Cram v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 11 June 1909
• Docket Number: 15,148
• Citation: 122 N.W. 31,84 Neb. 607
• Parties: WILBER I. CRAM, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT. [*]
• Court: Nebraska Supreme Court

122 N.W. 31

84 Neb. 607

WILBER I. CRAM, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT. ^[*]

No. 15,148

Supreme Court of Nebraska

June 11, 1909

APPEAL from the district court for Garfield county: JAMES N. PAUL JUDGE. Affirmed on condition.

AFFIRMED.

James E. Kelby, Frank E. Bishop and Fred M. Deweese, for appellant.

E. J Clements, contra.

William T. Thompson, Attorney General, C. C. Flansburg and B. T White, amici curiae.

ROOT J. FAWCETT, J., concurring. BARNES, J., dissenting.

OPINION

ROOT, J.

Action under chapter 107, laws 1905, being sections 10606 and 10607, Ann. St. 1907. Judgment was rendered in favor of plaintiff, and defendant appeals.

This case has been elaborately briefed and exhaustively argued by counsel for the respective litigants, and by friends of the court, but more attention has been given to the validity of the statute than to the facts in the instant case. The act is as follows: "Section 10606. It is hereby declared and made the duty of each corporation, individual, or association of individuals, operating any railroad as a public carrier of freight in the state of Nebraska, in transporting live stock from one point to another in said state in car-load lots, in consideration of the freight charges paid therefor, to run their train conveying the same at a rate of speed so that the time consumed in said journey from the initial point of receiving said stock to the point of feeding or destination, shall not exceed one hour for each eighteen miles traveled including the time of stops at stations or other points, provided, in cases where the initial point is not a division station and on all branch lines not exceeding 125 miles in length, the rate of speed shall be such that not more than one hour shall be consumed in traversing each twelve miles of the distance including the time of stops at stations or other points, from the initial point to the first division station or over said branches. The time consumed in picking up and setting out, loading or unloading stock at stations, shall not be included in the time required, as provided in this schedule. Provided, further, that upon branch lines not exceeding 125 miles in length live stock of less than six cars in one consignment, each railroad company in this state may select and designate three days in each week as stock shipping days, and publish and make public the days so designated and after giving ten days' notice of the days so selected and designated, shall be required upon its branch lines to conform to the schedule in this act provided, only upon said days so designated as stock shipping days.

"Section 10607. Any individual, corporation, or association of individuals, violating any provisions of this act shall pay to the owner of such live stock, the sum of ten dollars for each hour for each car it extends or prolongs the time of transportation beyond the period herein limited as liquidated damages to be recovered in an ordinary action, as other debts are recovered."

1. It is argued that the legislature in enacting said statute violated section 11, art. III of the constitution, because the law, if given effect, amends sections 10596, 10597 and 10598, Ann. St. 1907, and the act of 1905 does not mention or repeal the statutes thus amended. The act under consideration is complete in itself, and, although it may conflict somewhat with section 10597, supra, it will not for that reason be held void, as the earlier act must yield to the later. State v. Omaha Elevator Co., 75 Neb. 637, 106 N.W. 979; Bryant v. Dakota County, 53 Neb. 755, 74 N.W. 313. The act of 1905 does not in any manner modify sections 10596 or 10598, supra.

2. It is next suggested that the statute deprives a railway company of the equal protection of the law, in that it forecloses any defense that might reasonably exist in the carrier's favor and provides for the payment of an arbitrary sum to the shipper under certain conditions without regard to whether he is damaged or not, and thereby provides for the taking of the railway's property without due process of law. As to the first of the last stated propositions, defendant is in the peculiar position of urging that it is without a defense, the statute being considered, and the court, not having the assistance of counsel on this branch of the law, will not exhaustively consider the question. The statute does not contain any exceptions, and defendant argues that neither the act of God nor inevitable accident would excuse it for failure to deliver a car-load of stock within the time limit. Although we do not agree with counsel, it is unnecessary to inquire concerning what facts would be a lawful excuse for a carrier in a suit like the one at bar. A statute will be read in connection with all other enactments upon that subject. State v. Omaha Elevator Co., 75 Neb. 637, 106 N.W. 979; Rohrer v. Hastings Brewing Co., 83 Neb. 111, 119 N.W. 27; Sutherland (Lewis), Statutory Construction (2d ed.), sec. 448. It is also a truism that "when statutes are made, there are some things which are exempted and fore-prized out of the provisions thereof, by the law of reason, though not expressly mentioned: thus, things for necessity's sake, or to prevent a failure of justice, are excepted out of statutes." Dwarris (Potter's), Statutes and Constitutions, p. 123, rule 5. It was held in United States v. Kirby, 7 Wall. (U. S.), 482, 19 L.Ed. 278, that, although the statute providing a penalty for interfering with the transmission of the mails did not contain any exception, yet an officer might lawfully arrest a mail carrier upon a warrant charging him with the crime of murder. See, also, Tsoi Sim v. United States, 116 F. 920, 54 C.C.A. (U.S.) 154; State v. Barge, 82 Minn. 256, 84 N.W. 911; State v. Rollins, 80 Minn. 216, 83 N.W. 141. In Sullivan Savings Institution v. Sharp, 2 Neb. Unoff. 300, 96 N.W. 522, it was held that a mortgagee was not liable in liquidated damages for refusing to cancel a mortgage if the right of the person making the demand was not clear. The statute does not deny the carrier the right to defend an action brought thereon, nor state what, if any defenses may or may not be available in such a case. Defendant will not be in position to complain in this particular until, in a concrete case, wherein it has presented and maintained or offered to maintain a legitimate defense, the courts have determined that the statute denies the carrier that right. Whitehead v. Wilmington & W. R. Co., 87 N.C. 255; Allen v. Texas & P. R. Co., 100 Tex. 525, 101 S.W. 792.

Concerning the claim that the enforcement of the statute will amount to the taking of defendant's property without due process of law, it may be broadly stated that the carrier is not situated with reference to the public, and the statute, as natural persons engaged in the ordinary vocations in life are with reference to each other. A speed of 12 or 18 miles an hour for defendant's freight trains is not prima facie unreasonable, because defendant's testimony shows that it operated said trains on some parts of its railway at the rate of 30 miles an hour. It may be expensive for the railway in every instance to maintain the average speed demanded by the statute. A car of live stock transported from a branch line to a division may not reach the latter station in time to be included within a freight train going in the desired direction on the main line, and to devote a locomotive exclusively to the one car for any considerable distance would entail a considerable expense for the carrier. However, the railway company is permitted to charge remunerative rates for the transportation of freight. Its methods of bookkeeping and of collecting and tabulating statistics are such that it can with reasonable exactitude ascertain the cost to it, and a fair charge to the shipper for transporting any particular property. If the legislature has by regulating the service increased the expense of transporting live stock in Nebraska, and to comply with the statute will wipe out a reasonable margin of profit for the carrier on all of its intrastate business, it has ample recourse in an increase of rates, so that in the end, viewed as a general proposition, the enforcement of the law to the extreme suggested by defendant's learned counsel will not deprive the carrier of any just profit nor take its property without due process of law. In the instant case, the enforcement of the law, as we view the record, will not deprive defendant of any constitutional guarantee, state or national. Defendant's property is affected by a public interest, and, having devoted that property to a use in which the public have an interest, it must, to the limit of the interest thus acquired by the public, submit to the control of such property for the public good. City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N.E. 853; Chicago, B. & Q. R. Co. v. Iowa, 94 U.S. 155, 24 L.Ed. 94. The public is interested not only in being permitted to have its property transported for a reasonable compensation, but also in having that property, especially if subject to rapid depreciation, transported with reasonable promptness and care.

Before the enactment of this statute, the carrier was liable in damages to the shipper if it unnecessarily and unreasonably delayed the transportation of live stock committed to its possession for carriage. Nelson v. Chicago, B. & Q. R Co., 78 Neb. 57, 110 N.W. 741; Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140, 71 N.W. 967. The legislature, in passing from the subject of compensation to that of service, kept well within its constitutional rights, and the inquiry should be confined to ascertaining whether the operation of the law will impose such an undue burden...