Neubert v. Chicago, R. I. & G. Ry. Co.

• Decision Date: 22 June 1927
• Docket Number: (No. 3955.)
• Citation: 296 S.W. 1090
• Parties: NEUBERT v. CHICAGO, R. I. & G. RY. CO.
• Court: Texas Supreme Court

296 S.W. 1090

NEUBERT v. CHICAGO, R. I. & G. RY. CO.

(No. 3955.)

Supreme Court of Texas.

June 22, 1927.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by William C. Neubert against the Chicago, Rock Island & Gulf Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff brings error. Affirmed.

R. E. Stalcup, of Dalhart, for plaintiff in error.

Tatum & Strong, of Dalhart, for defendant in error.

CURETON, C. J.

Plaintiff in error, in his application for writ of error, stated the case as follows:

"Petitioner further shows that this is a suit which originated in the district court of Dallam county, Tex., wherein the plaintiff in error sought to recover from defendant in error the sum of $4.33, being the amount paid by plaintiff in error to the defendant in error for a railway ticket, which was duly presented by plaintiff in error to defendant in error, for redemption and which defendant in error refused to redeem. Suit was for the amount paid for the ticket, together with the sum of $500 as statutory penalty, provided in articles 1527, 1528, and 1529, Penal Code of the state of Texas, 1911."

To this we will add that the ticket was an interstate ticket, purchased at Dalhart, Tex., for transportation from Dalhart, Tex., to Tucumcari, N. M. The only question involved in this court, under the single assignment of error in the application, is whether or not articles 1527, 1528, and 1529 of the Penal Code (1911) are applicable, and, if so, whether or not valid.

Articles 1527 and 1529 read as follows:

Article 1527: "It shall be the duty of all railroad companies in this state, or the receiver or trustee of any such railroad company, to provide for the redemption, from the holder thereof, of the whole, or any parts or coupons of any ticket or tickets which they, or any of their duly authorized agents, may have sold, if for any reason the holder has not used, and does not desire to use the same, upon the following terms: If neither the ticket, nor any part thereof, has been used by the holder, he shall be entitled to receive the full amount he paid therefor; and, where the ticket has been used in part, the holder thereof shall be entitled to receive the remainder of the price paid for the whole ticket, after deducting therefrom the tariff rate between the points for which the portion of said ticket was actually used."

Article 1529: "Any railroad company, or receiver, or trustee of such railroad company, over or on which said ticket may be used, which shall refuse or fail to redeem the whole, or any part or coupon of any ticket or tickets, when presented, shall forfeit to the holder thereof a sum not less than one hundred dollars nor more than five hundred dollars, recoverable in any court of competent jurisdiction."

Article 1528 relates to the time in which the unused ticket must be presented for redemption, and is not here involved, except as related to the statutes quoted.

The suit was for the price of the ticket and the penalty, as provided for in the two articles of the Code copied above. These articles do not in express terms extend to interstate commerce, and we do not believe they were ever intended to cover tickets purchased for other than intrastate transportation; or, if they were intended to have that application, they are now no longer to be applied to interstate commerce, for the reason that Congress, under its constitutional power to regulate commerce, has by its statutes, and through the agency of the Interstate Commerce Commission, occupied the field. The Interstate Commerce Act, of course, applies to both passenger and freight transportation. Roberts, Federal Liability Carriers, § 235.

Section 4 of article 7884, Barnes' Federal Code 1919-1924 Cumulative Supplement (U. S. Comp. St. § 8563), being the Act to regulate commerce, in part provides:

"It shall be the duty of every common carrier subject to this act engaged in the transportation of passengers or property to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates, fares, and charges applicable thereto. * * *"

Section 5 declares that all charges for services rendered, or to be rendered, in the transportation of passengers or property, or in connection therewith, "shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful."

This provision appears in various forms in a number of sections of the act, and is, of course, familiar to all.

Article 7885 (Barnes' Code, supra [U. S. Comp. St. § 8564]) provides that, if any carrier shall directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person, or persons, a greater or less compensation for any service to be rendered in the transportation of passengers or property, etc., it shall be guilty of unjust discrimination, which is prohibited.

Article 7890 (U. S. Comp. St. § 8569) by its terms requires every carrier to file with the Interstate Commerce Commission, and print and keep open to public inspection, schedules showing all rates, fares, and charges for transportation.

Section 3 of this article prohibits any change in the rates, fares, and charges filed and published in compliance with the requirements above named, except on notice to the Interstate Commerce Commission. In this connection the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, and charges.

Section 7 of this article prohibits a carrier from engaging in the transportation of passengers or property, unless the previous requirements as to filing and publication of rates and fares and charges have been complied with. This section expressly prohibits a carrier from making any "refund" to any shipper or person, "except such as are specified in such tariffs." (Italics ours.)

Section 10 of this article prescribes a penalty for a violation of any of its terms, including those to which we have referred.

Section 4 of article 7902 (U. S. Comp. St. § 8581) in part provides that whenever the Interstate Commerce Commission, upon investigation after a full hearing, finds that any rate, fare, charge, classification, regulation, or practice, causes any undue or unreasonable charge, preference, or prejudice as between persons or localities in intrastate commerce on the one hand, or interstate or foreign commerce on the other, or causes any undue unreasonable, or unjust discrimination against interstate commerce, then it shall be the duty of the Commission to prescribe the rate, fare, or charge thereafter to be charged, and "the classification, regulation, or practice thereafter to be observed."

Section 3 of this article authorizes the commission, when it deems it necessary or desirable, after hearing, to establish upon its own initiative, without complaint, through routes, joint rates, etc., applicable to the transportation of passengers or property.

We think it plainly appears from those sections and articles of the federal statutes quoted, as well as from many other provisions which space does not permit us to directly refer to, that the whole subject-matter of prescribing rates and fares for interstate passenger transportation, and rules, regulations, and practice with reference thereto, has been confided to the Interstate Commerce Commission. It is difficult to see how language having that general purpose could be more explicit than that contained in some of the sections referred to.

A provision for the redemption of an unused railroad ticket, or partially unused ticket, is necessarily either a part of the contract between the carrier and the passenger, or because of the existence of a valid law to that effect is read into the contract. The Interstate Commerce Act plainly authorizes the railroad companies either to fix their own fares for transportation, including the terms of the contract, together with the rules and regulations governing such contract, and to file and publish them, or requires the carrier to file and publish such fares, rules, and regulations and terms of the contract as may be prescribed by the Interstate Commerce Commission.

It is perfectly plain from the federal statutes that a railroad company, in preparing its fare or rate structure, would have the authority to declare that it would redeem unused passenger tickets, or partially used tickets. It is equally clear that such an inclusion in its tariffs is just as much within its power and authority as is the basic requirement of the statute that it shall prepare the schedule of rates and fares, rules, and regulations, and file and publish them. It is...