Southern Ry. Co. v. R.R. Comm'n of Indiana

• Decision Date: 03 January 1913
• Docket Number: No. 22,140.,22,140.
• Citation: 179 Ind. 23,100 N.E. 337
• Parties: SOUTHERN RY. CO. v. RAILROAD COMMISSION OF INDIANA.
• Court: Indiana Supreme Court

179 Ind. 23

100 N.E. 337

SOUTHERN RY. CO.

v.RAILROAD COMMISSION OF INDIANA.

No. 22,140.

Supreme Court of Indiana.

Jan. 3, 1913.

Appeal from Superior Court, Vanderburgh County; Alexander Gilchrist, Judge.

Action by the Railroad Commission of Indiana against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Alex. P. Humphrey and Edwin P. Humphrey, both of Louisville, Ky., and John D. Welman, of Evansville, for appellant. Spencer, Brill & Hatfield, of Evansville, for appellee.

MYERS, J.

This was an action brought by the appellee against the appellant to recover the statutory penalty provided by section 3 of the Act of 1907. Acts 1907, p. 186; Burns 1908, § 5280. That section reads as follows: “Grabirons—Handholds. That it shall be unlawful for any such common carrier to haul, or permit to be hauled or used on its line, any locomotive, car, tender or similar vehicle used in moving state traffic not provided with secure grabirons or handholds in the sides or ends thereof.” The penalizing section is 10, Burns 1908, § 5287, and reads as follows: “Penalty.—That every such common carrier, or the receiver thereof, using, or permitting to be used or hauled on its line, any locomotive, car or similar vehicle or train, in violation of any of the provisions of this act shall be liable to a penalty of one hundred dollars for each violation, to be recovered in a suit or suits by and in the name of the Railroad Commission of Indiana for the use of the state of Indiana in any circuit or superior court of this state having jurisdiction over such offending carrier,” etc.

[1] The first error assigned and presented is as to overruling the demurrer to the complaint, which was on the grounds of want of jurisdiction in the court over the subject–matter and insufficiency of facts to constitute a cause of action. The material allegations of the complaint are that defendant is, and was at the times therein referred to, a common carrier engaged in moving traffic by railroad between points within the state of Indiana, and as such common carrier on February 24, 1910, and for a long time prior and subsequent to that date, owned, used, and operated between said points locomotives and cars, and on that date on and over the tracks owned or in the operation or control of defendant had hauled its said locomotives and cars, and among said cars owned or operated by defendant was a car No. 61264 of the gondola description, being hauled or moved in train No. 77 by locomotive No. 641 of defendant, which car was loaded with coal and billed from Boonville, Ind., to Milltown, Ind.; that while at Huntingburgh, Ind., a station on its line between said stations of Boonville and Milltown, defendant unlawfully permitted said car to be hauled or used on its said line, said car not then being provided with secure grabirons or handholds on the sides or ends of said car; that the handhold on said car was broken, bent, and twisted against the body of the car, thereby rendering the same of no use, and the same could not be used, and was not a grabiron or handhold, and that said car at the time was being used in moving traffic and freight between points in the state of Indiana. The claimed insufficiency of the complaint for want of facts and the want of jurisdiction of the subject–matter is based upon the assumption that courts take judicial notice that appellant was at the time engaged in interstate commerce. No authority for that proposition is cited, and we are unable to find authority for it, and we think it is an erroneous assumption.

The real controversy in the case arises over the action of the court in sustaining a demurrer to the answer. The answer is predicated upon the alleged facts that on February 24, 1910, appellant was and now is a corporation organized and existing under and by virtue of the laws of the state of Virginia, and is a railroad company engaged in the operation or a railroad and the carrying of passengers and freight for hire; that it was and is engaged in interstate commerce between states of the United States, and has railroad tracks, and is operating a railroad as a common carrier in 10 states, and in the District of Columbia, and is engaged in interstate commerce in the state of Indiana, and was at said time; that all its locomotives and cars, including the car mentioned in plaintiff's complaint, were frequently and commonly used and engaged in interstate traffic; that on the 24th day of February, 1910, said car mentioned in plaintiff's complaint was loaded with coal, and was consigned to and from points within the state of Indiana; that said car was in train No. 77, and that train No. 77 was at said time engaged in hauling interstate traffic; that said train No. 77 originated in the state of Illinois, and passed through, and into the state of Indiana, and various other states; that said car was a part of said train No. 77, and that said train No. 77 contained 20 cars, and all the other cars of said train and the train crew were at said time being used by the defendant in interstate commerce between the states, and that said other cars were consigned from one of the states to, into, and through another state; that at the time certain federal statutes, which are set out, were in full force, regulating and controlling the equipment of cars and engines used by railroads and common carriers engaged in interstate commerce, including automatic couplers and grabirons, commonly called the “Safety Appliance Act,” by and in which penalties are provided for failure to comply with the provisions of those acts, and the courts and jurisdictions in which such penalties may be recovered; that, by reason of the premises, all the cars and engines of the defendant, including the car in question, were at the time complained or subject to the exclusive power of the Congress of the United States, and exclusively within the regulation and control provided by said acts of Congress. Federal Safety Appliance Act March 2, 1893, by its fourth section, provided: “That from and after the first day of July eighteen hundred and ninety–five *** it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons and handholds in the ends and sides of each car, for greater security to men in coupling and uncoupling cars.” Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. Stat. 1901, p. 3174). The act was amended March 2, 1903, by section 1 as follows: “Be it enacted *** and the provisions and requirements hereof, and of said act relating to train brakes, automatic couplers, grabirons, and the length of drawbars, shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the District of Columbia, and to all other locomotives, tenders, cars and similar vehicles used in connection therewith, excepting,” etc. Act March 2, 1903, c. 976, § 1, 32 Stat. 943 (U. S. Comp. Stat. Supp. 1909, p. 1143). The sixth section of the act of 1893, as amended in 1896, provides a penalty of $100 for each violation of the act, and for action upon part of the United States district attorney in the district court of the United States having jurisdiction. Act April 1, 1896, c. 87, 29 U. S. Stat. at Large, 85.

It is the contention of appellant, first, that the sole jurisdiction for punishment for the violation alleged in the complaint is in the United States District Court; and, second, that, the Interstate Commerce Act having covered the same field under the power “to regulate commerce,” the Indiana statute is void as to a car used on a railroad engaged in interstate commerce whether the car be loaded and delivered within a state, or whether moved loaded or empty within a state. The answer set out sufficiently discloses appellant's contention and theory. The solution of the second proposition necessarily determines the first, for the reason that, if the federal act is alone controlling, the action to impose a penalty must be in the United States courts; while, if the federal act is not controlling as to the subject–matter itself, it is not claimed that there is want of jurisdiction in the state courts. The controversy is made to wage around the question whether the act of Congress refers to and includes any car in use at any time on any railroad engaged in interstate commerce generally, or in any interstate train, irrespective of whether it is at any particular time carrying an intrastate shipment or whether at the particular time loaded and delivered wholly within a state, through which such railroad or train runs. It is the urgency of appellee that the state act is not an effort to regulate or interfere with interstate commerce, and is in aid of the Safety Appliance Acts of Congress, and not repugnant thereto, and that where they do not conflict the carrier is answerable to both statutes. An examination of the state statute discloses that it seeks to restrict its operation wholly to the movement of purely state traffic; in fact, the tenth section expressly excepts “locomotives, tenders, cars, similar vehicles or trains, while any of which are in actual use in interstate commerce,” and the question is: Notwithstanding this fact, is its effect a regulation or interference with or burden upon interstate commerce, or in conflict in actual operation with the federal act, as applied to the character of the shipment disclosed by the answer. The car in question was at the time used in hauling an wholly intrastate shipment. It was in a train all the others cars of which were used in interstate shipments, or passing from Illinois into or through Indiana, by a train originating in the former state, manned by a crew coming from Illinois. The answer seems to have been drawn under the earlier of the holdings in several federal cases here relied on (Voelker v. Railway Co. (C. C.) 116 Fed. 867; The...