Missouri, K. & T. Ry. Co. of Texas v. State

• Decision Date: 09 April 1913
• Docket Number: (No. 5159.)
• Citation: 167 S.W. 822
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
• Court: Texas Court of Appeals

167 S.W. 822

MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.

(No. 5159.)

Court of Civil Appeals of Texas. Austin.

April 9, 1913.

On Motion for Rehearing, May 13, 1914.

Rehearing Denied June 10, 1914.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by the State of Texas against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing.

A. S. Coke and A. H. McKnight, both of Dallas, and Fiset & McClendon, of Austin, for appellant. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.

RICE, J.

As appellant's statement of the nature and result of the suit is concurred in by appellee, the same will be adopted, and is as follows: This suit was instituted by the state of Texas against appellant to recover penalties aggregating $400,000, on account of 80 alleged violations of passenger circular No. 18, issued by the Railroad Commission of Texas, relating to the running of passenger trains on schedule time, commonly called "the thirty-minute order"; said violations occurring between September 8, 1910, and November 8, 1910. A trial before the court resulted in a judgment against appellant for $14,000, from which this appeal is prosecuted.

Said circular 18 reads as follows:

"Each and every railroad company operating a railroad in this state shall start its passenger trains from the points of origin in accordance with advertised schedule, and said trains, except from unavoidable accidents thereto en route, shall observe and conform to the published schedule as to arrival and departure at the several stations on the line: Provided, that trains may be held not to exceed thirty (30) minutes at origin or at junction points with other lines to make connection with trains on such other lines. If, at the expiration of said thirty minutes, connecting trains are in sight, ten minutes, in addition to said thirty minutes, will be allowed in which to make the connection. Where connecting trains arrive within the time above allowed, a reasonable time, in addition to that provided for, will be allowed for transfer of passengers, mail, express, and baggage. Where connections are reliably reported to be more than thirty minutes late, no wait will be made."

Article 6552, Revised Statutes of 1911 (article 4494, R. S. 1895), upon which said order is predicated, reads:

"Every such corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, with a reasonable time previous thereto, offer or be offered for transportation at the place of starting and at junctions of other roads and at sidings and stopping places established for receiving and discharging way passengers and freights, and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the tolls, freight or fare legally authorized therefor. Failure on the part of the railroad companies to comply with the requirements of this article shall be deemed an abuse of their rights and privileges and subject to regulation and correction by the Railroad Commission."

Article 6672, R. S. 1911, provides that:

"If any railroad company doing business in this state shall hereafter violate any other provision of this chapter, or shall do any other act herein prohibited, or shall fail or refuse to perform any other duty enjoined upon it for which a penalty has not been provided by law, or shall fail, neglect or refuse to obey any lawful requirement, order, judgment or decree made by the Railroad Commission of Texas, for every such act of violation it shall pay to the state of Texas a penalty of not more than five thousand dollars."

Appellee charged that it was appellant's duty to operate its passenger trains Nos. 9 and 209, commonly called the "Katy Limited," in accordance with said circular, and that upon 80 different occasions, specifically set out, it had failed to do so, praying for penalty against it in the sum of $5,000 for each alleged violation.

Replying, appellant urged a general demurrer; likewise admitted certain facts alleged, and a general denial of others, and pleaded specially that the circular of said Railroad Commission did not apply to it by reason of the fact that it was engaged in interstate commerce, carrying passengers and freight between points in said state and points in Oklahoma, Kansas, Missouri, and other states of the United States and foreign countries, and that as such common carrier was subject to and controlled by the Interstate Commerce Act of February 4, 1887, and amendments thereto, that trains Nos. 9 and 209 are composed of trains made up in St. Louis and Kansas City, Mo., and operated by the Missouri, Kansas & Texas Railway Company to Parsons, Kan., where they were consolidated and operated as one train to Denison, Tex., from which point it was, without change except of engines and crews, operated by defendant under contract with the last-named railroad company as trains Nos. 9 and 209, via Dallas and Ft. Worth to Hillsboro, and thence as one train to Granger, where it separated, one branch going to Galveston, and the other to San Antonio. A corresponding north-bound train, also popularly called the "Katy Limited," and designated by defendant and said railway company as train No. 10, except the part thereof operated between Hillsboro and Denison, via Ft. Worth, which is called train No. 210, has also since said date been daily operated by them to points outside of Texas on the line of the Missouri, Kansas & Texas Railway.

It was likewise alleged and shown that appellant furnished ample accommodation for intrastate traffic independent of said trains Nos. 9 and 209 on and over its line south of Denison, and that, while said trains 9 and 209 stopped and took on and discharged passengers at various points along its line from Denison south, still that about 70 per cent. of the passenger traffic was interstate; that they also published and advertised said trains as being through trains, affording continuous passage from St. Louis and Kansas City to San Antonio and other points in Texas, and as such being engaged in interstate commerce. The material facts of said plea were sustained by the record.

It is contended on the part of appellant that circular No. 18 is not applicable to trains Nos. 9 and 209, for the reason that the same would be a regulation of, a burden upon, and an interference with interstate commerce. It clearly appears that the trains involved in this case were operated between St. Louis and Kansas City, Mo., and San Antonio, Tex., under an agreement between appellant and the Missouri, Kansas & Texas Railway Company, whose lines connected at Red river, five miles north of Denison. These trains were intended to and did accommodate interstate traffic, and, under the agreement and contract between appellant and the Missouri, Kansas & Texas Railway Company, the latter was obligated to deliver the south-bound trains to appellant at Red river, and appellant was obligated to handle them through to destination; and appellant was obligated to deliver the north-bound trains to said company at Red river, and the other was bound to handle them through to St. Louis and Kansas City.

By its proposition under its several assignments appellant insists that a through passenger train, operated by two railway companies under an agreement, between points in different states, is an instrumentality and facility of carriage within the meaning of the act to regulate commerce, the jurisdiction to regulate and control which lies with the Interstate Commerce Commission, and not with the Railroad Commission of Texas. We agree with this contention, and hold that, since it clearly appears from the record that the trains involved in this contention were engaged in interstate commerce at the times in question, the order of the commission was not applicable to them, and sustain appellant's several assignments raising this question. See Interstate Commerce Act, §§ 1 and 15, as amended (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 384 [U. S. Comp. St. 1901, pp. 3154, 3165], as amended by Act June 29, 1906, c. 3591, §§ 1, 4, 34 Stat. 584, 589 [U. S. Comp. St. Supp. 1911, pp. 1284, 1297]); 1 Drinker; Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; B. & O. R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878; Southern Railway Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Southern Railway Company v. Reed & Beam, 222 U. S. 444, 32 Sup. Ct. 145, 56 L. Ed. 263; 2 Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, decided January 6, 1913; C., B. & Q. Ry. Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323, decided January 6, 1913; C., R. I. & P. Ry. Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203, decided January 6, 1913; also, United States v. Union Stock Yards & Transit Co., and Chicago Junction Railway Co. v. United States, 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226, decided January 15, 1913.

Appellant likewise contends by its several propositions that, where a railroad company has already provided ample facilities for the adequate accommodation of the traveling public, such as may be proper and reasonable at any given point, and operates, in addition thereto, through trains for the accommodation of interstate passengers, an act of ...