State of Missouri ex rel. Barton Co. v. Kansas City, Ft. S. & G.R. Co.

• Decision Date: 01 October 1887
• Citation: 32 F. 722
• Court: U.S. District Court — Western District of Missouri
• Parties: STATE ex rel. BARTON CO. v. KANSAS CITY, FT. S. & G.R. CO.

32 F. 722

STATE ex rel. BARTON CO. v. KANSAS CITY, FT. S. & G.R. CO.

United States Circuit Court, W.D. Missouri, Western Division.

October, 1887

Botsford & Williams, for plaintiff.

Pratt McCrary & Ferry and C. W. Blair, for defendant.

BREWER J.

In 1881, the legislature of the state of Missouri passed an act affecting railroads, which, so far as is material to this case, reads:

'Every railroad corporation in this state which now is, or may hereafter be, engaged in the transportation of passengers or property * * * shall at all crossings and intersections of other railroads where such other railroad and the railroad crossing the same are now, or hereafter may be, made upon the same grade, and the character of the land at such crossing or intersection will admit of the same, erect, build, and maintain, either jointly with the railroad company whose road is crossed, or separately by each railroad company, a depot or passenger house, and waiting room or rooms sufficient to comfortably accommodate all passengers waiting the arrival and departure of trains at such junction or railroad crossing, and shall keep such depot or passenger house warmed, lighted, and open to the ingress and egress of all passengers a reasonable time before the arrival and until after the departure of all trains carrying passengers of said railroad or railroads. * * * Every railroad corporation or company who shall fail, neglect, or refuse to comply with the conditions of this section from and after the first day of July, 1881, shall, for each day said corporation or railroad company refuses, neglects, or fails to comply therewith, after said day, forfeit and pay the sum of twenty-five dollars, which may be recovered in the name of the state of Missouri to the use of the school fund of the county wherein said crossing is situated; and it shall be the duty of the prosecuting attorney to prosecute for and recover the same. ' Laws 1881, p. 77.

In Barton county the defendant's road crosses the Missouri Pacific Railroad, and, it having failed at such crossing to build the depot as required by this section, this action was commenced in February, 1885, by the prosecuting attorney of that county, to recover the penalties therefor. The amended petition is in 1,338 counts, each count seeking to recover the penalty for one day's failure to build a depot, commencing with July 2, 1881, and ending at the commencement of the suit. A demurrer has been filed to each and every count of this petition, and various questions have been argued with great ability and learning by counsel.

The first question is as to the constitutionality of the act. Statutes of this nature, when sustainable, are sustainable under the police power of the state, and in discussing questions of this nature we are confronted at the outset with the fact that no one knows the limits of the police power. Many attempts have been made to define it, and prescribe its boundaries, but none as yet have been so successful as to meet general approval. Even so learned a tribunal as the supreme court of the United States declined to attempt a definition, and held that the limits of the power could be more safely determined by the process of inclusion and exclusion, as the various cases involving its assertion should arise. It is a power affecting the public health, the public safety, and the public welfare. By reason of its undetermined extent it is the bete noire of courts. Omne ignotum pro magnifico. Hence in many cases the assertion of its extent is yielded to without question. But the power has limits; some are recognized and established, others, doubtless will be from time to time. One is that the police power of the states is limited by the express prohibitions in the federal constitution upon a state's action. For instance, the state may regulate fares and freights, but inasmuch as the regulation of interstate commerce is vested in the general government, the state's police power to regulate freights and tariffs does not extend to interstate commerce. Railway Co. v. Illinois, 118 U.S.

557, 7 S.Ct. 4. Again, while the states may, in the exercise of their police power, prohibit the manufacture and sale of intoxicating liquors, they cannot, in view of the fourteenth amendment, extend such power to the destruction of private property invested before the passage of any prohibitory enactment in breweries or distilleries. State v. Walruff, 26 F. 178. So, I think though without attempting to formulate a rule therein, a distinction will be drawn between cases in which the police power is invoked simply to regulate the use of property, and those in which a demand is made for the expenditure of money. It is one thing to require a railroad company to stop its trains at a given point, it is another to require it to go to the expense of building a depot at that point. One means nothing but the manner of use, the other calls for an outlay of money. Much larger liberty will be accorded to the legislature in the one direction than in the other. I do not mean to assert that the police power does not extend to any cases of the latter nature; I simply affirm that the courts will put narrower boundaries upon an attempted exercise in this direction. My first thought on the examination of this statute was that this distinction was operative here, and would compel an adjudication against the validity of the statute. I still have doubts of its validity, but as the rule is that questions of doubt must be resolved in favor of the constitutionality of a statute, I am constrained to hold that this act is a valid exercise of the police power of the state. That it is so valid has been affirmed by one of the judges of the supreme court of this state in the case of State v. Railway Co., 83 Mo. 144. It is true that no decision was made by the court on this question, the case going off on another matter, but the opinion of so distinguished a jurist as Judge NORTON is entitled to great weight. If the supreme court of the state had affirmed its validity, doubtless such decision would be conclusive on the federal courts, unless in their judgment some provision of the federal constitution was infringed upon by the statute.

It is no longer doubted that the legislature may require that trains shall stop at every railroad crossing. Public safety justifies, if it does not compel this. If the legislature may require a stop, why may it not require a stop of sufficient length to permit passengers to get on and off, and with that require suitable depot privileges? It will be noticed that the statute does not attempt to prescribe the size or expense of these depots; it leaves that to the discretion of the railroad companies, simply requiring that they shall be sufficient to comfortably accommodate passengers at that point. It would seem to be a reasonable exercise of the police power to...