Railway Company v. Gill

• Decision Date: 03 January 1891
• Citation: 15 S.W. 18,54 Ark. 101
• Parties: RAILWAY COMPANY v. GILL
• Court: Arkansas Supreme Court

15 S.W. 18

54 Ark. 101

RAILWAY COMPANY v. GILL

Supreme Court of Arkansas

January 3, 1891

APPEAL from Washington Circuit Court, J. M PITTMAN, Judge.

John B Gill filed a complaint against the St. Louis and San Francisco Railway Company, alleging in five separate counts that, on five several occasions, defendant, operating a railroad in the State more than seventy-five miles long, had charged him five cents per mile, being in excess of the maximum charge allowed by the statute. Defendant filed an answer in eleven paragraphs. The first paragraph denied the facts alleged. A demurrer to the other ten paragraphs of the answer was sustained. Their substance is stated in the opinion. There was a trial upon the issue raised by the first paragraph of the answer. The court found for plaintiff upon each count of the complaint, awarded judgment for $ 375, and allowed an attorney's fee of $ 50. Defendant appealed.

The act referred to in the complaint is as follows:

"Be it enacted by the General Assembly of the State of Arkansas:

"SECTION 1. That the maximum sum which any corporation, officer of court, trustee, person or association of persons, operating a line of railroad in this State, shall be authorized to charge and collect for carrying each passenger over such line within this State, in the manner known as first-class passage, is hereby fixed at the following named rates:

"On line of railroad fifteen miles or less in length, eight cents per mile. On lines over fifteen miles in length, and less than seventy-five miles in length, five cents.

"On lines over seventy-five miles in length, three cents per mile. And for carrying children in charge of an adult, there may be charged and collected one-half of the above-named rates for such of said children as may be under the age of twelve years and over the age of five years; and for such of said children as may be under the age of five years no charge whatever shall be made beyond what is collected from the adult or adults who may have charge of them; Provided, That any railroad company may charge the sum of twenty (25) cents for the carriage of any passenger who may get on or off a train at other than a regular station; Provided, further: All passengers who may fail to procure regular fare tickets shall be transported over all railroads in this State at the same rate and price charged for such tickets for the same service.

"The number of miles in any railroad shall be held to include the entire length of said railroad, whether wholly within this State or extending beyond the limits thereof, and any branch railroad operated by the same person or corporation operating any main line, shall be held to constitute a part of said main line for the purpose of determining the length of said main line for the purposes of this act.

"SEC 2. That each passenger who shall pay fare at the rate specified in section one, shall be entitled to have transported along with him, on the same train, and without any additional charge, one hundred and fifty pounds of baggage to consist of such articles as are usually carried by ordinary persons when traveling; and payment of fare, at the rate specified in section one, shall entitle the person paying the same to be transported, without additional charge over any bridge or ferry, or through any tunnel, that may be used by the persons aforesaid, to make a continuous line between the points, on said line of railroad between which the passenger may have acquired the right to be carried by payment of fare at the rate aforesaid.

"SEC 3. Any of the persons or corporations mentioned in section one, that shall charge, demand, take, or receive from any person or persons aforesaid any greater compensation for the transportation of passengers than is in this act allowed or prescribed, shall forfeit and pay for every such offense any sum not less than $ 50, nor more than $ 300, and costs of suit, including a reasonable attorney's fee, to be taxed by the court where the same is heard on original action, by appeal or otherwise, to be recovered in a suit at law by the party aggrieved in any court of competent jurisdiction. And any officer, agent or employee of any such person or corporation, who shall knowingly and wilfully violate the provisions of this act, shall be liable to the penalties prescribed in this section, to be recovered in the same manner.

"SEC. 4. That all acts and parts of acts in conflict with this act be and the same are hereby repealed, and that this act take effect thirty days after its passage.

"Approved April 4, 1887."

Affirmed.

B. R. Davidson, for appellant. John O'Day and E. D. Kenna of counsel.

1. The legislature could not compel appellant to carry passengers for less than the actual amount expended in performing the service incident thereto. 94 U.S. 155; 21 A. & E. R. Cases, 14; Mansf. Dig., sec. 5473; 125 U.S. 680; 116 U.S. 307, 325; 128 id., 174; 123 id., 661.

2. Appellant was not a bona fide passenger, and hence not within the meaning of the pretended law. Laws of this kind are not intended for the purpose of encouraging a party to speculate in penalties. 46 N.Y. 544.

3. The act discriminates between roads of the same class. Appellant's road was less than seventy-five miles in length.

4. The overcharge was entirely for carrying plaintiff over the bridge, and it follows that, if such rate was authorized, there was no offense. Congress had the right to regulate the rate of fare or toll for crossing this bridge. It delegated the power to the secretary of the interior, and he fixed the rate. The act, in so far as it attempts to regulate the charges made on this bridge, is in conflict with the act of Congress, and is void. 6 Wall., 35; 12 How., 229; 105 U.S. 470; 109 U.S. 385; 3 Wall., 713; 10 Wall., 557; 13 How., 565; 18 id., 421; 10 Wheat., 316.

5. The act was never properly enacted.

Dan W. Jones for appellee.

1. This case is not distinguishable from that in 49 Ark. 329, and 125 U.S. 680. When the St. Louis, Arkansas and Texas Railway consolidated with two other corporations, it was not the same corporation, but became functus officio, and a new corporation came into existence. 41 Ark. 436; ib., 509; 112 U.S. 609; 44 Ark. 17; 49 id., 325; 125 U.S. 680. Hence evidence as to the cost of the St. Louis, Arkansas and Texas Railway was not admissible in evidence.

2. The Arkansas statute differs from that construed in 46 N.Y. 644. See Mansf. Dig., secs. 5014-5019. The law intended a penalty for each violation, which may be recovered in one suit. 3 Hill, 527; 4 T. R., 229; 3 ib., 98; 1 Chit. Pl., 181; Cowen's Tr., 561, 2d ed.; and see 46 N.Y. 660.

3. It is admitted that appellant's road is more than 75 miles in length.

4. All the objections urged against this act are answered by 49 Ark. 329, and 116 U.S. 325.

5. The allegation that appellee voluntarily paid the overcharge is no defense. The charging, demanding, taking or receiving more than three cents a mile fixed the company's liability, as a punishment for the violation of the act, and is within the police power of the State. 49 Ark. 455; 46 N.Y. 644.

OPINION

HEMINGWAY, J.

The questions presented by this appeal depend upon the sufficiency of ten several paragraphs of the answer of the defendant below, appellant here, to each of which a demurrer was sustained. There was a trial upon one paragraph, and verdict and judgment for the plaintiff.

In the second paragraph it was alleged that the act of April 4, 1887, entitled an act to regulate the rates to be charged by railroads for the carriage of passengers, was not passed by the several houses of the general assembly in accordance with their joint rules, and that the bill as passed did not contain any provision limiting the rates that could be charged for the transportation of passengers. The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts. That the act as passed contained a clause limiting passenger rates, was settled by this court in Dow v. Beidleman, 49 Ark. 325, 5 S.W. 297.

The substance of the ninth paragraph is that the appellee voluntarily paid the alleged overcharge, and that he therefore could not recover. Whether the conclusion would follow if he sought to recover the amount of the overcharge, we need not decide; a voluntary payment of the overcharge does, not preclude a recovery of the statutory penalty.

The eighth paragraph sets up that the plaintiff went upon the defendant's train, not for the purpose of ordinary business or pleasure, but for the sole purpose of accumulating penalties against it, and that it would be against public policy to allow him to maintain this action, and thereby speculate in penalties. The act was not intended to provide a compensation for the injured passenger; but to deter railroad companies from taking excessive fares by punishing every such act. Each overcharge is in violation of law, and every payment of it is a legal wrong to the party making, it, who is thereby aggrieved within the meaning of the act, and by its express terms entitled to sue. Fisher v. Ry. Co., 46 N.Y. 644; Parks v. Nashville, etc., Ry., 81 Tenn. 1, 13 Lea 1; S.C. 18 A. & E. R. R. Cas. , 404.

In the sixth paragraph it is alleged that, by virtue of various acts of Congress, the line of defendant's road is declared a post and military route and national highway for postal military and all other governmental services, and is subject to be regulated only by act of Congress; that it became such by grants of land and right of way from the government, and is thereby exempt...