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

• Decision Date: 10 November 1906
• Citation: 97 S.W. 724
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
• Court: Texas Court of Appeals

97 S.W. 724

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

Court of Civil Appeals of Texas.

November 10, 1906.

On Rehearing, November 24, 1906.

Appeal from District Court, Rains County; R. L. Porter, 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. A. R. Cornelius and Jones & Connor, for the State.

BOOKHOUT, J.

The state of Texas, as plaintiff in the court below, acting by and through the county attorney of Rains county, brought this suit against appellant railway company for penalties in the sum of $2,400 under chapter 133 of the General Laws of the state of Texas, passed by the Twenty-Ninth Legislature, requiring railroads to erect and maintain water-closets at their stations, etc. Appellee alleged, substantially, that appellant operated its railroad through the county of Rains, and that from the 15th day of July, to October 11, 1905, it failed to construct, maintain, and keep in a reasonably clean and sanitary condition, separate water-closets or privies at the stations of Emory and Point in said county; that appellant wholly failed for said time of 12 weeks at each of said stations to comply with the provisions of said statute in any manner, and became liable for penalties of $100 for each week, making $2,400 sued for, and that, if appellant attempted any compliance with said statute at Point station at all, the same was not kept in a sanitary condition and not properly designated or marked for use of women and men, and was kept under lock and key, and passengers could not conveniently use same because they had to apply to agent for a key, etc. The defendant answered by general and special exceptions and a general denial. The general and special exceptions were overruled, to which ruling defendant excepted. The cause came on for trial on December 20, 1905, and at the close of the evidence the court instructed a verdict for plaintiff for $2,400. Verdict was returned accordingly, upon which judgment was duly entered. The defendant perfected an appeal. This appeal brings before us for our decision the question of the validity and constitutionality of chapter 133, p. 324, Gen. Laws 29th Leg., approved April 17, 1905. See Gen. Laws Reg. Sess. 1905, p. 324.

The first five assignments of error raise the same objections to the statute as were passed upon in the case of Missouri, Kansas & Texas Railway Company of Texas v. State, 97 S. W. 720, from Wood county, in an opinion delivered by this court October 20, 1906. The decision is not yet officially published. We there held the act constitutional, and not void for uncertainty, and not repugnant to the fourteenth amendment to the Constitution of the United States. We adhere to that ruling.

The petition alleged, and the proof showed, a violation of the statute by appellant in its failure to erect and maintain separate water-closets for male and female passengers at the passenger stations of Emory and Point, in Rains county, for 12 weeks. The court instructed a verdict for plaintiff for $2,400. By this instruction the plaintiff recovered a penalty of $100 for 12 weeks for a violation of the statute at each of the passenger stations named. Appellant contends that, the statute not having expressly prescribed the penalty for a failure to comply with its provisions at each and every station in the county, and the failure of the appellant to comply with it at each of the stations of Point and Emory being, as alleged in the petition, concurrent in point of time, but one penalty per week for 12 weeks, or only $1,200 in the aggregate, was recoverable. The petition alleged, and the proof showed, a violation of the statute at Point and Emory from the 15th of July, 1905, to the 11th of October, 1905. The statute provides that "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 or neglects." It is clear that a failure and neglect to comply with the provisions of law at a given station will give rise to and authorize the recovery of the penalty. Does it follow that for such failure or neglect at any number of passenger stations in the county at one and the same time as many penalties for each week accrue as there are stations at which such failure and neglect occurs? The statute is penal in its character and is to be strictly construed. The object of the act is to require railroad and railway corporations operating a line of railway in this state for the transportation of passengers to erect and maintain separate water-closets for male and female persons at its passenger stations. Sections 1 and 2 of the act make provision for the erection of the closets and impose upon the railway corporation certain duties in reference to their maintenance. The statute provides for the penalty for each week the railway corporation fails and neglects to comply with its provisions. It does not expressly provide that the penalty shall be imposed for a violation at each and every station, but for each week the corporation fails and neglects to comply with the law. To enforce the penalty for each week the corporation fails to comply with the act at each and every station, we would have to say that such was clearly the intention of the Legislature. The statute does not so read, and we do not feel justified in so holding. The courts will duly enforce such penalties as are clearly within the...