St. Louis, Iron Mountain & Southern Railway Company v. State

• Citation: 136 S.W. 938,99 Ark. 1
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE
• Decision Date: 10 April 1911
• Court: Arkansas Supreme Court

136 S.W. 938

99 Ark. 1

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE

Supreme Court of Arkansas

April 10, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed.

STATEMENT BY THE COURT.

August 12, 1909, the grand jury of Marion County returned into court the following indictment against the appellant, to-wit (omitting caption):

"The grand jury of Marion County, in the name and by the authority of the State of Arkansas, accuse the St. Louis, Iron Mountain & Southern Railway Company of the crime of failing, refusing and neglecting to comply with a certain finding, decree and mandate of the Railroad Commission of Arkansas, requiring it to construct and connect with its main line of railway a spur track on its right-of-way at a point opposite the main crane erected at Comal, Arkansas, committed as follows, to-wit:

"The said St. Louis, Iron Mountain & Southern Railway Company, in the county of Marion and State of Arkansas, on the 2d day of September, 1908, unlawfully did fail, refuse and neglect to comply with a certain finding, decree and mandate of the Railroad Commission of Arkansas requiring it to construct and connect with its main line of railway a spur track on its right of way at a point immediately opposite the mail crane erected at Comal postoffice, in the said county and State, of sufficient length to accommodate at least two cars, after the said Railroad Commission of Arkansas had, by its order No. 366 A, when said matter was properly and legally before said railroad Commission of Arkansas, on the 6th day of May, 1908, ordered that said St. Louis, Iron Mountain & Southern Railway Company on or before the 1st day of July, 1908, should construct and connect with its main line of railway a spur track on its right-of-way at a point immediately opposite the mail crane erected at Comal postoffice, Marion County, Arkansas, of sufficient length to accommodate at least two cars; contrary to the statute in such case made and provided and against the peace and dignity of the State of Arkansas.

[Signed] "W. F. Reeves,

"Prosecuting Attorney 14th Judicial Circuit, Ark."

The grand jury of Marion County filed 166 other indictments against the appellant, charging a violation of said order of the Railroad Commission identical with the one above set out, except that a different date is alleged in each as the date upon which the offense was committed. A motion was made to quash the indictment because it was not found and presented as required by law, and because there were pending against the defendant other subsequent indictments for the same alleged offense, etc. Testimony was introduced, and the court overruled the motion to quash. Appellant then filed a demurrer to the indictment, which was by the court overruled. Thereupon it filed its plea of not guilty and special pleas: These pleas set up (1) not guilty; (2) it denied that the Railroad Commission made the order referred to in the indictment; (3) denied the authority of the Railroad Commission to make such order; (4) denied that it was the duty of defendant to establish and maintain a spur at Comal postoffice at the time the order was made, and that the same was necessary to the best interests of the public; (5) it alleged that the order of the Railroad Commission was invalid as violating the Interstate Commerce clause of the Constitution; and (6) that said order was invalid because repugnant to section 1, fourteenth amendment to the Constitution of the United States; (7) that same was in violation of the laws of the United States regulating the carrying of mails under sec. 10, art. 1, of the Constitution; (9) that the enforcement of said order would deprive the appellant of its property without just compensation and without due process of law.

It alleged further "that at the place mentioned in said indictment no railroad crosses the defendant's track, and no public road of any kind crosses the defendant's road at any place." There is no town, and the only improvements at said place consist of a mail crane erected by defendant for the accommodation of the postoffice of Comal, which is located nearby. That there is no town at the postoffice, the only improvements consisting of a small box house, used as a general store and dwelling house and postoffice. The surrounding country is sparsely settled, largely wild and uncultivated and rough, a timber country producing not more than one carload of cotton annually, which is hauled to the neighboring town of Yellville, where the producers are accustomed to purchasing their supplies. That at Comal station, about 2,000 feet north of said postoffice and mail crane. there is a station where passengers and freight are received and discharged, and about five miles south of said postoffice and mail crane, on the line of the railroad, is the station Yellville, where there is a depot building and side tracks, depot tracks, stock pen, cotton platform and timber yards, and where a telegraph operator and passenger and freight agents are employed and stationed: and that said stations, Comal and Yellville, furnished to the inhabitants at and near Comal postoffice ample transportation facilities, and that to require the erection and maintenance of a siding or spur track, where the defendant would be required to receive and deliver freight and issue bills of lading at Comal postoffice, would force said defendant to maintain three stations in a sparsely settled country, within a distance of about six miles; that to erect a spur track as prescribed and comply with the order would cost in the neighborhood of $ 10,000, owing to the peculiar physical conditions and situation of the ground at that place. That, because of the topography of the country, it is impractical to provide said spur track, etc., except at a very great expense; that it would cost to maintain the same and carry out said pretended order $ 100 per month, and that the receipts from freights at the place would not pay more than a very small proportion of such sum and expense attendant upon the maintaining of same as prescribed in the order, and that such spur track and facilities would have to be operated at a large monthly loss. That said postoffice is located at the foot of a heavy grade on defendant's line of railway, with a rise of one foot to 100 feet. There is a rising grade to the south for a long distance, more than 25,000 feet, all of which is a one per cent. grade, and that said postoffice is located 4,000 feet south of another abrupt grade similar to that toward the south, and continuing at said grade for a distance of 15 miles to the northward," etc.

The appellant requested a jury to try both the general plea of not guilty and its special plea at the same time, but the court overruled the request, and held that the special pleas should be tried first, and not by a jury, to which ruling exceptions were saved. Appellant in its answer admitted that it had not built. the spur in controversy, and waived a jury to try its plea of not guilty, and agreed that its plea of not guilty should be tried by the court as a jury at the same time and upon the same evidence and admissions introduced in the special plea.

The testimony tended to show that when this White River branch of the railroad company was extended from Newport to Joplin, Mo., there was built about five and one-half miles northwest of Yellville station a water tank and side track or spur, about 3,000 feet long, called Comal station, which was used as a flag station and for taking water and for passing trains, loading and unloading freight, etc. Afterwards a postoffice was established about 2,500 feet southeast therefrom on its line and named Comal P. O., and mail crane erected near the track. Between Comal siding and Comal P. O. a creek runs, crossed by a trestle, and between this creek and the postoffice there is a wide dry creek or ravine which crosses under the railway track through a large stone culvert, a few yards west of the mail crane. This culvert is 18 feet high, and west of it and the mail crane is a long, deep, narrow cut. East of the stone culvert and mail crane, toward Yellville, is a deep cut, and a reverse or double curve, and about 1 per cent. up grade eastward toward Yellville. The Comal postoffice is a short distance, from the mail crane north of the track. After it was established, the people residing in the vicinity, more than 15, petitioned the Railroad Commission to require the railroad company to establish and maintain a depot with suitable sidings at or near the postoffice of Comal, and after giving notice of a hearing before it at which the company appeared, and holding a meeting upon the ground at Comal, where the company was represented by its superintendent, on May 6 the commission entered the following order, requiring the construction of a spur track:

"Office of Railroad Commission of Arkansas.

"Order No. 355 A, 2089. Petition for depot and side track facilities at Comal postoffice, Marion County, Arkansas.

"Due and legal notice having been given, this matter coming on for hearing on this the 6th day of May, 1908, the same having been continued from a meeting held by the Commission, the entire Commission being present at Comal postoffice, Marion County, Arkansas, on the 14th day of April, 1908, at which meeting the petitioners were present and represented by Hon J. W. Black, and the railroad company by its superintendent John Daniels, and the matter coming on this day for decision of the Commission, after giving due consideration to the statements and arguments of all parties and being well and sufficiently advised in the premises, we find that there is a...