Fort Worth & D. C. Ry. Co. v. State
| Decision Date | 06 May 1925 |
| Docket Number | (No. 2488.) |
| Citation | 275 S.W. 111 |
| Parties | FORT WORTH & D. C. RY. CO. v. STATE.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Clay County; Bruce Young, Judge.
Action by the State of Texas against the Fort Worth & Denver City Railway Company. From a judgment for the State, defendant appeals. Affirmed.
Thompson, Barwise & Wharton and Seth Barwise, all of Fort Worth, Turner, Dooley & Gibson, of Amarillo, and Taylor, Muse & Taylor and J. L. Lackey, all of Wichita Falls, for appellant.
Wantland, Dickey & Glasgow, Vincent Stine, and R. Loftin, all of Henrietta, for appellee.
The state of Texas, by the county attorney of Clay county, on the 8th day of November, 1923, filed this suit in the district court of said county against the Fort Worth & Denver City Railway Company.
The state alleges:
That the company is a railroad corporation, duly and legally incorporated under the laws of the state of Texas, owns and operates a railroad in Texas from Fort Worth, in Tarrant county, to Texline, in Dallam county, and in and through Clay county and the town of Jolly, situated in Clay county, for the transportation of passengers, and has and uses a passenger station and depot in said town.
That from March 31, 1920, to November 8, 1923, a period of 187 consecutive weeks, the company operated its railroad through the town and had and used a passenger station and depot in said town, but had not, during such time, constructed, maintained, and kept suitable and separate water-closets or privies for both male and female persons at said passenger station in Jolly, either within said depot or in connection therewith, or within a reasonable and convenient distance therefrom, to accommodate its passengers received on and discharged from its trains at said station, and its patrons and employees having business with the company at the station.
That the company has not constructed and maintained or kept any separate or suitable water-closets or privies for both male and female persons at its passenger station in Jolly within the depot in connection therewith, or within a reasonable and convenient distance therefrom, for the accommodation of its passengers received on and discharged from its trains at said station, and for the accommodation of its patrons and employees who have business with the company at such station, but only constructed, maintained, and kept a water-closet or privy with two compartments, separated by a thin partition, all under the same roof, and no sign is displayed by which a party can tell which compartment is for males and which is for females, but both must be used indiscriminately, and this does not constitute a separate and suitable water-closet or privy for both males and females.
That if it should be held that the company has constructed, maintained, and kept separate water-closets and privies for both male and female persons at the station of Jolly, then the state alleges that for the 187 weeks above specified the company has not kept said water-closets or privies, and the depot grounds adjacent thereto, well lighted at such hours in the nighttime as its passengers and patrons have occasion to be at the station for the purpose of taking passage on the company's train, or waiting for its arrival, or after its departure, for a period of at least 30 minutes before the time of its arrival and 30 minutes thereafter.
That at its said station at Jolly the company has had passenger trains arriving during said 187 weeks, both in the daytime and in the nighttime, and received on and discharged passengers from its trains both day and night for said period of 187 weeks.
The state prays for the penalty provided by the statute of $50 per week for the 187 weeks.
The company answered by general demurrer, a number of special exceptions, general denial, not guilty, admits that it is a common carrier, and alleges that it is engaged in interstate commerce, carrying passengers and freight for hire, and subject to and under the acts of congress, and during the time involved in this controversy the depot, toilets, grounds, buildings, and structures mentioned were used in connection with its interstate business; that the statutes of Texas relied on for recovery have been superseded by legislation of Congress, and the state is not entitled to recover.
The company further alleges, if it be true that its water-closets were not lighted as the law requires, it was not the fault of the railroad, for it had in good faith used its best efforts to keep said water-closets lighted, and did equip them with lights as required, but transient people, laborers, and criminals at and around Jolly, whom the company did not and could not know, broke and destroyed the lights with which the water-closets and depot grounds were lighted, on account of which the company was unable to keep and maintain said water-closets and depot grounds lighted, for which reason the state was not entitled to recover.
No jury was demanded, and the court at the conclusion of the evidence rendered judgment for the state of Texas, hereinafter called appellee, for the sum of $3,000 and costs from which judgment the company, hereinafter called appellant, has appealed.
Appellant, by proper assignments, attacks the constitutionality of the law on which the right of recovery is based, and says the court committed error in rendering judgment against it because such law is too indefinite and uncertain, is discriminatory, is arbitrary, unjust, and unreasonable, makes no allowance for fires, accidents, acts of God or other unavoidable causes, and is in violation of the Fourteenth Amendment to the federal Constitution. These contentions of appellant have heretofore been decided against it in the following authorities: State v. T. & P. Ry. Co., 106 Tex. 18, 154 S. W. 1159; Id. (Tex. Civ. App.) 143 S. W. 223; M. K. & T. Ry. Co. of Texas v. State (Tex. Civ. App.) 97 S. W. 720; Allen v. Texas & Pacific Ry. Co., 100 Tex. 525, 101 S. W. 792; H. & T. C. Ry. Co. v. State, 101 Tex. 333, 107 S. W. 525; Strickland et al. v. Lakeside Irr. Co. (Tex. Civ. App.) 175 S. W. 740; C., R. I. & G. Ry. Co. v. State of Arkansas, 219 U. S. 453, 31 S. Ct. 275, 55 L. Ed. 290; St. Louis, I. M. & S. Ry. Co. v. State of Arkansas, 240 U. S. 518 36 S. Ct. 443, 60 L. Ed. 776; Chicago & A. R. Co. v. Tranberger, 238 U. S. 67, 35 S. Ct. 678, 59 L. Ed. 1204.
Appellant assigns as error the action of the trial court in rendering judgment against it, because the proof failed to show, and the petition of appellee to which it excepted failed to allege, that the county attorney was directed by the Attorney General of the state to bring the suit, or that it was instituted on credible information furnished him. Article 6594, of Vernon's Sayles' Civil Statutes, 1914, among other things, provides:
"The county attorney of the county in which such station is located, and in case there is no such...
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Missouri, K. & T. Ry. Co. of Texas v. State
...record and briefs in cause No. 2488, Fort Worth & Denver City Railway Co. v. State of Texas, in which case we this day file our opinion, 275 S. W. 111. For the reasons given in that opinion, the judgment in this case is ...