St. Louis-San Francisco Ry. Co. v. State

• Decision Date: 30 September 1929
• Docket Number: No. 111.,111.
• Citation: 20 S.W.2d 878
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. STATE.
• Court: Arkansas Supreme Court

20 S.W.2d 878

ST. LOUIS-SAN FRANCISCO RY. CO. et al. v. STATE.

No. 111.

Supreme Court of Arkansas.

September 30, 1929.

Dissenting Opinion, October 7, 1929.

Rehearing Denied November 11, 1929.

Appeal from Circuit Court; Lawrence County; S. M. Bone, Judge.

The St. Louis-San Francisco Railway Company and the Missouri Pacific Railway Company were found guilty of violating an order of the Railroad Commission requiring them to erect umbrella sheds for protection of passengers, and they appeal. Affirmed.

Thomas B. Pryor, of Ft. Smith, and H. L. Ponder, of Walnut Ridge, for appellant Missouri Pac. R. Co.

E. T. Miller, of St. Louis, Mo., and E. L. Westbrooke and E. L. Westbrooke, Jr., both of Jonesboro, for appellant St. Louis-San Francisco Ry. Co.

Hal L. Norwood, Atty. Gen., and Pat Mehaffy, Asst. Atty. Gen., for appellee.

MEHAFFY, J.

On the 30th day of January, 1929, the prosecuting attorney for the Third judicial district of Arkansas filed before two justices of the peace in the Eastern district of Lawrence county 400 informations 200 against the St. Louis-San Francisco Railway Company before Justice of the Peace W. Story, and 200 against the Missouri Pacific before Justice of the Peace J. F. Israel.

All informations are alike, except as to date upon which the offenses charged were alleged to have been committed, and each information contained the allegation that the defendant unlawfully, knowingly, and willfully failed, refused, and neglected to comply with a certain finding, order, decree, and mandate of the Arkansas Railroad Commission, requiring the railroad company to construct and erect sheds over the platform of its depot at Hoxie, Ark., in said district and county, and described as umbrella standard sheds, to be 250 feet long and having a spread of 12 feet, and to be located so as to accommodate passengers boarding and alighting from trains, and defendants failed, refused, and neglected, in the alternative, to construct and erect one shed of the dimensions aforesaid, to provide adequate protection to passengers boarding and alighting from trains in any direction, after said Arkansas Railroad Commission had, by its order in case No. 517, when said matter was properly and legally before said Arkansas Railroad Commission, on the 2d day of February, 1926, ordered the said defendant companies within 45 days after the entry of said order to erect and construct said sheds, contrary to the statute in such cases made and provided, etc.

There was a second count in each information against the defendants for failure to stop its trains at the depot at Hoxie. The court, however, treated this second count as surplusage.

Neither of the defendants appeared in justice court, and there was a judgment for $25 in each case, a total find of $5,000 against each defendant, with costs. Each defendant appealed to the circuit court, where the cases were tried, and the judgments of the justice of the peace court affirmed. In the justice courts, all the cases against the Missouri Pacific Railroad Company were consolidated, and all the cases against the San Francisco Railway Company were consolidated, and then all the cases against both roads were tried together, and were also tried in the same manner in the circuit court.

On the 1st day of November, 1925, a petition signed by citizens, as required by the statute, was filed against each appellant with the Railroad Commission. Notice was served on each railroad company that the Arkansas Railroad Commission would hold a special meeting in the city of Hoxie on Friday, December 4, 1925, for the purpose of taking up for consideration the petition of citizens requesting that the railroad companies be required to erect sheds over the platform at Hoxie, and notified the companies that the commission would take such action with reference to said petition as might appear just and necessary. Both appellants were not only notified, but were present, and each filed answer and resisted the application for an order of the Railroad Commission. Testimony was taken, and after the testimony was taken an order was made by the Railroad Commission, requiring the railroad companies to build sheds.

The appellants appealed to the circuit court of Pulaski county, where the order of the Railroad Commission was affirmed. The order of the circuit court, as found at page 763 of 176 Ark., 4 S.W.(2d) 910, is as follows: "The two railroads intersect at Hoxie, and passengers leave the trains of each railroad before the train crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are, of necessity, required to walk quite a distance. Under the circumstances of this peculiar case, in the opinion of this court, the order of the Arkansas Railroad Commission does not appear unreasonable or arbitrary. It is claimed that the construction of sheds at Hoxie would require an unreasonable outlay by the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies, on the approval of the Railroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Railroad Commission is not arbitrary or unreasonable, and will therefore be affirmed." St. Louis-S. F. R. Co. v. Albright, 176 Ark. 761, 4 S.W.(2d) 910. From the judgment in the circuit court, both appellants prosecuted an appeal, and the case was affirmed by this court on the 26th day of March, 1928.

In the present case the state introduced the order of the Railroad Commission requiring the companies to build sheds, and also introduced the secretary of the commission and one of the commissioners. As we have already said, the case was appealed to the circuit court, where the judgment of the justice of the peace was affirmed, and this appeal is prosecuted to reverse the judgment of the circuit court.

At the conclusion of the testimony in the circuit court the appellants moved a dismissal of the causes for the reason that section 1640 of Crawford & Moses' Digest had not been complied with. That section reads as follows:

"Filing Copies of Findings. The Corporation Railroad Commission shall file a copy of their findings and decrees with the secretary of state, the Attorney General, the circuit clerk of the county wherein such decree is granted and shall serve notice upon defendant railroad company by delivering a copy of its findings and decrees to the nearest local station agent, and by sending by registered mail a copy to the superintendent, general manager, lessee or operator of such railroad or railroad company."

It is insisted that under this section, requiring the Railroad Commission to file a copy of its findings and decree, as provided in said section, the order of the Railroad Commission could not become effective. Section 1638 of Crawford & Moses' Digest provides for petitions. Section 1639 provides for inspections. It requires the Corporation Commission to make personal inspection of conditions, make investigation, take testimony, and provides that the findings of the commission shall be binding upon all railroads within the state of Arkansas. Then follows the section above quoted.

The Railroad Commission, under section 1639 of Crawford & Moses' Digest, can make the inspection and investigation, make its findings, and file them as above mentioned, without giving any notice to anybody. If it does that, of course, it would then have to give notice to the railroad company of what it had done. But the sections referred to by appellant, requiring the commission to file a copy of its findings, are wholly unnecessary in this case, because, instead of making the investigation and filing copies, the Railroad Commission had a hearing, at which both appellants were present and participated in the trial or hearing.

Section 1641, providing a penalty for violation of the order of the commission, contains this proviso: "Provided, no order for doing anything hereinabove provided shall be made by such commission until all parties concerned shall have received ten days' notice of such proposed change." It is undisputed that the appellants had the 10 days' notice. There is no controversy about that. They not only had the notice, but they were present, as we have said, and defended, and both sides introduced evidence. When there was a finding against them, they appealed to the circuit court, and then to this court, where the judgment of the circuit court was affirmed.

Appellant calls attention to and relies on a statement in 20 R. C. L. 343. In section 6 of the same article in R. C. L., and in the same volume, following the section quoted by appellant, is the following: "Generally a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind could and did take cognizance of it. And of course when a person knows of a thing he has `notice' thereof, as no one needs notice of what he already knows. While extra judicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notices obtained in any other manner."

In 21 R. C. L., under the head of "process," the questions of the nature, issuance, requisites, and validity of the process are discussed, and, among other things, it is stated on page 1263: "But notice is for the sole benefit of the defendant to afford him an opportunity of being heard on the claim or the charges made against him. It is not required for the protection of the plaintiff. Moreover, a party may waive his right to have a suit begun against him by process, and he does so by making a voluntary appearance, or by authorizing another to appear for him."

The only purpose of the sections of the statute relied on by appellants is to give the appellants notice, so that they may have a hearing. And the proof in this case shows, not only...