St. Louis & S. F. Ry. Co. v. Gill

• Decision Date: 03 January 1891
• Parties: ST. LOUIS & S. F. RY. CO. v. GILL.
• Court: Arkansas Supreme Court

15 S.W. 18

ST. LOUIS & S. F. RY. CO. v. GILL.

Supreme Court of Arkansas.

January 3, 1891.

Appeal from circuit court, Washington county; J. M. PITTMAN, Judge.

B. R. Davidson, John O'Day, and E. D. Kenna, for appellants. Dan. W. Jones, for appellee.

HEMINGWAY, J.

The questions presented by this appeal depend upon the sufficiency of ten several paragraphs of the answer of the defendant below, appellant here, to each of which a demurrer was sustained. There was a trial upon one paragraph, and verdict and judgment for the plaintiff.

In the second paragraph it was alleged that the act of April 4, 1887, entitled "An act to regulate the rates to be charged by railroads for the carriage of passengers," was not passed by the several houses of the general assembly in accordance with their joint rules, and that the bill as passed did not contain any provision limiting the rates that could be charged for the transportation of passengers. The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts. That the act as passed contained a clause limiting passenger rates was settled by this court in Dow v. Beidelman, 49 Ark. 325, 5 S. W. Rep. 297.

The substance of the ninth paragraph is that the appellee voluntarily paid the alleged overcharge, and that he therefore could not recover. Whether the conclusion would follow, if he sought to recover the amount of the overcharge, we need not decide. A voluntary payment of the overcharge does not preclude a recovery for the statutory penalty. The eighth paragraph sets up that the plaintiff went upon the defendant's train, not for the purpose of ordinary business or pleasure, but for the sole purpose of accumulating penalties against it, and that it would be against public policy to allow him to maintain this action, and thereby speculate in penalties. The act was not intended to provide a compensation for the injured passenger, but to deter railroad companies from taking excessive fares by punishing every such act. Each overcharge is in violation of law, and every payment of it is a legal wrong to the party making it, who is thereby aggrieved within the meaning of the act, and by its express terms entitled to sue. Fisher v. Railway Co., 46 N. Y. 644; Raht v. Railway Co., 5 Lea, 1.

In the sixth paragraph it is alleged that by virtue of various acts of congress the line of defendant's road is declared a post and military route and national highway for postal, military, and all other governmental services, and is subject to be regulated only by act of congress; that it became such by grants of land and right of way from the government, and is thereby exempt from state regulation. We do not appreciate the force of this defense. We do not understand that a grant of lands or a right of way over lands by the government confers immunity from state regulation upon its grantee.

The remaining paragraphs of the answer contain objections by which, as it is claimed, the act in question was shown to be in conflict with the provisions of the state and federal constitutions. As they contain many repetitions of the same allegations, varying only in the different paragraphs in respect of form, we will state and consider them together. They are substantially as follows: That the alleged overcharges were made for passages on that part of the defendant's road formerly owned by the St. Louis, Arkansas & Texas Railway Company in Arkansas. That said company was duly organized under the general laws of the state of Arkansas in 1880. That by the laws then in force, and which were a part of its contract with the state, it was provided that said corporation, its successors or assigns, might fix such rates of fare as to it should seem proper, but that the legislature might alter or reduce its rates: provided, that no such reduction should be made until the net proceeds of its road for one year had exceeded 15 per cent. of its capital actually paid in: and provided, further, that such rates should not be so changed as to produce a profit below 15 per cent. as aforesaid. That, in accordance with the general laws of the states of Arkansas and Missouri, said St. Louis, Arkansas & Texas Railway Company, on the 10th day of February, 1881, was consolidated with two other corporations, in the name of the St. Louis, Arkansas & Texas Railway Company, Consolidated, which latter company succeeded to all the property, power, privileges, rights, and immunities which belonged to either of the consolidating companies. That at the time of the consolidation the road of the original Arkansas corporation had not been completed, and that it and the consolidated corporation were without means to complete the road. That on the 2d day of February, 1882, the consolidated company, by the authority and in pursuance of the general laws of the states of Arkansas and Missouri, sold and conveyed to the appellant all its railroad in said state, together with all its rights, privileges, franchises, and immunities thereunto belonging or appertaining; the appellant assuming, in consideration thereof, all the debts and obligations of the consolidated company. That the appellant thereby succeeded to the rights of the consolidated company, under its contract with the state, to fix such reasonable rates of fares for the transportation of passengers as would enable it to realize a profit of not less than 15 per cent. per annum of its capital actually paid in. That the road of said consolidated company has been completed for five years, and has never earned during any year profits to exceed 3 per cent. on the capital actually paid in, and that neither of the consolidating roads had earned profits during any year in excess of such rate. That the net earnings of said consolidated road for the next two years would not exceed 3 per cent. on the capital actually paid in, or on the amount actually expended on the consolidating lines; and that, if appellant is required to charge no more than 3 cents per mile for the carriage of passengers on said line of railway, its earnings will be so reduced that no profit whatever will inure to its owners, and such earnings will not pay reasonable interest on the fixed indebtedness actually incurred in constructing the road. That the formation of the original company, its consolidation with others, and the sale by the consolidated company, each and all constitute contracts between the state and said several companies, entered into upon the faith that each of said several companies should have the right to fix its rates for the carriage of passengers at any sum it might deem proper which would not produce an annual net profit on the capital actually paid in to exceed 15 per cent. That the act in question alters the said several contracts and is in violation of section 10, art. 1, of the federal constitution. That by section 6, art. 12, of the constitution of Arkansas, in force at the several dates aforesaid, it is provided that no charter of any corporation shall be altered, revoked, annulled, or repealed in such a manner as to do injustice to the corporations, and that the act is in violation of said provision. That the line on which the stations named are located contains heavy grades, many cuts and fills, bridges, trestles, embankments, and tunnels, the construction of which cost, and the maintenance of which does and will continue to cost, extraordinarily and unusually large sums of money; and that it is reasonable and just to charge five cents per mile for carrying passengers over said line. That to limit its passenger rate to three cents per mile takes its property without compensation, in violation of the fifth and fourteenth amendments to the federal constitution. That it is special legislation, and discriminates against the defendant, in this: that it permits a company operating 75 miles of road, or less, to charge five cents per mile passenger fare, but prohibits a company operating more than that length of road from charging that amount for a passage not exceeding that distance, in violation of article 11 of the state constitution, and of section 1 of the fourteenth amendment to the federal constitution. That the defendant's road is made up of roads that formerly belonged to different companies, and the stations named are situate on a line which, as formerly owned, was...