State v. Corvallis & E.R. Co.

• Decision Date: 19 September 1911
• Citation: 117 P. 980,59 Or. 450
• Parties: STATE v. CORVALLIS & E.R. CO.
• Court: Oregon Supreme Court

117 P. 980

59 Or. 450

STATE v. CORVALLIS & E.R. CO.

Supreme Court of Oregon

September 19, 1911

Appeal from Circuit Court, Linn County; Geo. H. Burnett, Judge.

Suit by the State of Oregon against the Corvallis & Eastern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover a penalty for failure to comply with an order of the Railroad Commission. The complaint states in effect that the defendant is, and at all times therein alleged was, a private corporation owning and operating a railroad extending from Yaquina, Or., to Detroit, in this state, its line of railway passing through the town of Lyons which latter village "is a regular station"; that certain named persons, constituting the Railroad Commission of Oregon, in a proceeding before them, wherein T.E. Wall and others were complainants and the defendant herein was defendant, made an order, July 21, 1908, after due hearing and consideration, that the defendant build and maintain at Lyons a depot containing a waiting room for passengers and a room for freight in less than car load lots, containing in such apartments not less than 150 and 250 square feet respectively; to erect and maintain separate toilets, or a toilet building with separate compartments; and also to engage and keep employed at that station a caretaker, with whom the public might transact business relating to the transportation of freight and passengers, which improvements were required to be made and the servant employed within 45 days after the service upon the defendant of such order which was duly made July 22, 1908; that, though more than the time so limited had expired, the defendant had failed and refused to comply with such demand, in consequence of which it had become liable to the plaintiff in the sum of $10,000 for which judgment was demanded. A demurrer to the complaint, on the ground that it did not state sufficient facts, and that the court did not have jurisdiction of the subject of the action, was overruled. An answer and a reply put in issue the facts averred by the respective parties, whereupon a trial was had, and, a judgment for the sum of $200 having been rendered against the defendant, it appeals.

J.K. Weatherford, for appellant.

A.M. Crawford, Atty. Gen. (I.H. Van Winkle, Asst. Atty. Gen., and W.P. Lord, Jr., on the brief), for the State.

MOORE J. (after stating the facts as above).

It is maintained that in overruling the demurrer an error was committed. It is argued that as the complaint fails to aver that defendant maintained an agent at Lyons plaintiff's primary pleading does not state facts sufficient to constitute a cause of action. Section 22 of the railroad commission act, so far as deemed to be involved on this branch of the inquiry, is as follows: "It shall be the duty of every railroad to provide and maintain adequate depots and depot buildings, and clean and suitable toilet rooms, or buildings at its regular stations where an agent is maintained." Laws Or. 1907, p. 75. As we view the quoted language, a "regular station" is a place established by a railroad company on the line of its railway where some or all trains are regularly halted to receive and discharge passengers and freight, and where, for the transaction of business, the carrier keeps an agent with whom the public is authorized to deal. 26 A. & E.Ency. (2d Ed.) 495; Land v. Wilmington & Weldon R. Co., 104 N.C. 48, 10 S.E. 80. The clause, "where an agent is maintained," adds nothing to the phrase, "at its regular stations." It seems, however, to explain the meaning of the latter term. It is reasonably to be implied from the averment that Lyons is a regular station on the railroad, that the defendant maintains at that place an agent for the accommodation of passengers, etc., and is tantamount to an allegation to that effect. The complaint is sufficient in that particular.

It is contended that because the volume of business transacted by the defendant at Lyons is not given, nor is it averred that the erection and maintenance of any railroad buildings at that place are necessary, the complaint is insufficient. Section 31 of the act under consideration declares that any service prescribed to be rendered by the commission shall be prima facie reasonable, until finally found to

be otherwise, in an action brought for that purpose. Section 32 provides that any railroad interested in or affected by an order of the commission, being dissatisfied therewith, may commence a suit against the commissioners as defendants, to vacate and set aside such order on the ground that the service demanded is unreasonable. It will be noted that the reasonableness of an order of the commissioners, prescribing any service, can only be challenged by a railroad company, in a suit instituted for that purpose by it as plaintiff against the commissioners as defendants. As the order fixing the service to be performed is prima facie reasonable, it was unnecessary to allege that fact in the complaint, or to aver that the erection and maintenance of a depot at Lyons was essential, or to state the volume of railroad business transacted at that place.

It is insisted that the court did not have jurisdiction of the cause, for that the railroad commission act attempts to delegate to the commissioners legislative, executive, and judicial powers, in contravention of article 3 of the Constitution of Oregon, and such being the case an error was committed in overruling the demurrer. That part of the organic act referred to is as follows: "The powers of the government shall be divided into three separate departments--the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided." A brief reference to some of the provisions of the statute in question, in addition to the sections hereinbefore adverted to, is necessary to understand the legal principle involved. The act in force when this case was tried creates a commission, consisting of three persons, collectively known as the Railroad Commission of Oregon. Section 1. The term "railroad" as used therein is defined. Section 11. Every such railroad is required to furnish reasonably adequate service, equipment, and facilities. Section 12. It is incumbent upon every railroad to provide and maintain suitable depot buildings and clean toilet rooms at its regular stations. Section 22. Upon complaint of any person that any service appertaining to the transportation of persons or property is inadequate, the commission may notify the railroad company informed against that complaint has been made, and 10 days after such notice has been given the commission may investigate the charge, compelling the attendance of witnesses and the production of books and papers. If upon such examination the service shall be found to be insufficient, the commission is empowered to make such orders respecting the matter as shall be determined to be reasonable, which regulation shall be observed and followed in the future. Section 28. If any railroad shall fail, neglect, or refuse to obey any order made by the commissioners, for every such violation it shall forfeit and pay into the state treasury a sum not less than $100 nor more than $10,000 for such offense. Section 53. Any forfeiture or penalty so prescribed may be recovered by an action brought thereon in the name of the state of Oregon. Section 57. It will thus be seen that the Railroad Commission of Oregon is required to receive complaints of certain matters, when properly made against a railroad company for a violation of any of the duties enjoined by the statute, to give notice thereof to the company, to set the cause for hearing, to determine the issues involved, and to make the necessary orders in the premises. Does an exercise of the powers so granted trench upon article 3 of our Constitution?

As a preliminary matter, it may be said that the provisions of a written constitution, distributing legislative, executive and judicial powers to different departments and the emphatic declaration in the fundamental law that each branch must be kept separate, were evidently designed to establish and perpetuate an independent commonwealth. "The safety of free government," says Mr. Justice Vann, in People ex rel. v. Howland, 155 N.Y. 270, 282, 49 N.E. 775, 779 (41 L.R.A. 838), "rests upon the independence of each branch and the even balance of power between the three. Unite any two of them, and they will absorb the third, with absolute power as a result. Weaken any one of them by making it unduly dependent upon another, and a tendency toward the same evil follows. It is not merely for convenience in the transaction of business that they are kept separate by the Constitution, but for the preservation of liberty itself, which is ended by the union of the three functions in one man, or in one body of men. It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others." To the same effect, see Story, Const. (5th Ed.) §§ 520 and 521, where he states that Montesquieu seems to have been the originator of the political maxim of the division of the three great powers of government. Judge Story, at section 527 of the text-book mentioned, referring to the distribution of such powers, remarks: "Indeed, there is not a single constitution of any state in the Union, which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it." As illustrative of the rule and the...