Curoe v. Spokane & Inland Empire Railroad Co.

• Decision Date: 10 January 1920
• Citation: 32 Idaho 643,186 P. 1101
• Parties: SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

186 P. 1101

32 Idaho 643

SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

January 10, 1920

STATUTORY CONSTRUCTION-CONSTITUTIONAL LAW-TITLE OF ACT-RAILROADS-FIRE SPREADING FROM RIGHT OF WAY-NEGLIGENCE.

1. The rule which permits reading the title of an act in aid of statutory construction applies only in cases where the legislative meaning is left in doubt by failure to clearly express it in the law.

[As to the effect of the invalidity of title to statutes, see note in Ann.Cas. 1916D, 28.]

2. After the codification, by the legislature, of the laws of the state, it is too late to question the validity of one of them on the ground that the title in the bill by which it was originally enacted was insufficient to conform to art. 3 sec. 16, of the constitution.

3. A railroad company which, in violation of the law, permits combustible material, not necessary for the maintenance or operation of the road, to accumulate on its right of way and to remain there in sufficient quantity to communicate fire when started therein, to contiguous property of another, which is injured or destroyed thereby, is guilty of actionable negligence.

[As to the liability of railroad companies for fires, see notes in 38 Am.Dec. 70; 78 Am.Dec. 185; 6 Am.Rep. 597]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Ezra R Whitla and Graves, Kizer & Graves, for Appellant.

The court will construe the statute in the light of the fact that it was enacted for the preservation of timber land and that the legislative body could not have had in contemplation any law applicable generally to railroads. (Rural High School v. School District, 32 Idaho 325, 182 P. 859.)

"The constitution has made the title the conclusive index to the legislative intent as to what shall have operation." (Gerding v. Board of County Commrs., 13 Idaho 444, 90 P. 357; State v. Butterfield Live Stock Co., 17 Idaho 441, 134 Am. St. 263, 106 P. 455, 26 L. R. A., N. S., 1224; Hailey v. State Historical Soc. (Huston), 25 Idaho 165, 136 P. 212.)

"It is not per se negligence for railway companies to permit combustible materials, such as stalks, grass, grain or stubble, to grow or remain on its right of way in considerable quantities." (Union P. Ry. Co. v. Gilland, 4 Wyo. 395, 34 P. 953; St. Louis & S. F. Ry. Co. v. Jones, 59 Ark. 105, 26 S.W. 595.)

Black & Wernette, for Respondent.

Where the act is clear upon its face, and when standing alone is fairly susceptible of but one construction, that construction must be given to it. The prior acts may be resorted to to solve, but not to create, an ambiguity. (Lewis' Sutherland on Statutory Construction, 2d ed., sec. 450.)

Where the language of the section clearly conveys the intention of the legislature, and no doubt arises as to such intention, the court is not required to resort to the title to ascertain such intention. (State v. Paulsen, 21 Idaho 686, 123 P. 588.)

Sec. 1610, Rev. Codes, is broad, and must be held to apply to all railroads, no matter where they are located as to being near or distant from forests or timber lands.

Here we have a statute making it negligence for the company to have its right of way contain combustible material; that is the gist of the negligence of the defendant in this case, and it must be held that any fire started in the operation or as a result of the operation of appellant's trains must make appellant liable for the resulting damage. (Terre Haute & L. R. Co. v. Walsh, 11 Ind.App. 13, 38 N.E. 534; Chicago & E. I. R. Co. v. Goyette, 133 Ill. 21, 24 N.E. 549, 550; Jones v. Michigan Central R. Co., 59 Mich. 437, 26 N.W. 662, 664.)

A leading case where a statutory provision similar to the Idaho statute is involved is Diamond v. Northern P. Ry. Co., 6 Mont. 580, 13 P. 367, 370.

MORGAN, C. J. Rice, J., concurs. BUDGE, J., Dissenting.

OPINION

MORGAN, C. J.

On July 23, 1917, fire started in dry weeds and grass on appellant's right of way and spread to respondent's adjoining land and consumed grass in his pasture and wheat in his field. Immediately before the fire one of appellant's trains, propelled by electricity, passed the point where it occurred. The evidence does not disclose what caused the fire, and no negligence is charged against appellant other than its failure to keep its right of way free from the combustible material by means of which it was communicated to respondent's property.

Respondent relies upon C. S., secs. 2948 and 8346, and the trial court appears to have adopted the theory that these sections are applicable to the case. They contain the following provisions:

Sec. 2948. "Every person, firm or corporation operating a railroad shall keep the ground for 50 feet on each side of the center of the track, or such portion thereof as may be owned or controlled by such person, firm or corporation, clear of combustible materials, except ties and other materials necessary for the maintenance and operation of the road, from June 1 to October 1 of each year. . . . Any person, firm or corporation violating any provisions of this section shall be guilty of a misdemeanor and shall be subjected to a penalty of not more than $ 100 for each offense. . . . "

Sec. 8346. ". . . . any railway company which shall permit any fire to spread from its right of way to the adjoining lands, is guilty of a misdemeanor."

Appellant insists that sec. 2948 applies only to railroads in timbered lands and that the title of the bill, when it was first enacted in 1907, shows it to have been the legislative intent to thereby protect the forests; that to construe it otherwise would be to make it violative of the constitution, art. 3, sec. 16, which provides: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title; . . . . "

The rule which permits reading the title of an act in aid of statutory construction applies only in cases where the legislative meaning is left in doubt by failure to clearly and completely express it in the law. (State v. Paulsen, 21 Idaho 686, 123 P. 588.) It is said in Lewis' Sutherland on Statutory Construction, 2d ed., vol. 2, sec. 450, p. 856, quoting from Hamilton v. Rathbone, 175 U.S. 414, 20 S.Ct. 155, 44 L.Ed. 219, see, also, Rose's U.S. Notes: "The whole doctrine applicable to the subject may be summed up in the single observation that prior acts may be resorted to, to solve, but not to create, an ambiguity." The meaning of the legislature is so clearly expressed in the section under consideration as to prohibit search for it elsewhere.

The act of 1907 was incorporated in the Revised Codes of 1909 as sec. 1610, was amended by the 1909 legislature and, as amended, became sec. 2948, supra. This court, in Anderson v. Great Northern Ry. Co., 25 Idaho 433, Ann. Cas. 1916C, 191, 138 P. 127, held that after the codification, by the legislature, of the laws of the state, it is too late to question the validity of one of them on the ground that the title in the bill by which it was originally enacted was insufficient to conform to the above-mentioned section of the constitution.

The title to the act of 1909, in addition to referring to the repeal of sec. 1612 and the amendment of other sections of the Revised Codes, including 1610, indicates the purpose of the act to be the prevention of forest fires. The regulation of railroads to the end that fires be prevented and the prevention of fires in forested areas constitute but a single subject, and matters properly connected therewith, within the meaning of art. 3, sec. 16, above quoted. If the 1909 act should be held to be obnoxious to the constitution, in that it embraces more than one subject, it would avail appellant nothing, because, in that event, the act would be void and the section would remain as found in the Revised Codes, which differs from the amended law only in that what is therein referred to as the "closed season" is made to commence May 1st instead of June 1st of each year.

It is contended respondent should not be permitted to recover damages for the loss of his grass and grain because of his failure to show appellant was responsible for starting the fire.

It is clear the legislature intended by secs. 2948 and 8346 to require owners of railroads to prevent fire from spreading from their rights of way on to contiguous lands. As a means to that end the provision first quoted was placed in the former section. Appellant's liability arises from a violation of its duty in that it permitted an accumulation of combustible material to remain on its right of way in sufficient quantity, during the season when it was unlawful to do so, to communicate fire, when started therein, to the property of respondent. This was a violation of law enacted for the protection of respondent, and others like situated, and constituted negligence resulting in damage for which this action is maintainable. (1 C. J. 954 and 957; 20 R. C. L. 38; Denton v. Missouri, K. & T. Ry. Co., 90 Kan. 51, Ann. Cas. 1915B, 639, 133 P. 558, 47 L. R. A., N. S., 820; Evers v. Davis, 86 N.J.L. 196, 90 A. 677; Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387, L. R. A. 1918A, 166; Klatt v. N.C. Foster Lumber Co., 97 Wis. 641, 73 N.W. 563.)

The judgment is affirmed. Costs are awarded to respondent.

Rice, J., concurs.

DISSENT BY: BUDGE

BUDGE J., Dissenting.--

While it was alleged in the complaint that the fire "was negligently permitted by said defendant to spread northward from the defendant's said right of way into the pasture grass of plain...