State Board of Education v. Mobile & O. R. Co.

• Decision Date: 07 January 1895
• Citation: 72 Miss. 236,16 So. 489
• Parties: STATE BOARD OF EDUCATION v. MOBILE & OHIO RAILROAD CO
• Court: Mississippi Supreme Court

16 So. 489

72 Miss. 236

STATE BOARD OF EDUCATION v. MOBILE & OHIO RAILROAD CO

Supreme Court of Mississippi

January 7, 1895

FROM the circuit court of Lee county. HON. NEWNAN CAYCE, Judge.

Section 1050, code 1880, is as follows: "Every such [railroad] company shall cause a board to be erected and kept up upon a post or frame sufficiently high, at every place where the railroad may cross a highway, with this inscription 'Look out for the locomotive;' and, on failure to observe the three last provisions, such company shall be liable to a fine of fifty dollars for each failure, and such offense shall be cognizable before any justice of the peace of the county. A failure to erect the board, as directed shall be deemed to have occurred on every day the company may continue so to fail or neglect to have the same set up; and moreover, such company shall be liable to any party injured by such failure or neglect for all damages that such party may have sustained thereby."

The state board of education brought this action in August, 1892 against the Mobile & Ohio Railroad Co., seeking to recover a large sum alleged to be due as fines accrued under the above-quoted section of the code of 1880. Defendant demurred to the declaration. The cause was before this court at the October term, 1893, on an appeal by the plaintiff from a judgment sustaining a demurrer to the declaration and dismissing the cause, and the judgment of the court was reversed. See Board of Education v. Railroad Co., 71 Miss. 500. On the return of the case to the lower court, defendant filed many pleas, but the opinion of the court renders it unnecessary to notice any of them except the sixth, which averred a substantial compliance with the statute. The facts throwing light on this issue sufficiently appear in the opinion. Plaintiff's demurrer to the sixth plea was overruled, and plaintiff having declined to reply thereto, the court directed judgment final for the defendant, and plaintiff appeals.

Affirmed.

Clarke & Clarke, for appellant.

The language of § 1050, code 1880, is clear and unambiguous, and does not admit of construction. It admits of but one meaning, and the courts cannot construe it so as to give it another. 23 Am. & Eng. Enc. L., 298-305; 2 Cranch, 386; 6 Wall., 395; 5 Wheat., 95; 95 Am. Dec., 152; 63 Ib., 139; 19 Ib., 375; 130 U.S. 674; Carson v. Carson, 40 Miss. 349; Potter's Dwarris on Statutes, 206, 207. The statute is mandatory. Koch v. Bridges, 45 Miss. 247.

J. A. Blair, Allen & Robins, J. L. Finley and E. L. Russell, for appellee.

The sixth plea sets up a substantial and sufficient compliance with the statute. The statute only requires that the post shall be sufficiently high, and that there shall be a board bearing the required inscription. These are the meager details. It cannot be contended that any board, however small, with the inscription however inconspicuous, would constitute a substantial compliance with the statute. There would be, perhaps, a literal compliance, but the purpose would be incomplete. Violating the spirit of a law by pretending to respect the letter, is a fraud no less criminal than an open violation of it. It is not less contrary to the intention of the legislature, and only shows a more artful and more deliberate malice. Dwarris on Statutes, 129. The sign used by defendant as fully reveals to a person approaching the crossing the whole situation as if he stood upon the crossing himself. A party may not disregard the law or substitute his own wisdom or device for its requirements, but we contend that, in the present case, the statute was complied with in substance and inspirit. Where the expression in a statute is particular, but the reason is general, the expression should be deemed general also. 1 Kent Com., 462; Bank v. Archer, 8 S. & M., 851.

The law is highly penal, and should be strictly construed in favor of the citizen. 23 Am. & Eng. Enc. L., 375; 1 Bishop Crim. L., §§ 224, 225; Dwarris on Statutes, 130. Statutes are construed with reference to the exigency calling them forth, the evils that existed and the remedy proposed by law. 45 Miss. 154.

On the general subject, see Railroad Co. v. Hemphill, 35 Miss. 21; 30 Ib., 410; 26 Ib., 439; 3 How. (U.S.), 558; 5 Cranch, 3; 1 Pick., 248; 57 Am. Rep., 623; 63 Am. Dec., 139; 74 Ib., 522.

The plea was to the whole declaration. It was held good, and, as plaintiff declined to reply, it was proper to render judgment final. Tittle v. Bonner, 53 Miss. 583; Lampkin v. Nye, 43 Ib., 241; Evans v. Miller, 58 Ib., 120; Code 1892, §§ 671, 681.

OPINION

WOODS, J.

What was the object and intention of the lawmaking power in the enactment of § 1050, code 1880? The object was to give greater security from perils by moving locomotives or trains to travelers at railroad crossings over highways. The intention was to require the railroad companies to give permanent warning of perils from collisions at crossings to the traveling public. The railroad companies were to be required to keep standing a suitable and simple device or signal of danger, that all who approached might be admonished of the peril of heedlessly going upon the track.

It is familiar learning that, in the construction of statutes courts chiefly desire to reach and know the real intention of the framers of the law, and, reaching and knowing it, then to...