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

• Decision Date: 20 October 1906
• Citation: 97 S.W. 720
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
• Court: Texas Court of Appeals

97 S.W. 720

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

Court of Civil Appeals of Texas.

October 20, 1906.

On Rehearing, November 24, 1906.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Action by the state against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of the state, defendant appeals. Modified.

T. S. Miller and Perkins & Craddock, for appellant. E. A. Tharp and Howell V. Nabors, for the State.

BOOKHOUT, J.

Appellee, as plaintiff in the court below, acting through the county attorney of Wood county, brought this suit against the appellant for penalties in the sum of $1,800, under chapter 133, p. 324, Gen. Laws 29th Leg., approved April 17, 1905, requiring railroad companies to erect and maintain water-closets at their stations, etc. It was alleged that appellant owned and operated lines of railroad through Wood county, and maintained passenger stations and depots in said Wood county at Winnsboro, East Winnsboro, Alba, and Golden. The appellant answered by general demurrer, a number of special exceptions, and a general denial. The court overruled the appellant's general demurrer and all of its special exceptions, to which ruling the appellant duly excepted. There was a trial before the court, resulting in a judgment in favor of the appellee against appellant for $1,800. Defendant prosecutes an appeal.

The statute which is the basis of the suit, and the validity of which is here challenged, with its caption, reads:

"An act to compel railroad and railway corporations to erect and maintain water closets or privies at passenger stations, to regulate the same, to fix the penalties and authorize suits therefor, with an emergency clause.

"Be it enacted by the Legislature of the state of Texas:

"Section 1. That each railroad and railway corporation operating a line of railway in the state of Texas for the transportation of passengers thereon, shall hereafter be required to construct, maintain and keep in a reasonably clean and sanitary condition, suitable and separate water closets or privies for both male and female persons at each passenger station on its line of railway, either within its passenger depot or in connection therewith, or within a reasonable and convenient distance therefrom at such station, for the accomodation of its passengers who are received and discharged from its cars thereat, and of its patrons and employés who have business with such railroads and corporations at such stations.

"Sec. 2. That said railroads and corporations are hereby required to keep said water closets and depot grounds adjacent thereto well lighted at such hours, in the nighttime, as its passengers and patrons at such stations may have occasion to be at the same, either for the purpose of taking passage on its trains or waiting for the arrival thereof, or after leaving the same and for at least one hour both before the schedule time for the arrival of its said trains and after the arrival thereof at said station; provided, that said railroads and corporations shall not be required by the provisions hereof to keep said closets lighted at such stations where the said railroads do not receive and discharge thereat, in the nighttime passengers on and from its cars.

"Sec. 3. Any railroad or railway corporation which fails, neglects or refuses to comply with the provisions of this act shall forfeit and pay to the state of Texas the sum of one hundred dollars for each week it so fails and neglects. The county attorney of the county in which such station is located, and in case there is no such county attorney then the attorney for the district including said county, shall upon credible information furnished him, institute suit or suits in the name of the state of Texas against such defaulting railroad or railway corporation for recovery of said penalty, and in case of said recovery the said attorney shall be entitled to one-fourth the amount thereof as commission for his said services, and the remainder thereof shall be paid into the road and bridge fund of said county; provided, that the state of Texas shall in no event be liable for any costs in suits authorized to be brought by this act to enforce its provisions."

Is this statute too vague, indefinite, and uncertain in its provisions to entitle the state to recover the penalties sued for? If so, it is inoperative and void. If its provisions are so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, it will be held inoperative. The statute is penal in its provisions, and, this being so, it is to be strictly construed.

The contention is made that the statute does not "definitely prescribe what kind of a closet shall be considered `suitable,' nor does it define the term `in connection with the depot,' nor does it prescribe what shall be considered `within a reasonable and convenient distance from the depot,' nor is it stated what shall be considered `separate closets.'" The terms, "clean," "suitable," and "sanitary" are frequently used in ordinances and laws defining certain nuisances. They are usually held to be terms of such certain meaning and so generally understood that they can be safely submitted to a jury on an issue of fact. In the case of Louisville & Nashville Railroad Co. v. Commonwealth (Ky.) 45 S. W. 880, the Court of Appeals of Kentucky had before it the sufficiency of an act of that state to sustain a conviction, providing: "That every company operating a railroad in this state shall provide a convenient and suitable waiting room and water closet at all cities and towns, and at such other stations as the railroad commission may require on its line, and keep and maintain the same in decent order and repair." The statute was held valid. In the opinion the court say: "Whether a water-closet has been provided and maintained, as also whether, if so, it is convenient and suitable, are questions of fact it is the province of the jury to determine, and it was not, as contended, error to submit the inquiry to the jury, as was done in this case." Again, in the case of Railway v. Commonwealth, 46 S. W. 697, the same learned court, in passing upon the same statute, makes use of the following language: "What is a suitable and convenient waiting room and water-closet is a question about which there ordinarily can be no serious difference of opinion between persons of that class usually selected as jurymen. It is a question of fact dependent upon the size of the city, town, or station where the railroad train stops, and the number of passengers arriving at and departing therefrom." The statute of Kentucky is quite similar to the act above set out, and the reasoning of the Court of Appeals of Kentucky is applicable, and we think fully answers the appellant's contention. What is a clean, suitable water-closet is a question of fact about which there can be no serious difference of opinion among jurymen; nor can they differ in what constitutes separate water-closets for male and female persons. It was also a fact for the jury to...