Missouri & N. A. R. Co. v. State

• Decision Date: 28 June 1909
• Citation: 121 S.W. 930
• Parties: MISSOURI & N. A. R. CO. v. STATE.
• Court: Arkansas Supreme Court

121 S.W. 930

MISSOURI & N. A. R. CO. v. STATE.

Supreme Court of Arkansas.

June 28, 1909.

Appeal from Circuit Court, Boone County; Brice B. Hudgins, Judge.

The Missouri & North Arkansas Railroad Company was convicted of violating a statute requiring the fencing of its right of way, and appeals. Affirmed.

W. B. Smith and J. Merrick Moore, for appellant. Hal L. Norwood, Atty. Gen., and C. A. Cunningham, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

The Missouri & North Arkansas Railroad Company appeals from judgments of the circuit court of Boone county in two cases, assessing penalties against it for alleged violations of a statute enacted by the Legislature in 1905 requiring the St. Louis & North Arkansas Railway Company to fence its right of way in the counties of Carroll, Boone, and Searcy, in this state. The appellant is a railroad corporation, and succeeded to all the rights, franchises, and property of said St. Louis & North Arkansas Railway Company by purchase from a commissioner of the United States Circuit Court in a mortgage foreclosure suit. The statute was enacted in 1905 (Acts 1905, p. 410), but was made to take effect on September 1, 1906, and appellant received its deed of conveyance from the commissioner on June 26, 1906. The first section of the statute reads as follows: "Section 1. That the St. Louis & North Arkansas Railway Company is hereby required to fence its right of way in the counties of Carroll, Boone and Searcy, as hereinafter provided." The second section requires that the fence shall be built on both sides of the roadbed, so as to prevent stock from crossing the track, and specifies how the fence shall be constructed. Section 3 requires the company to make gates at private crossings and stock guards at public crossings, and further provides that the company shall not be required to fence the track in cities or towns or at places where natural barriers render it impossible for stock to go upon the track. Section 4 requires the company to keep the fence and stock guards in good repair, and makes it liable for double damages in case stock is injured or killed on the track when the fence is not in good condition, but provides that, when the fence is kept in good repair, the company shall not be liable for killing or injuring stock. Section 5, which prescribes the penalty, is as follows: "That if said railroad company shall fail, refuse or neglect to comply with the provisions and requirements of this act, it shall be deemed guilty of a misdemeanor, and, upon conviction before any court of competent jurisdiction, be fined not less than fifty dollars nor more than five hundred dollars, and every day said railroad company shall fail to comply with the provisions of this act shall be a separate offense."

1. The statute in question took effect after the appellant became the owner of the line of railroad described therein. It cannot well be contended, and is not contended here, that the statute, if valid, does not apply to appellant as the owner of the railroad. The statute was aimed at the line of railroad described, and not at the particular corporation which owned and operated it. It is in the nature of a police regulation applicable to a certain line of railroad.

2. It is contended that the statute is violative of that part of the fourteenth amendment to the Constitution of the United States which forbids that a state shall "deny to any person within its jurisdiction the equal protection of the laws." Corporations fall within this provision, and are entitled to its protection. It is insisted that the statute singles out one line of railroad, and imposes upon the owner of it the unequal burden of fencing the track when similar burdens are not placed on other railroad companies. Decisions of the Supreme Court of the United States are relied on, holding that states cannot, by arbitrary classification, based upon no difference which bears a reasonable and just relation to the act or business regulated, place burdens upon one class of persons not shared by others. Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; Cotting v. Kansas City Stockyards, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. In the Cotting Case supra, a statute of Kansas was considered which, though general in terms, was found to apply only to a single company engaged in operating stockyards. The statute attempted to regulate the charges of the company, among other regulations, and the court held that the classification was arbitrary and unjust, and denied to that company the equal protection of the laws. In that case the regulation of rates, etc., was found to be such as would have applied to any other company engaged in similar business, and that the classification was not based upon any distinction between the business of that company and that of other companies in the same business. The statute now under...