St. Louis Southwesters Railway Company v. State

• Decision Date: 16 December 1907
• Citation: 107 S.W. 1180,85 Ark. 311
• Parties: ST. LOUIS SOUTHWESTERS RAILWAY COMPANY v. STATE
• Court: Arkansas Supreme Court

107 S.W. 1180

85 Ark. 311

ST. LOUIS SOUTHWESTERS RAILWAY COMPANY v. STATE

Supreme Court of Arkansas

December 16, 1907

Appeal from Arkansas Circuit Court; Eugene Lankford, Judge affirmed.

The prosecuting attorney, under direction of the Railroad Commission of Arkansas, brought suit against the St. Louis Southwestern Railway Company to recover the statutory penalty for failure to furnish cars to shippers. The complaint alleges that the Railroad Commission adopted the following order:

"Office of Railroad Cominission of Arkansas, Order No 305, effective August 5, 1905.

"It is ordered by the Commission that its rules be so amended that when a shipper makes written application to a railroad company for a car or cars, to be loaded with any kind of freight embraced in the tariff of said company stating in said application the character of the freight and its final destination, the railroad company shall furnish same within five days from 7 o'clock A. M. the day following such application. Provided, that when a shipper orders a car or cars and does not use the same, he shall pay demurrage for such time as he holds the car or cars, at the rate of $ 1 per car per day, dating from 7 A M. after car or cars are placed. Or, when the shipper making such application specifies a future day on which he desires to make a shipment, giving not less than five days' notice thereof, computing from 7 o'clock A M. the day following such application, the railroad company shall furnish such car or cars on the day specified in the application. When freight in carloads or less is tendered to a railroad company, and correct shipping instructions given, the railroad agent must immediately receive the same for shipment, and issue bills of lading therefor, and whenever such shipments have been so received by any railroad company, they must be carried forward at the rate of not less than fifty miles per day of twenty-four hours, computing from 7 o'clock A. M. the second day following receipt of shipment. Provided that, in computing the time of freight in transit, there shall be allowed twenty-four hours at each point where transferring from one railroad to another, or rehandling freight is involved. The period during which the movement of freight is suspended on account of accident, or any cause not within the power of the railroad company to prevent, shall be added to the free time allowed in this rule, and counted as additional free time.

"The Commission reserves the right on its own motion to suspend the operation of these rules, or any one or more of them, in whole or in part, whenever it shall appear that justice demands such action, and the Commission will, upon complaint, hear and act upon applications for a like suspension.

"Nothing in these rules shall apply to shipment of live stock and perishable freight where the rules of this Commission or the laws of the State require the more prompt furnishing of cars or movement of freight than provided for by these rules. "

By order of the Commission.

"Little Rock, Ark., July 19, 1905.

"W. E. FLOYD, Secretary."

The complaint alleges further that Phillip Reinsch was engaged in selling and shipping hay in carload lots, and at stated times from October 30, 1905, to January 20, 1906, had made demands upon defendant to furnish cars for shipping hay, the number of cars aggregating fifty-one in number; that said cars were to be furnished within five days from demand; that, in violation of Order 305, defendant refused to furnish said cars; that thereupon Reinsch filed complaint with the Railroad Commission, and upon a hearing the Commission adjudged that the railway company was in default, and directed the prosecuting attorney to bring this suit to recover the statutory penalty. The prayer of the complaint was that the plaintiff ought to recover the maximum penalty of $ 1,950.

Defendant demurred to the complaint (1) as not stating a sufficient cause of action and (2) because the order of the Railroad Commission was unreasonable and void. The demurrer was overruled.

The answer set up that defendant was unable to furnish the cars demanded by Reinsch because of an unusual and unexpected demand of cars for the shipment of freight at that season.

The evidence is sufficiently set out in the opinion. There was a verdict for the plaintiff in the sum of $ 1,375. Defendant has appealed.

Judgment affirmed.

S. H. West and Bridges, Wooldridge & Gantt, for appellant.

1. The Commission was without Power to make the order, No. 305. There is nothing in the act of March 11, 1899, Kirby's Digest, § 6788 et seq., conferring power on the Railroad Commission to make a rule regarding, the furnishing of cars to shippers or enforcing a penalty for failure to comply therewith. The Commission is purely a creature of statute, and possesses no power except such as the statute expressly confers upon it. Its authority must affirmatively appear from the statute. 23 Am. & Eng. Enc. Law, 653; 154 U.S. 362; 17 Ore. 65; 66 Me. 25; 85 Md. 62; 32 Am. & Eng. R. Cas. (U. S.), 186. The Legislature could not constitutionally empower the Commission to go beyond the regulation of rates and prevention of discrimination. Art. 17, § 10, Const.; Amendment No. 4; 62 Cent. Law Jour. 199. Where limited jurisdiction is conferred by statute, and also where, as in this case, the suit is penal in its nature, the statute must be strictly construed. 54 Ark. 172; 59 Ark. 244; 67 Ark. 359; 70 Ark. 482; 64 Ark. 271.

2. The order is void, because (a), it is unreasonable. 201 U.S. 321; Tiedeman's Lim. Police Power, 594. (b) It is in conflict with State statutes. Kirby's Digest, §§ 6722, 6725, 6733. (c) It is a restriction on interstate commerce. 1 Int. Com. Rep. 689. While the State may, under its police power, make necessary provisions for the health, safety, comfort and convenience of its citizens which affect directly or indirectly, commerce among the States, yet this power is limited to reasonable regulations. Calvert, Reg. Commerce, 94; McGehee, Due Process of Law, 306; 163 U.S. 142; 201 U.S. 321; Freund, Police Powers, § 150.

(d) The effect of the order is the same as if it provided that in times of car shortage a carrier should apply all local demands before using any of its cars in interstate business. 202 U.S. 543. Congress having fully provided for the subject of furnishing cars, the regulations of the State Commission must give way thereto. Interstate Com. Act. § 3; Snyders, Am. Int. Com. Act, 69, 237, 238, 242; 158 U.S. 98; 76 Ark. 82.

3. It has been held that § 6804, Kirby's Digest, is but declaratory of the common law as to the duty of a carrier with reference to furnishing transportation facilities. 77 Ark. 357. And at common law as well as under the statutes a carrier is not required to provide in advance for any unprecedented and unexpected rush of business, and will be excused for delay in shipping, or even in receiving goods for shipment, until the emergency can in the regular and usual course of business be removed. Id.; 64 Ark. 271; 79 Ark. 59; 4 Elliott on Railroads, § 1470; 2 Hutchinson, Car. (3 Ed.), § 495; Moore, Car. 252; 6 Cyc. 372; 5 Am. & Eng. Enc. of L., 168; 52 S.E. 677; 37 N.W. 432; 14 Rich. Law, 181; 51 Mo, 311; 41 Tenn. 272; 99 S.W. 375; Beale & Wyman, Railroad Rate Reg., § § 263, 264.

4. Inasmuch as previous acts on the part of appellant could not properly be considered in determining whether or not it was negligent or inexcusable in this case, it was error to admit testimony as to the number of cars furnished or not furnished in previous years. 58 Ark. 125; Id. 454; 68 Ark. 225; 66 Ark. 494; 76 Ark. 302.

William F. Kirby, Attorney General, F. E. Brown, Prose-curing Attorney, Edwin Pettit and C. E. Pettit, for appellee.

1. The validity of the order of the Railroad Commission is not material to this suit, since this is an action to recover the penalty provided for in § 6813 Kirby's Digest, for failure to furnish cars to shippers as required by law. Kirby's Digest, § § 6803, 6804, 6817. But the order is a "rule and regulation to carry into effect a law already passed," and is valid. 9 Am. & Eng. R. Cas. 385; 55 Id. 498.

2. This suit is of the proper nature. In construing the Railroad Commission Act, effect should be given to all of its provisions, if possible. The "other penalty" referred to in § 6813 is that provided for in §§ 6812, 6821 and 6822, Kirby's Digest, and this is the only construction which will give effect to all the provisions of the act. That these words do not refer to the double damages allowed by § 6808 is indicated by § 6831. The double damages mentioned is not a penalty within the meaning of § 6813. 41 Ark. 324; 68 Ark. 440; 58 Ark. 407; 70 Ark. 228; 12 Pick. (Mass.), 99; 14 Ore. 55; 58 N.J.L. 273; 101 F. 900; 20 Me. 221; 31 Me. 532; 38 Me. 103; 3 App. Cas. 483.

3. Testimony was properly admitted to show number of cars furnished in other years, as tending to show shortage of cars due to an insufficient number for ordinary purposes; also to test the value of witness' testimony to the effect that there was an unusual demand and that there were sufficient cars for the ordinary demand of each year, and it was also admissible to contradict appellant's testimony as to comparative car shortages in 1903, 1904 and 1905.

4. Appellant is liable because the fifty-one cars mentioned in the proceedings were never furnished at any time, as is alleged in the complaint and not denied either in answer or proof. 77 Ark. 363.

5. That a carrier's cars are off of its line constitutes no legal excuse for failure to furnish cars to transport goods offered for shipment. 63 Ark. 326; 79 Ark. 61. A defense based upon cars loaned out and not returned is against public policy.

6. The Legislature has power to create a...