San Antonio & A. P. Ry. Co. v. Wilson

• Decision Date: 25 June 1892
• Citation: 19 S.W. 910
• Parties: SAN ANTONIO & A. P. RY. Co. v. WILSON.
• Court: Texas Court of Appeals

19 S.W. 910

SAN ANTONIO & A. P. RY. Co. v. WILSON.

Court of Appeals of Texas.

June 25, 1892.

Appeal from De Witt county court.

Action by Henry Wilson against the San Antonio & Aransas Pass Railway Company to recover amount due on a time check, for wages, and for damages, under Acts 1887, p. 72. Judgment for plaintiff. Defendant appeals. Reversed.

This suit was instituted by appellee, Wilson, October 22, 1888, in the county court of De Witt county, against appellant, to recover the amount due on a certain due bill or time check in writing, issued in favor of appellee by J. P. Nelson, appellant's agent; and also for statutory damages, provided for under Acts 20th Leg. p. 72. This time check was given for the amount of wages due for services performed by appellee as employe of appellant in the construction department of appellant's railway. Demand was made of appellant by appellee for said wages at its nearest station agent in De Witt county, as well as upon its principal offices in the city of San Antonio, within the time required by law. The amount sued for was $510, with legal interest upon same from September 1, 1888, and 20 per cent. additional on said amount as damages for appellant's failure and refusal to pay said wages within 15 days after the demand as aforesaid, under and by virtue of said act of the legislature above mentioned, approved March 30, 1887, p. 72. This act is in the following language, to wit: "That whenever any railroad company shall discharge any employe, or whenever the time of service of any employe of a railroad company shall expire, or whenever any railroad company shall be due and owing an employe, such railroad company, upon such discharge, or upon the termination of the term of such service, or upon the maturity of such indebtedness, shall, within fifteen days after demand thereof upon the nearest station agent of such railroad company, pay to such employe such amount due and owing him; and, in case said railroad company fails or refuses to pay such employe, then it shall be liable and pay to such employe twenty per cent on the amount due him, as damages, in addition to the amount so due; in no case the damages to be less than five nor more than one hundred dollars." Appellant demurred generally and specially to plaintiff's petition, and his demurrer and exceptions were overruled. He also pleaded a general denial, and by special plea, but not under oath, denied that any agency ever existed between appellant and Nelson. He also denied that Nelson had authority to issue any obligation binding upon appellant. The matters of law and fact were submitted to the court, which thereupon rendered judgment for appellee for the amount of the obligation sued upon, with legal interest thereon as claimed in the petition, and the further sum of $100 damages under and by virtue of the act of the twentieth legislature, above quoted.

SIMPKINS, J.

1. The appellant, not having pleaded non est factum, cannot be heard to question the authority of Nelson, its agent, to execute the instrument sued on. In Water Works v. White, 61 Tex. 536, it was held that "the denial of an instrument in writing on which a pleading is founded in whole or in part, and which is charged to have been executed by defendant, an incorporated company, must, under article 1265, Rev. St., be verified by affidavit. The fact that the instrument set forth in the pleading is ambiguous on its face, and does not clearly, by its terms, purport to be the act of the company, does not vary the rule. Austin v. Townes, 10 Tex. 24; Sessums v. Henry, 38 Tex. 37.

2. Appellant insists that the above act of March 30, 1887, is unconstitutional and void, because article 10, § 2, of our state constitution limits the power of the legislature in railway regulation to the public duties of the railways, arising out of their relations as public carriers, and excludes any right to interfere by special legislation between the railways and their employes. The question is one of importance. The validity of a legislative act is necessarily involved. This court must declare whether the law-making power of the state has exceeded its constitutional limits in assuming to legislate where it should not. It need not be said that this is always a question of great delicacy, and one which the true judge ever approaches with profound reluctance. But the question has been fairly presented to this court, and must be met, has the legislature the power to provide a penalty against railroad companies for failing to pay their employes their wages when the same are due? Such legislation can only be sustained upon the theory that railway companies are public in every respect, and the legislature can regulate them, not only in matters relating to their public duties as public carriers, but in all their internal economy. It cannot be now questioned that railways occupy a twofold character, — public and private. As a highway exercising the sovereign right of eminent domain, with exclusive privileges and great monopolistic power over the commerce and interests of the people, it is essentially public in all its relations and duties as a public carrier. It devolves upon the state to see that the great trust is not abused, and its duties are properly performed. Munn v. Illinois, 94 U. S. 113.

Article 10, § 2, of the state constitution declares that all railroads are public highways, and railroad companies common carriers; that the legislature shall pass laws to regulate freight and passenger tariffs; to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce the same by adequate penalties and, to the further accomplishment of these objects and purposes, may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable. It is to be observed that the provisions of this section are mandatory,—"the legislature shall pass laws," etc. While it is generally true that the legislature has the right to pass laws upon all subjects not forbidden by the constitution of the state or the United States, yet it also is true that the constitution often speaks in imperative terms requiring the passage of certain laws, and defining the extent of the required legislation. There is a constant growth and progress in a people as in an individual, and the organic law reflects the status of the people. Changes are slowly made. They are often thwarted for a long time by real or supposed constitutional inhibitions, until at last the issue is made, and the people ingraft an amendment on the organic law. The construction to be placed on such portions of the constitution is that the people have said what they desired on the question, and all they wish to say. This is well illustrated in the railway agitation throughout the United States, which led in Texas to the adoption of article 10, § 2, and the amendment thereto; also to the adoption of similar provisions in the constitutions of many of the states asserting the right of the state to regulate railways. This right was finally sustained by the United States supreme court in the Granger Cases.

There is no question as to the scope of this section of our constitution. Its provisions necessarily refer to and contemplate all injuries to the public arising out of a violation of duties due by the railway company to the public, as a common carrier. Within this broad field, it rests with the legislature to determine what are those duties to the public, and what constitute abuses and injuries, and also what remedies are necessary to prevent them; and to decide whether the abuses shall be corrected through statutes which declare the act or acts to be a crime punishable as such, or whether the act or acts shall be corrected through a civil action, with punitive damages. Under this head, to wit, the public duties of railways, are to be grouped all the various laws on our statute books which provide penalties and damages against railways. The right to enact such laws is sustained by the supreme court of the United States, by the decisions of the highest courts of the several states, and by our own courts. In the case of Railway Co. v. Harry, 63 Tex. 256, the supreme court upheld the validity of a statute authorizing the recovery of an amount equal to the freight charges for every day's wrongful detention of freight; the same being passed in obedience to section 2, art. 10. See, also, Railroad Co. v. Dwyer, 75 Tex. 580, 12 S. W. Rep. 1001; Railway Co. v. State, 61 Tex. 343; 2 Civil Cas. Ct. App. 491. Upon the same ground, in other states, are sustained statutes making railway companies liable in double value for stock killed, when the roads are required, but fail, to fence their roadways. These statutes are sustained on the ground that killing stock by engines endangers the lives of the traveling public. Railway Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. Rep. 110; Humes v. Railroad Co., 82 Mo. 221. But when we consider the relations of railway companies to their own servants, both as to contracts of employment and payment, we find a field in which special legislation has no right ordinarily to enter, and in which railways stand on the same footing with all other corporations or persons, and which cannot be contemplated or included within the scope of section 2, art. 10...