State v. International & G. N. Ry. Co.

• Decision Date: 20 March 1914
• Citation: 165 S.W. 892
• Parties: STATE v. INTERNATIONAL & G. N. RY. CO.
• Court: Texas Court of Appeals

165 S.W. 892

STATE v. INTERNATIONAL & G. N. RY. CO.

Court of Civil Appeals of Texas. Galveston.

March 20, 1914.

Rehearing Denied April 9, 1914.

Appeal from District Court, Harris County; Charles E. Ashe, Judge.

Suit by the State, to recover a penalty for the violation of Act 32d Leg. requiring those engaged in constructing or repairing railroad cars to furnish shelter for workmen. From an order sustaining the demurrer and dismissing the petition, the State appeals. Affirmed.

B. F. Looney, Atty. Gen., Luther Nickels, Asst. Atty. Gen., and Charles Murphy, of Houston, for the State. Wilson, Dabney & King, of Houston, for appellee.

PLEASANTS, C. J.

This suit was brought by the appellant against the appellee to recover penalties for the alleged violation by appellee of the provisions of an act of the Thirty-Second Legislature (articles 6581, 6582, and 6583, Revised Statutes 1911), requiring every person, corporation, or receiver engaged in constructing or repairing cars to erect and maintain a building or shed for the shelter and protection of the workmen employed in such work. The trial court sustained a general demurrer to the petition, and, plaintiff declining to amend the suit was dismissed.

The learned trial judge prepared in writing and filed his reasons for sustaining the demurrer, which we here copy from appellee's brief:

"This suit is brought by the state to recover penalties for alleged violation of a general statute passed at the called session of the Thirty-First Legislature. 4th Ex. Sess., c. 6.

"Section 1 of the act in question reads as follows: `That every person, corporation or receiver engaged in constructing or repairing railroad cars, trucks or other railroad equipment, shall erect and maintain a building or shed at every station or other point where as many as five men are regularly employed for such repair work, the building or shed to cover a sufficient portion of its track so as to provide that all men regularly employed in the construction and repair of cars, trucks, or other railroad equipment, shall be sheltered from rain and protected from other inclement weather. The provisions of this act shall not apply to points where less than five men are regularly employed in the repair service, nor at division terminals, or other points where it is necessary to make light repairs only, on cars, nor to cars loaded with time or perishable freight, nor to cars when trains are being held for the movement of said cars.'

"Section 2 of said act reads as follows: `Any person, corporation or receiver, who shall violate the provisions of this act, shall be liable to the state of Texas for a penalty in any sum not less than fifty dollars nor more than one hundred dollars, and each ten days of such failure or refusal to comply with the provisions of this act shall be considered a separate infraction, authorizing the recovery of a separate penalty.'

"The defendant enters a general demurrer to the state's petition, and contends that this act is too indefinite in its terms to be enforceable, as the term `light repairs' is a relative term, and wholly unintelligible.

"Article 1, § 10, of the Constitution of Texas, provides that: `In all criminal prosecutions, the accused shall have the right to demand the nature and cause of the action against him.'

"Article 6 of the Penal Code of Texas provides that: `Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the state, such penal law shall be regarded as wholly inoperative.'

"In G., C. & S. F. Railway Co. v. Dwyer, 84 Tex. 200, 19 S. W. 471, the Supreme Court of this state says that: `Every man is presumed to know the law, and it would seem that before any one should be punished, either in a criminal or a civil action, for an act claimed to be penal, the offense should be clearly defined, and that any grave doubt as to the intention of the Legislature should be resolved in favor of the defendant.'

"In Chicago & Northwestern Railway v. Dey (C. C. S. D. Iowa) 35 Fed. 876, 1 L. R. A. 744, a statute which attempted to penalize the railway company for charging `unreasonable rates' was contended to be too indefinite for enforcement. In passing upon this question, Judge Brewer, later one of the judges of the Supreme Court of the United States, in rendering the decision, said: `If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.'

"Later, in the case of Tozer v. United States (C. C. E. D. Mo., N. D., 1892) 52 Fed. 917, the same judge, in passing upon the undue preference clause of the Interstate Commerce Act, speaking for the court, said: `In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty'—and cites his opinion in the Dey Case, with other authorities, including Ex parte Jackson, 45 Ark. 158, and textbooks on statutory construction.

"In L. & N. R. R. Co. v. Commonwealth (1896) 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457, the court, in an exhaustive and thoroughly considered opinion, held that a statute of the state, providing that, `If any railroad corporation shall charge, or collect more than a just and reasonable rate of toll for the transportation of freight or passengers, it shall be guilty of extortion, and fixing a penalty therefor,' was void for uncertainty, and in violation of both the state and federal Constitutions against the taking of property without due process of law, in that it fails to prescribe a standard as to what is just and reasonable, by which the carrier was to regulate its conduct. This cites with approval the Dey and Tozer Cases, decided at circuit by Judge Brewer, and also L. & N. Railway Co. v. Commissioners of Tennessee (C. C.) 19 Fed. 693, construing a like statute, and says that the Supreme Court of the United States, in Railway Commission Cases, 116 U. S. 336, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636, refers to the Tennessee case just cited, and substantially approves it, by distinguishing the cases before the court from the Tennessee case. In this case the Kentucky court further says that: `No case can be found, we believe, where such indefinite legislation has been upheld by any court when a crime is sought to be imputed to the accused.'

"In Waters-Pierce Oil Co. v. Texas, 212 U. S. 109, 29 Sup. Ct. 226, 53 L. Ed. 417, the United States Supreme Court distinguishes the Kentucky case just cited from the case in hand, and says that: In the Kentucky case, `it was held that the law was unconstitutional, for under such an act it rests with the jury to say whether a rate is reasonable, and makes guilt depend, not upon standards fixed by law, but upon what a jury might think as to the reasonableness of the rate in controversy.'

"In Augustine v. State, 41 Tex. Cr. R. 72, 52 S. W. 81, 96 Am. St. Rep. 765, the Court of Criminal Appeals of Texas held, in passing upon a statute which provided that `whenever two or more persons shall combine together for the purpose of mob violence, and in pursuance of such combination shall unlawfully and willfully take the life of any reasonable creature in being, by such violence, such persons shall be deemed guilty of murder by mob violence, and upon conviction thereof, shall be punished,' etc., that the statute was unenforceable because too indefinite. In discussing the case the court says that a statute of this kind must be capable of intelligent construction and interpretation, otherwise it will be inoperative and void, and cites with approval the following from Black on Interpretation of Laws: `The court must use every authorized means to ascertain and give it an intelligible meaning; but if, after such effort, it is found to be impossible to solve the doubt and dispel the obscurity, and if no judicial certainty can be settled upon as to the meaning, the court is not at liberty to explain or make one. The court may not allow conjectural interpretation to usurp the place of judicial exposition. There must be a competent and efficient expression of the legislative will. * * * If the terms in which a statute is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either...