St. Louis-San Francisco Railway Co. v. State Use Craighead County

• Decision Date: 13 October 1930
• Docket Number: 169
• Citation: 31 S.W.2d 739,182 Ark. 409
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. STATE USE CRAIGHEAD COUNTY
• Court: Arkansas Supreme Court

31 S.W.2d 739

182 Ark. 409

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. STATE USE CRAIGHEAD COUNTY

No. 169

Supreme Court of Arkansas

October 13, 1930

Appeal from Craighead Circuit Court, Jonesboro District; W. W Bandy, Judge; affirmed.

Judgment affirmed.

E. T Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

S. L Gladish and A. W. Young, for appellee.

OPINION

BUTLER, J.

The town council of the town of Bay, under the general powers conferred by § 4006 of Crawford & Moses' Digest, established a street in the town in such a manner as to cross the roadbed and track of the St. Louis-San Francisco Railway Company and filed a petition under § 4009 in the Craighead Circuit Court. The hearing of the petition was set down by the court for June 25, 1929, at which time the railway company appeared and contested the proceeding on the ground that the town council no longer had authority to make the order establishing the street so that it would cross its roadbed, and that this authority had been divested by act of the Legislature, approved March 29, 1913, now § 1645 of Crawford & Moses' Digest. From a judgment adverse to appellant's contention it appealed to this court, which appeal resulted in an affirmance of the judgment of the circuit court on February 3, 1930. St. L. S. F. Ry. Co. v. Bay, 180 Ark. 1040, 23 S.W.2d 968.

On July 22 following the judgment of the circuit court, the town council gave notice to the railway company as provided by § 8484 of Crawford & Moses' Digest, requiring it to construct a crossing on and over its tracks as prescribed by § 8483, Ib. The twenty days within which it was required to construct a crossing after notice having expired, notice of that fact was filed with the clerk of the county court and by him communicated to the prosecuting attorney, who brought this suit to enforce the provisions of § 8486 providing for a penalty of not less than one hundred nor more than two thousand dollars for failure or refusal to construct the crossing, and $ 5 for every day such refusal or neglect should continue after the expiration of the twenty-day notice. This suit was filed on September 10, 1929, and summons served on defendant on September 13, 1929. An answer was filed by the railway company, the date of such filing not being given in the record. On the 21st day of February, 1930, the cause came on before the court sitting as a jury upon the pleadings and an agreed statement of facts, and a penalty was fixed in the sum of $ 100. The court found that 189 days had elapsed during which the railway company had failed and refused to comply with the order requiring it to construct a crossing, and judgment was rendered for the said $ 100 and for a further penalty of $ 5 per day for 189 days, making a total of $ 1,045, from which judgment is this appeal.

It is the contention of the appellant that the trial court erred in assessing a penalty against it because at the time of the filing of its suit an appeal was pending in this court in the case of St. Louis-San Francisco Ry. Co., appellant, v. Town of Bay, appellee, and that no right accrued to the appellee in this case to have any penalty assessed until after the case of Railway Co. v. Town of Bay, supra, had been decided and the mandate of this court handed down, and that the entering of a judgment for the penalty was a taking of the defendant's property without due process of law and in violation of the Federal Constitution. It is insisted by the appellant that the appeal in the case of Railway Company v. Town of Bay, supra, suspended and totally eliminated the charging of the railway company in the instant case with a penalty for not constructing the crossing under notice given by the town of Bay, and it further insists that the statute authorizing the collection of penalties was one from which no appeal was provided, and is itself void because its effect would be to deprive the appellant of its property without due process of law. This latter contention is refuted by the action of the appellant in the instant case, for here it has appealed and rightfully so under the general statute granting the right of appeal in all cases; and, as the Legislature did not attempt specifically or by any reasonable inference to debar or prevent an appeal, it must be deemed to have had in mind the general laws relating to appeals and intended that those should govern.

To sustain its contention that to enforce the penalty against the railroad company will deprive it of its property without due process of law, a number of cases are cited and extensively quoted, and it is insisted that the holding in those cases established appellant's contention under the facts in the case at bar. It cites S. W. Tel. & Tel. Co. v. Danaher, 238 U.S. 482, 491, 35 S.Ct. 886, 59 L.Ed. 1419, which case involved the validity of the statute imposing a penalty of $ 100 per day against the telephone company for denial of its service where such denial was the result of a rule promulgated by it. This rule was held by this court to be unreasonable, and the penalty properly assessed. In reversing that decision, the Supreme Court of the United States, speaking through Mr. Justice VANDEVENTER, said: "If it be assumed that the State Legislature could have declared such a regulation unreasonable, the fact remains that it did not do so, but left the matter where the company was well justified in regarding the regulation as reasonable and in acting on that belief." Continuing, the court said: "There was no intentional wrongdoing, no departure from any prescribed or known standard of action, and no reckless conduct. Some regulation establishing a mode of inducing prompt payment of the monthly rentals was necessary. It is not as if the company had been free to act or not, as it chose. It was engaged in a public service which could not be neglected. The protection of its own revenues and justice to its paying patrons required that something be done. It acted by adopting the regulation and then impartially enforcing it. There was no mode of judicially testing the regulation's reasonableness in advance of acting under it."

The next case relied upon by the appellant here is that of Oklahoma Operating Company v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596, which was an appeal involving the enforcement of rate fixing orders made by the State Corporation Commission of Oklahoma. In holding the order invalid on constitutional grounds, the court reached its conclusion on the ground that "it appears that the only judicial review of an order fixing rates possible under the laws of the State was that arising in proceedings to punish for contempt. The Constitution endows the commission with the powers of a court to enforce its order...