said by the Supreme Court in the case supra, the act contemplated one control, one administration, one power for the accomplishment of the one purpose, the complete possession by governmental authority to replace for the period provided the private ownership theretofore existing.

A similar conclusion as to the effect of governmental control has been reached in many suits for personal injuries, among other the following: Rutherford v. Union P. R. R. Co. (D C.) 254 F. 880; Dahn v. McAdoo, Director General, etc. (D. C.) 256 F. 549; Mardis v. Hines, Director General, etc. (D. C.) 258 F. 945; Nash v. Southern P. R. R. Co. ...