Rhodes v. New Orleans Great Northern R. Co.
| Decision Date | 10 April 1922 |
| Docket Number | 22333 |
| Citation | 91 So. 281,129 Miss. 78 |
| Court | Mississippi Supreme Court |
| Parties | RHODES v. NEW ORLEANS GREAT NORTHERN R. CO |
APPEAL from circuit court of Marion county, HON. G. WOOD MAGEE Special Judge.
Suit by Ed Rhodes against the New Orleans Great Northern Railroad Company. Judgment for the defendant, and the plaintiff appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
Hall & Hall, for appellant.
The first ground of demurrer is: "Because so much of the act of Congress on February 28, 1920, known as the Transportation Act, 1920, as attempts to authorize the Railroad Labor Board created by said Act of Congress, to fix or regulate the wages of employees of carriers is null, void and unconstitutional and is in violation of the Fifth Amendment of the Constitution of the United States, in that it deprives this defendant of its property without due process of law, and deprives defendant of the equal protection of the laws.
It will be noted that this ground of demurrer questions the constitutionality of that portion of the Transportation Act of 1920, which authorized the Railroad Labor Board, created by said act, to fix or regulate the wages of employees or carriers.
We have carefully searched the authorities and we have been unable to find where any court of final jurisdiction has passed upon the constitutionality of the act in question. We find however, that the district court of the United States, for the southern district of Texas, sitting at Houston, Texas, in the case of Central Trust Company of New York, complainant v. I. & G. N. Railroad Company et al., defendants; recognized the validity and binding effect of the decision of the United States Railroad Labor Board created by said act, for in passing upon this case the court finds, in the fourth paragraph of its judgment: "The court further finds, and is of the opinion that the rank and file of the members of this order did not realize and appreciate the illegality of their said actions, but were under the impression that they had a right to strike even as against the decision of the United States railroad Labor-Board in order to accomplish what they deemed to be their rights.
It will thus be seen that at least one federal court is of the opinion that the act creating the Labor Board and the decisions of the Labor Board are legal and valid, and binding upon the parties, and not violative of the Constitution.
We have carefully searched the authorities and while there are several cases which are good authority to sustain our contention, we will not burden the court with these because, there is one case identically in point, to-wit: The case of Wilson v. New, 61 Law. Ed. 755, decided by the supreme court of the United States on March 19, 1917.
Second: The second ground of demurrer is as follows: "That the alleged order of the Railroad Labor Board of July 20, 1920, fixing the prices of wages of track laborers on defendant's railroad at thirty-six and one-half cents per hour is null and void and repugnant to the provisions of the Fifth Amendment to the Constitution of the United States, in that it deprives this defendant of its property right to contract with its employees for compensation for their services, and denies to it the equal protection of the laws."
It will be noted that this raises the question of the constitutionality of the decision of the United States Railroad Labor Board whereby this board fixed the rates of pay of track laborers on the New Orleans Great Northern Railroad at the sum of thirty-six and one-half cents an hour.
If the Transportation Act is constitutional, then certainly it cannot be seriously contended that the order of the Labor Board is unconstitutional. However, in arguing this case in the court below, counsel for the railroad company seems to be under the impression that the same rate of pay was fixed by the Labor Board for all track, laborers on all railroads in the entire United States, and contended that this was unjust and inequitable and violative of the Constitution, arguing that the cost of living in the large northern cities is much higher than in the south, etc. Counsel, however, were mistaken and in order to show this, it is necessary to quote from the decision in question, of which the court will take judicial notice under the following authority: In the case of Anton Caha v. U.S. 38 Law Ed. 415, 419, it is said: "It may be laid down as a general rule deducible from the cases that whenever by the express language of an Act of Congress, power is intrusted to either of the principal departments of government to prescribe rules and regulations for the transaction of business in which they have a right to participate and by which they are to be controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice. Citing U. S. v. Teschmakers, 63 U.S. , 22 How. 392, 405, Romero v. U.S. 68 U.S. , 1 Wall 721; Armstrong v. U.S. 80 U.S. , 13 Wall. 154; Jones v. U.S. 137 U.S. 202; Knight v. United Land Assoc., 142 U.S. 161, 169; Jenkins v. Collard, 145 U.S. 546.
Third: The third ground of demurrer is as follows: "That the Railroad Labor Board created by said act of Congress is a tribunal or board of special and limited jurisdiction and can render a decision or order only where there is a dispute between a carrier and its employees and an application has been made to said board to settle such dispute; or when in the opinion of the board such dispute is likely substantially to interrupt commerce; and it is not alleged in the declaration that there was a dispute between defendant and its employees and that an appeal to said board had been made, or that, in the opinion of the Labor Board, such dispute was likely substantially to interrupt commerce; and it is not alleged that such order of said Labor Board was duly given or made.
This ground, it will be seen, attacks the sufficiency of the allegations in the declaration. In other words, counsel seem to contend that it is necessary to allege in the declaration all of the facts and circumstances under which decision No. 2 of the Labor Board was rendered, and all facts which conferred jurisdiction on the board to render this decision, section 770 of the Mississippi Code of 1906, which is the same as section 553 of Hemingway's Code, provides: "In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be said to have been duly given or made; and the facts conferring jurisdiction shall be shown at the trial."
It is true that under the Transportation Act creating the Labor Board, it is necessary that there should be a dispute between the carrier and its employees before the Labor Board would have jurisdiction and authority to fix the wages of the employees, but we contend that it is not necessary under the foregoing section of our code to allege in the declaration what the facts are which conferred jurisdiction upon the board.
Fourth: The fourth ground of demurrer is: "Because it appears by the declaration that the plaintiff worked for the defendant from January 1st to June 30, 1921, at a wage of twenty cents per hour, without protest and without demanding pay at the rate of said thirty-six and one-half cents per hour for the period or any part of it and accepted pay at the rate of twenty cents per hour without protest.
It appears that the appellee is seeking to plead estoppel by demurrer. Estoppel as a general rule must be raised by a special plea, and is a ground for demurrer only where it clearly appears on the face of the pleadings. 10 R. C. L., 842-843. We invite the court's attention to the Transportation Act as a whole; it appears that enormous and undreamed-of guaranties were made by the United States to the carriers. Furthermore, liberal amendments were made in the Interstate Commerce Act, and in order to take care of the increase in wages given by the Labor Board, the Interstate Commerce Commission granted to the carriers liberal increases in freight and passenger rates. These increases in rates were made for no other purpose save to enable the carriers to pay, without hardship, the increased rates of wages of their employees, and every person in the whole nation today is paying the freight, through increased costs of the necessities of life on account of these increased rates. The appellee carrier in this case has derived and is now deriving additional revenue on accounts of these increases in rates, and every man, woman and child along its line of railroad is affected thereby. (It has been repeatedly held that courts will take judicial notice of such matters of public record and common knowledge.) Can the appellee contend that it is just and equitable for it to receive this increased revenue and then refuse to apply it where Congress and the Interstate Commerce Commission intended that it should be applied? We fail to comprehend on what ground such conduct can be justified and in order that the spirit and intention of the Transportation Act may be carried out, we confidently await judicial interpretation as will say to the carriers that the courts of the state of Mississippi and the other states of the Union will not permit such fraud to be perpetrated upon the public and upon the humble employees without whom no train could operate--such fraud, we repeat, as will allow the railroads to take from the pockets of the people of America increased freight and passenger rates, and then refuse to disburse those increases through the channels in which the law contemplates they should go.
Mounger Ford & Mounger, for ...
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