Appeal
from Crawford Circuit Court HUGH F. THOMASON, Judge.
Dudley
Smith, a minor, by his next friend, sued the Missouri Pacific
Railway Company and the Little Rock and Fort Smith Railway
Company, and alleged that the two defendants owned and
operated in Arkansas a line of railroad of more than 75 miles
in length; that, in January, 1891, said defendants demanded
and received from plaintiff, as his fare over said road from
Dyer to Alma, regular stations, and return, the sum of 20
cents; that the distance between said stations did not exceed
five miles, and that said charge was unlawful. Damages were
laid at $ 600, with attorney's fees and costs.
The
Little Rock & Fort Smith Railway Company filed a separate
answer containing nine paragraphs, numbered respectively 1
2, 3, 4, 4 1/2, 5, 6, 7, 8. The first paragraph denied that
it had "wrongfully, illegally or improperly"
exacted from plaintiff a greater rate of fare between the
stations mentioned than allowed by law.
The
second paragraph of the answer was as follows:
"2.
And for a second defense, defendant says: It denies that
plaintiff was a bona fide passenger upon defendant's
train on the days alleged in said complaint, for the purpose
of going from Alma to Dyer, or elsewhere. It denies that he
got upon said train for any other purpose than that of
knowingly, wilfully and intentionally inducing, persuading
and entrapping this defendant into a violation of the laws of
the State of Arkansas, entitled 'An act to regulate the
rates of charges for the carriage of passengers by
railroads,' approved April 4, 1887. It charges the fact
to be that the plaintiff in this case was invited, persuaded
and induced by D. B. Locke, now attorney of record for
plaintiff in this case, and an attorney at law, duly
commissioned and licensed to practice law in the State of
Arkansas, to board defendant's train for the sole, only
and avowed purpose of knowingly, intentionally and
fraudulently inducing this defendant, in ignorance and by
mistake, to violate the law in making an overcharge for
passenger fare from Alma to Dyer. It charges that said
attorney, as aforesaid, offered to and paid the plaintiff a
sum of money now unknown to defendant, and that the plaintiff
received said money from said attorney for the sole, only and
avowed purpose of getting upon defendant's train, and
riding from Alma to Dyer, and thereby paying said sum of
money to the conductor of defendant's train, and thus
knowingly and fraudulently inducing the defendant, or its
servants, to innocently, mistakenly and unintentionally
violate the laws of the State of Arkansas. And it further
charges that the plaintiff received said money from the said
attorney, under the contract, agreement, inducement and
understanding between said plaintiff and said attorney, that
the said plaintiff should get upon defendant's train for
the express purpose, and that he should pay said illegal fare
with the knowledge and belief that said fare was illegal, and
that in receiving the same this defendant was ignorantly
unintentionally and mistakenly violating the laws of
Arkansas; and that, after said payment should have been made
it was agreed between plaintiff and the said attorney that
the said attorney of record in this case should institute
this suit, and that the proceeds, in the shape of fines
penalties and attorney's fees, when recovered, should be
divided equally between them. Wherefore, this defendant says
that plaintiff, having been a party to the violation of the
statutes above referred to, if any violation there was, his
acts, having been barratrous and champertous, are in
violation of law, and without equity or justice to sustain
them. And, whereas, the said plaintiff is seeking to take
advantage of his own wrong, he cannot recover in this action,
and the defendant prays to be dismissed," etc.
"3.
And for a third defense, defendant says that, denying that it
has in any manner violated the act of the general assembly of
the State of Arkansas, entitled 'An act to regulate the
rates of charges for the carriage of passengers by
railroads,' approved April 4, 1887, under which this suit
is instituted, it says that, under the terms of section 1 of
said act, it is made unlawful for any railway, whose line of
railroad within the State is over Seventy-five miles long, to
charge any one passenger carried on such line within this
State over three cents per mile; that section 3 of said act
imposes a penalty of not less than $ 50 nor more than $ 300
for every such offense, with costs and attorney's fees,
to be recovered by the party against whom the overcharge is
made. This defendant would show that, under the terms and
rates prescribed by said statute, it cannot keep up, maintain
and operate its railway except at a heavy loss; that its line
of railway is located wholly within the State of Arkansas,
and is one hundred and sixty-seven miles in length, running
between the cities of Little Rock and Fort Smith; that the
traffic and business over the same, both in passengers and
freight, is so small and unremunerative that it cannot, and
has not been able to, operate its railway, under said statute
as aforesaid, without an actual loss. Defendant therefore
says and charges that said statute, forbidding this defendant
from charging any one passenger a greater rate than three
cents per mile, is entailing a great and daily loss upon this
defendant, which will in the end amount to a total
confiscation and destruction of its property, rights and
franchises, because of its inability, under such rate, to pay
the interest upon its just debts, and the cost of maintaining
and operating its railroad in a safe and proper condition.
Defendant charges that said section one of the act aforesaid,
in the establishment of such rates of three cents per mile
over defendant's railway, and against its will, is in
violation of section eight, article two, of the constitution
of Arkansas, in this, that the establishment of such rates by
the State, against the will of the company, was, pro tanto, a
taking of defendant's property, and depriving it thereof
without due process of law, and was therefore void and of no
effect."
The
fourth paragraph was the same as the third, except that the
act of April 4, 1887, was alleged to be a violation of the
fourteenth amendment of the constitution of the United
States.
Paragraph
No. 4 1/2 of the answer was as follows:
"4
1/2. And, for a further defense defendant says that the act
of the general assembly of the State of Arkansas entitled
'An act to regulate the rates of charges for the carriage
of passengers by railroads,' approved April 4, 1887
under which this suit is instituted, fixes the rate for the
carriage of a passenger at three cents per mile, [and] is
unreasonable in this, that the actual cost and expense of
transporting each passenger and his baggage over
defendant's road is more than, and in excess of, three
cents per mile, the maximum charged allowed by said statute
for such transportation, and that by reason thereof defendant
is compelled to transport passengers over its said road at a
loss; and defendant further says that it costs more than
three cents per mile to transport each passenger and his
baggage between the stations of Alma and Dyer, and that the
sum of 20 cents, if it was demanded from plaintiff, and
received by defendant's employees, is not adequate
compensation for transporting plaintiff between the said two
stations. Wherefore it says that said statute in effect takes
from the defendant its property without due process of law,
and is in violation of the same, and deprives the defendant
of its property without due process of law, and is in
violation of section one of the fourteenth amendment to the
constitution of the United States, and is therefore void and
of no effect."
"5.
And for a fifth defense defendant says that section three of
the act of the general assembly of the State of Arkansas
entitled 'An act to regulate the rates of charges for the
carriage of passengers by railroads,' approved April 4,
1887, under which this suit is brought, provides that the
railway company 'shall forfeit and pay for every
violation of said act any sum not less than $ 50 nor more
than $ 300, and cost of suit, including a reasonable
attorney's fee to be taxed by the court, to be recovered
by the party aggrieved.' This defendant would show that
said fine and penalties are unjust, unreasonable and
excessive, and in violation of section nine, article two, of
the constitution of the State of Arkansas, which declares
that excessive fines shall not be imposed, and is therefore
void and without effect."
"6.
And for a further and sixth defense defendant says that
section three of the act of the general assembly of the State
of Arkansas entitled 'An act to regulate the rates of
charges for the carriage of passengers by railroads,'
approved April 4, 1887, under which this suit was brought,
provides that the railway company 'shall forfeit and pay
for every violation of said act 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, to be
recovered by the party aggrieved. This defendant would show
that said fine and penalties are unjust, unreasonable and
excessive, and are in violation of the eighth amendment of
the constitution of the United States, which declares that
excessive fines shall not be imposed, and is therefore void
and without effect."
"7.
And, for a seventh and further defense, this defendant says
that, denying that it wrongfully, illegally and improperly
exacted from said plaintiff a rate of fare greater than that
allowed by law, or that it knowingly or...
