Pittsburgh, C., C. & St. L. Ry. Co. v. State

• Decision Date: 03 June 1913
• Docket Number: No. 22,248.,22,248.
• Citation: 180 Ind. 245,102 N.E. 25
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. STATE.

180 Ind. 245

102 N.E. 25

PITTSBURGH, C., C. & ST. L. RY. CO.

v.STATE.

No. 22,248.

Supreme Court of Indiana.

June 3, 1913.

Appeal from Criminal Court, Marion County; Joseph T. Markley, Judge.

The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company was convicted of a violation of law by the use of a caboose not permitted by Acts 1911, c. 60, and it appeals. Affirmed.Samuel O. Piskens and Owen Piskens, both of Indianapolis, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Deputy Atty. Gen., for the State.

MYERS, J.

Appellant was charged by affidavit with the violation of sections 1, 2, and 3 of the act of March 1, 1911 (Acts 1911, p. 92). Section 1 applies the provisions of the act to any corporation, person, or persons “while engaged as common carriers in the transportation *** of passengers or property within this state to which the regulative powers of this state extend.” Section 2 prescribes the kind of caboose which shall be used after June 1, 1914; and section 3 provides that: “Whenever any such caboose cars or other cars now in use by such common carriers as provided by section 1 herein shall after this act goes into effect, be brought into any shop for general repairs, it shall be unlawful to again put the same into the service of such common carrier within this state unless it be equipped as provided in section 2 of this act.” Other following sections define the exceptions, the powers, and duties of the Railroad Commission in respect to the matter, and provide the penalty.

The charge in the affidavit, in substance, is that on and prior to July 5, 1911, appellant owned and had in use on its line as a corporation and common carrier a certain numbered caboose car, resting on four wheels, and 18 feet and 6 inches in length, exclusive of the platforms on each end, on which date it was sent to the shops of appellant in the state of Indiana for general repairs, and after having been repaired was on August 22, 1911, owned by and put into service on appellant's lines in the state of Indiana, and continuously thereafter used in such service, and was not as so used at least 24 feet in length, exclusive of the platforms, and was not equipped with two four-wheeled trucks. All exceptions of the statute are negatived.

There was a motion in writing to quash for several reasons, all attacking the constitutionality of the act, and various sections of it on various grounds, which motion was overruled and exception to the ruling reserved. Appellant then filed a special plea that the facts alleged do not constitute a public offense, and alleging like other facts to those alleged in the motion to quash. A demurrer to this plea for want of facts to constitute a defense was sustained, and appellant accepted, and upon a plea of not guilty appellant was tried and found guilty and a fine of $100 imposed, and over motion for a new trial on the grounds that the finding is contrary to law, and not sustained by sufficient evidence, and over motion in arrest of judgment for the reasons set out in the special plea, judgment was entered.

As the validity of the law is the sole questionpresented, it is not necessary to consider any other question, except to say that the admissions and evidence show appellant to be a common carrier engaged in interstate commerce, and that the value of the particular car when it went into the shops was $380, and when repaired $442, and that the salvage in making the caboose correspond to the act of 1911 would be $185; that appellant has 251 like cars like employed as the car in question, and that like cars have been in use by appellant 15 years, and that it would now cost approximately $1,150 each to construct the cars to conform to the requirements of the act of 1911, with a salvage of $185; that the timber in the present car would be valueless, and only the iron portions and the cupola usable; that 50 of the cars in use cost approximately, when built, $470, and the remainder $875 each, and the average cost when new was $666 and the average value now $442; that compliance with the act of 1911 would not add to the safety or comfort or health of the trainmen; that they have as much ventilation as a car required by the act; that the only difference from the present cars would be in the length and the additional set of trucks, and the car would not be as strong as the cars at present constructed and in use, and that as now constructed they are stronger than the 60,000 pound capacity freight cars. There was no objection to or contradiction or rebuttal of this evidence.

[1] We have stated the matter fully in order to present appellant's position fairly, and the question is, Does the evidence overcome the presumption, or is evidence admissible to controvert the presumption? It is the contention of appellant that the act is in violation of section 8 of article 1 of the federal Constitution as a regulation of commerce “among the states.” It is contended by the state that the act will be construed as applying only to operations in the state, and does not purport to be a regulation of interstate commerce, and that as a police power, which may effect interstate commerce incidentally, is supreme until and unless the particular subject is taken cognizance of by Congress, and that the character of caboose as to length and wheel base has not been the subject of federal concern. If the subject of the length and wheel base of caboose cars has been taken cognizance of, and the length and wheel base fixed, we should be bound to recognize the sole jurisdiction of the subject as in Congress, even though the car was at the time engaged in intrastate traffic, but in conjunction with interstate traffic or commerce. Southern Ry. Co. v. Railroad Commission, 100 N. E. 337, and cases cited.

The acts of Congress and the Interstate Commerce Commission have not embraced the specific subject either of length of caboose cars or their wheel bases, and we regard the act of the state as not an interference with, or as placing a burden upon, or as regulating, interstate commerce, even though the right of control extends to all the instruments of such commerce (Hall v. De Cuir, 95 U. S. 497, 24 L. Ed. 547), for the reason that this act does not lay any restrictions on commerce itself, or the objects of commerce, nor on an instrumentality of commerce by the manner of construction or the manner of its use, but is directed at the form of the instrumentality as to a matter as to which Congress has not seen fit to act. We are unable to perceive how it might affect it even incidentally and is not such legislation as is superseded by the federal laws. Pittsburgh, etc., Co. v. State, 172 Ind. 147, 166, 167, 87 N. E. 1034 and cases cited; Pittsburgh, etc., Co. v. State, 99 N. E. 801;Chicago, etc., Ry. Co. v. Arkansas, 219 U. S. 453, 465, 31 Sup. Ct. 275, 55 L. Ed. 290;New York, etc., Ry. Co. v. New York, 165 U. S. 628, 632, 17 Sup. Ct. 418, 41 L. Ed. 853;Smith v. Alabama, 124 U. S. 465, 480, 8 Sup. Ct. 564, 31 L. Ed. 508.

The serious question is the attack made upon the act as being in violation of the due process of law clause of the federal and state Constitutions on the ground of its being unreasonable and resulting in the destruction of a large amount of property, which would be in effect taken and actually destroyed without just reason and without any good purpose to be subserved in the public interest under the guise of being a police regulation. In answer to this the state contends that a police regulation is not a denial of due process of law. Pittsburgh, etc., Ry. Co. v. State, 99 N. E. 801;Pittsburgh, etc., Ry. Co. v. State, 172 Ind. 147, 162-163, 87 N. E. 1034;Chicago, etc., Ry. Co. v. Arkansas, 219 U. S. 453, 465-466, 31 Sup. Ct. 275, 55 L. Ed. 290;New York, etc., Ry. Co. v. New York, 165 U. S. 628, 632, 17 Sup. Ct. 418, 41 L. Ed. 853. Also that the state Constitution applies only to the taking of specific property by virtue of the right of eminent domain. Hanly v. Sims, 175 Ind. 353, 93 N. E. 228, 94 N. E. 401;State v. Richcreek, 167 Ind. 217, 223, 77 N. E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 Ann. Cas. 899;Levy v. State, 161 Ind. 251, 256, 68 N. E. 172;Parks v. State, 159 Ind. 211, 220, 64 N. E. 862, 59 L. R. A. 190.

[2] The police power is of very wide scope, and the extent to which it may go has not and cannot be defined, and its application in a proper case is not inimical to the federal Constitution, but it must also be recognized that property or property rights may not be destroyed under the guise of the police power or so-called police regulation unless it appears that it has or can have no just relation to the protection of the public health, welfare, morals, or safety. Unless this negation affirmatively appears by the act or its history in enactment, the police power extends even to the taking and destruction of property, without being an infringement upon the due process of law clauses of either Constitution, even though compliance with the specific act shall require a large expenditure of money, and it will be presumed that the act is reasonable, unless the contrary appears from the facts of which the courts will take notice. State v. Barrett, 172 Ind. 169, 87 N. E. 7; State v. Richcreek, supra, and cases cited.

[3] Regulation is the normal form of operation of the police power, and it operates on the relation which the property or rights...