Pennsylvania Co. v. The State

• Decision Date: 01 November 1895
• Docket Number: 16,920
• Citation: 41 N.E. 937,142 Ind. 428
• Parties: The Pennsylvania Co. v. The State
• Court: Indiana Supreme Court

41 N.E. 937

142 Ind. 428

The Pennsylvania Co. v. The State

No. 16,920

Supreme Court of Indiana

November 1, 1895

From the Scott Circuit Court.

The judgment is affirmed.

S Stansifer, B. K. Elliott and W. F. Elliott, for appellant.

W. A Ketcham, Attorney-General, for State.

OPINION

Hackney, J.

This was an action by the appellee for the recovery of penalties for the violation of the act of March 9, 1889, R. S. 1894 sections 5186, 5187; Elliott Supp., sections 1088, 1089. The complaint was in seventy-three paragraphs, and each charged a distinct violation of said act, in the failure of the appellant to note, upon a blackboard, at least twenty minutes before the schedule time of the arrival of passenger trains, the fact as to whether such trains were on schedule time, and if late, how much. The paragraphs apply to different trains, and different days, including trains stopping at Scottsburg, from May 10, 1889, to May 19, 1889. The complaint was filed on the 9th day of May, 1891, and summons was issued thereon, June 4, 1891. Demurrers were overruled to the several paragraphs of complaint, and the appellant answered in five paragraphs to the four affirmative paragraphs, to which demurrers were sustained. Upon a trial there was a finding and judgment in favor of the appellee for $ 1,400.00. Questions of the constitutionality of said act bring the appeal within the jurisdiction of this court.

The second paragraph of answer alleged that on May 10, 1889, when the act took effect, the appellant was operating 220 miles of railway, having fifty passenger stations, with depots and telegraph offices, and that when the statute took effect, the appellant, "exercising due care and reasonable expedition, proceeded to and did prepare blackboards, three feet long and two feet wide, and placed one in a conspicuous place in each of said passenger stations, including the one mentioned in the complaint, all of which was done by May 18, 1889, and it is averred that the work could not have been done within a shorter period of time." The third paragraph pleaded substantially the same facts with the conclusion, "that it reasonably and conveniently required, to-wit: seven days within which to prepare and place said blackboards as aforesaid."

The fourth paragraph alleged the placing of blackboards in the depots mentioned in the complaint by May 18, 1889; that summons did not issue until June 11, 1891, and that the action was commenced more than two years after each of the causes of action sued on had accrued.

The fifth paragraph was substantially the same as the fourth.

As will be observed, the second and third paragraphs proceeded upon the theory that after the law was distributed and had, by the proclamation of the governor, gone into effect, the companies affected by it would have a reasonable time in which to prepare and place blackboards upon which to note the time of arrival of trains, and that such reasonable time, as alleged in the third paragraph, was seven days. In discussing the sufficiency of the complaint, the proposition is also pressed that companies were entitled to a reasonable time, after the law was declared in force, within which to prepare for compliance with its requirements.

The language of the act, as to the time when compliance shall begin is: "Immediately after [the] taking effect of this act." If there had been an emergency clause, under which penalties would, by the letter of the law, have attached at once upon its passage, manifestly, it would have worked great hardship to hold that the Legislature meant to inflict heavy penalties for failing to do that which necessarily required time for preparation to do. Probably, the situation thus stated would have required the holding that the word "immediately" was not employed to exclude the intervention of a reasonable time within which to prepare and place the boards required. So we may say, with reference to the time when the law went into force, May 10, 1889, if that were the first notice that railway companies were required to take of the law. As we find it, the law was approved March 9, 1889, and was proclaimed in force May 10, 1889, more than sixty days, and, upon the allegations of the answers, an abundant time within which to prepare for compliance with the law, and for the avoidance of the prescribed penalties.

The law, having passed without an emergency clause, was not in force until May 10, 1889; however, its passage by the Legislature, and the declaration of the constitution, that it should be in force from its distribution, and the proclamation of the governor, was notice to railway companies sufficient to enable them to prepare for its requirements, we have no doubt. It is one of the frequently declared objects of section 4, article 19, of the State constitution, requiring that the subject of an act "shall be expressed in the title," "to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have an opportunity of being heard thereon, by petition or otherwise, if they shall so desire." Cooley Const. Lim. (6 ed.), p. 171; Henderson, Aud., v. London, etc., Ins. Co., 135 Ind. 23 (20 L.R.A. 827, 34 N.E. 565).

There was the same emergency for the existence of the law between March 9th, and May 10th, 1889, as that following those periods, and the omission of an emergency clause was, probably, to enable companies to prepare to comply with the law when it should be declared that penalties were enforcible. It is not claimed that the Legislature possessed no power to enact that penalties should attach at once upon the passage of the law, or upon the declaration that it had been published. The contention, as we understand it, is that the Legislature will not be deemed to have intended so harsh a measure. The question being one of intention and not of power, and the word "immediately" ordinarily signifying "without interval of time," we must conclude that the Legislature omitted the emergency clause, and provided that compliance should follow "immediately after (the) taking effect of" the act, thereby intended to give to railway companies the period extending from the passage of the act to the proclamation of the governor, in which to prepare for compliance without penalties. Aside from the question of legislative intent to give such opportunity, and also of the constructive or implied notice of the passage of the act, and presuming that power existed to enforce penalties "without interval of time" for preparation, it then becomes a question of legislative judgment not reviewable by the courts, and a question of the good faith of railway companies in possibly possessing actual knowledge of the law, but delaying beyond the period for its enforcement without steps to meet its requirements, a question not made by the answers and not subject to review.

The sufficiency of the fourth and fifth answer depends upon sections 294 and 305, R. S. 1894 (sections 293 and 304, R. S. 1881). The first provides that "For * * * a forfeiture or penalty given by statute," actions shall be commenced within two years after the cause of action has accrued. The appellant, standing upon this provision, insists that the penalties sued for accrued before May 19, 1889; that while the complaint was filed on the 9th day of May, 1891, summons was not issued and the suit not commenced, in contemplation of law, until, as the answer alleges, the 11th day of June, 1891. To this proposition is cited section 316, R. S. 1894, (section 314, R. S. 1881), which provides that "A civil action shall be commenced by filing in the office of the clerk a complaint and causing a summons to issue thereon; and the action shall be deemed to be commenced from the time of issuing the summons." In view of section 305, supra, we need make no decision of the force of the appellant's position thus stated, since that section provides that "Limitations of actions shall not bar the State of Indiana, except as to sureties." Very plainly, we think, the limitation insisted upon by the appellant does not apply where the cause of action, as in this case, is in favor of the State of Indiana.

Invoking the rule of a strict construction for penal statutes, appellant's learned counsel, with much ability, attack the act in question as void for ambiguity. The first duty of the courts, in the construction of statutes, is to ascertain the intention of the Legislature in the enactments, whether such statutes fall within the rule calling for a strict or that calling for a liberal interpretation. All of the alleged ambiguities of the act in question must be tested in the light of the legislative intention, ascertained from within the lines of the act. There is no guide to the ascertainment of legislative intention by which, in every case, the interpreters may be led, with unerring certainty, to the one conclusion, yet it is the manifest policy of the law that interpretation of a given act shall not be so varying and unstable as to yield, like the kaleidoscope, a new view as each new hand turns the instrument. While the act is not drawn with the care and skill that its importance to the public and to railway management should have required, we feel that its meaning having been considered and determined by our predecessors, a bench justly distinguished for its learning and ability, we cannot review that decision, upon the very questions then made, though, if a question of first impression, some of us might incline to a different view. See State v. Indiana, etc., R. R. Co., 133 Ind. 69 (18 L.R.A. 502, 32 N.E. 817); State v. Pennsylvania Co., 133 Ind. 700, 32 N.E. 822.

All that we have said with relation to ...