Patterson v. The Missouri Pacific Railway Company

• Decision Date: 08 February 1908
• Docket Number: 15,173
• Citation: 94 P. 138,77 Kan. 236
• Parties: W. M. PATTERSON v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

94 P. 138

77 Kan. 236

W. M. PATTERSON v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 15,173

Supreme Court of Kansas

February 8, 1908

Decided January, 1908.

Error from Woodson district court; OSCAR FOUST, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Judicial Notice--Location of a Railroad. The courts will take judicial notice of the route of a railroad which has been built and operated for a number of years from one station to another within the state of Kansas and that, for a great portion of the distance between such stations, such route is beyond the boundaries of this state and within another state.

2. RAILROADS--Interstate Commerce. A railroad company in conveying freight over such route between such stations is engaged in interstate commerce.

3. CONSTITUTIONAL LAW--Police Regulations--Interstate Commerce. While the state has the power to make reasonable police regulations affecting the operation of railroads operating within the state and also engaged in interstate commerce, the regulations should be such only as tend to the efficient and orderly discharge of the duties of the railroads to their patrons within the state, and to the safe-guarding of persons and property therein, and impose no considerable burden upon the interstate commerce.

4. RAILROADS--Penalty for Failure to Furnish Freight-cars--Valid Statute. The provision of chapter 345 of the Laws of 1905 which imposes a penalty of one dollar per day upon each car for delay in furnishing freight-cars ordered, and permits no excuse therefor except "strikes, unavoidable accidents, or other public calamity," is not invalid, but is a reasonable police regulation and imposes no considerable burden upon interstate commerce.

J. C. Culver, and Carr W. Taylor, for plaintiff in error.

J. H. Richards, and C. E. Benton, for defendant in error; Lamb & Hogueland, of counsel.

OPINION

SMITH, J.:

W. M. Patterson filed his petition in the district court of Woodson county, claiming damages against the defendant railway company in the sum of $ 6336 for failure to deliver freight-cars as ordered by him, under the provisions of chapter 345 of the Laws of 1905. The defendant filed a general demurrer to the petition and to each of the eleven counts thereof, which demurrer was by the court sustained. The plaintiff elected to stand upon his petition, and the action was dismissed at his cost. The case is brought here for a review of this order and judgment.

The demurrer was sustained to an amended petition, which had been filed in compliance with an order of court requiring the original petition to be made more definite and certain, and we are asked to review this order. The legality of making it has become only a moot question, which will not be considered here.

Each of the eleven counts of the petition is based upon an order for cars, differing only in date. The following is a copy of the first order:

"ROSE, KAN., November 3, 1905.

"Mr. V. G. Madison, Rose, Kan.:

DEAR SIR--Please set on your side-track at once at Rose, Kan., nine (9) cars suitable for loading with hay to be shipped to Kansas City, Kan.

"I herewith hand you $ 90 to apply on freight for above cars. Yours truly, W. M. PATTERSON."

The portions of chapter 345 of the Laws of 1905 which pertain to the questions here involved read:

"SEC. 2. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation of any railroad company, receiver or trustee operating a line of railway, at any point that cars are desired upon which to ship any freight, it shall be the duty of such railroad company, trustee or other person in charge thereof to supply the number of cars so required at the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the person or persons so applying therefor in the order in which such applications are made, without giving preference to any person; provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided further, that if the application be for thirty cars or more, the railway company may have ten full days in which to supply the cars.

"SEC. 3. Said application for cars shall state the number of cars desired, the place at which they are desired, and the time they are desired; provided, that the place designated shall be at some station or public switch on the line of its road.

SEC. 4. When the cars are applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of one dollar per day for each car failed to be furnished, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain.

"SEC. 5. Such applicant shall at the time of applying for such car or cars deposit with the agent of the company one-fourth of the freight charge for use of such car or cars, unless the said railroad company shall agree to deliver said car or cars without such deposit."

Section 10 provides that "the provisions of this law shall not apply in cases of strikes, unavoidable accidents, or other public calamity."

The first contention of the defendant--that the orders were not addressed to any superintendent, agent or any other person in charge of transportation of the defendant company--is untenable on demurrer. The petition alleges that the applications were made to the company and the company's agent, and the copies of the applications, made a part of the petition, show that they were addressed to Mr. V. G. Madison, Rose, Kan. This is a sufficient allegation; as against a demurrer, that V. G. Madison was the agent of the company.

We also consider that the application for the cars "at once" was sufficient to locate the time they were desired. The statute prescribes the number of days which the lawmakers regarded as a reasonable time for compliance after the time set by the shipper. Hence the term "at once" may be regarded as equivalent to "immediately," or "to-day," which, the order being for nine cars, the statute extends to three days before any penalty may be imposed.

It is next contended that the line of the defendant's railroad over which the shipments were to be made from Rose, Kan., to Kansas City, Kan., extends easterly from Rose to the eastern line of the state, and thence for a long distance through the state of Missouri, and returns into this state at Kansas City, Kan.; also, that the courts of this state take judicial notice of these facts. So far, at least, this contention is correct. (17 A. & E. Encycl. of L. 944; 16 Cyc. 861; S. K. Rly. Co. v. Duncan, 40 Kan. 503, 505, 20 P. 195; Peddicord v. Berk, 74 Kan. 236, 86 P. 465; Worden v. Cole, 74 Kan. 226, 86 P. 464.)

In view of these facts it is said that the carrying of the freight contemplated is interstate commerce, and that the statute in question, which imposes heavy penalties and allows no excuse for its infraction except "in cases of strikes unavoidable accidents, or other public calamity" (Laws 1905, ch. 345, § 10), is a burden upon such commerce, and invalid; that it is in derogation of the powers conferred upon congress by section 8 of article 1 of the constitution of the United States. On the other hand, it is claimed that the statute in question is within the police power of the state, and that the provisions thereof cast no unreasonable burden upon interstate commerce; that in fact...