State v. Louisville & N.R. Co.

• Decision Date: 02 November 1911
• Docket Number: No. 21,807.,21,807.
• Citation: 96 N.E. 340,177 Ind. 553
• Court: Indiana Supreme Court
• Parties: STATE v. LOUISVILLE & N. R. CO.

177 Ind. 553

96 N.E. 340

STATE

v.LOUISVILLE & N. R. CO.

No. 21,807.¹

Supreme Court of Indiana.

Nov. 2, 1911.

Appeal from Circuit Court, Vanderburgh County; A. C. Hawkins, Judge pro tem.

An affidavit was filed against the Louisville & Nashville Railroad Company charging it with violation of the statute requiring locomotives to be equipped with automatic bell-ringing devices, and, from a judgment of acquittal upon granting a motion to quash the affidavit, the State appeals. Reversed and remanded, with directions to overrule motion to quash and for further proceedings.Thomas M. Honan, Thomas H. Branaman, Edward M. White, and James E. McCullough, for appellant. Philip W. Frey and George R. De Bruler, for the State.

MYERS, J.

An affidavit was filed in the city court of the city of Evansville against appellee under the act of March 8, 1909 (Acts 1909, p. 441), which, omitting the formal parts, alleged that the Louisville & Nashville Railroad Company, a corporation, on or about the 8th day of June, 1910, at said county, as affiant verily believes, did then and there unlawfully operate and use, and permit to be used, a certain locomotive upon its respective lines of railroad within said county and state, the said locomotive not being then and there properly equipped with an efficient automatic device for ringing the bell of such locomotive, etc. Appellee entered a plea of not guilty, and upon trial was fined $100, from which judgment it appealed to the Vanderburgh circuit court, where on its motion the affidavit was quashed, and the state excepted and prosecutes this appeal, predicating error of the court in that ruling.

It will be noted that the affidavit is drawn in the language of the statute. Appellee's contention is that the act is void for five reasons, which are chiefly urged in support of the insufficiency of the affidavit. They are that the act of 1909 is void for the reason that it attempts to govern railroads beyond the state of Indiana; that the affidavit is insufficient, because it is not averred that the locomotive engine was equipped with a bell, and therefore appellee could hereafter be prosecuted for failing to equip such locomotives with a bell, and thereby be punished twice for the same offense; that the act requires the performance of an impossibility, in that there is no such thing as an automatic device for ringing a bell, and hence it is void; that the act is void for indefiniteness and uncertainty, in that it requires the automatic device to be kept at all time in proper working order; that it is void for uncertainty and indefiniteness, in that it requires the automatic device to be efficient, and requires the locomotive to be properly equipped with such device.

[1] The title of the act is, “An act requiring all railroad companies within the state of Indiana to equip locomotive engines with an automatic bell ringer, providing penalties for its violation, and fixing the time for said act to become effective and be in force.” The act itself applies by its terms to railroads “operating within said state,” and if the language “operating within said state” is susceptible of a construction which would refer to railroads without the state, which would render it invalid, we would adopt the construction which would so limit its application as to render it valid, upon the theory that the Legislature intended to enact a constitutional law, and not one that is void, and that we will not declare an act invalid if there is any doubt about it. Smith v. Board, 173 Ind. 364, 90 N. E. 881;State v. Barrett, 172 Ind. 169, 87 N. E. 7;Pittsburgh, etc., Co. v. Railroad Commission, 171 Ind. 189, 86 N. E. 328;Kraus v. Lehman, 170 Ind. 408, 83 N. E. 714, 84 N. E. 769;McCleary v. Babcock, 169 Ind. 228, 82 N. E. 453;Cain v. Allen, 168 Ind. 8, 79 N. E. 201, 896;State v. Lowry, 166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 528;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313;Smith v. Indianapolis, etc., Co., 158 Ind. 425, 63 N. E. 849;Cleveland, etc., Co. v. Backus, 133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729;Bush v. City of Indianapolis, 120 Ind. 476, 22 N. E. 422;Hovey v. State, 119 Ind. 395, 21 N. E. 21;Clare v. State, 68 Ind. 17.

[2][3][4] The act could have no extra territorial effect, and does not by fair construction purport to do so, and we know judicially that, if such device can be arranged to be operated by railroads within the state, it need not be operated without the state, except at their option, and they cannot be heard to complain of a statute which does not affect them without the state, but is a police regulation restricted to this state. Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795;Knight & Jillson Co. v. Miller, 172 Ind. 27, 87 N. E. 823;Harlin v. Schafer, 169 Ind. 1, 81 N. E. 721;Wilkinson v. Board, 158 Ind. 1, 8, 62 N. E. 481;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313;Wagner v. Town of Garrett, 118 Ind. 114, 117, 20 N. E. 706.

[5] The rule of strict construction of penal statutes does not apply in all its strictness in the consideration of the constitutionality of a statute, in which case a broad latitude is indulged in favor of the law-making power. State v. Hogreiver, 152 Ind. 652, 657, 53 N. E. 921, 45 L. R. A. 504.

[6] Courts will not construe a statute as unconstitutional where the words of the statute do not by fair construction impel that result, or where it may be limited within constitutional bounds, and the intention carried out. Stiers v. Mundy (App.) 89 N. E 959, 961;Pittsburgh, etc., Co. v. Hunt, 171 Ind. 189, 86 N. E. 328, 332;United States, etc., Co. v. State, 164 Ind. 196, 214, 73 N. E. 101; Endlich, Inter. of Statute, §§ 178, 179; Sutherland, Stat. Cons. §§ 519, 521, 528, 530. It may be conceded that the act is not carefully drawn, and that its language, broadly read, might include railroad companies operating out of, as well as in, the state, but it is so manifest that if it sought to reach operation without the state that it would be void that no such interpretation will lie as against a co-ordinate branch of government, while the language is not such as to impel that inference or construction and fairly construed means while operating within the state, and, as we have seen, that construction is not only permissible, but is just.

[7] As to the fourth and fifth points, that the act is void for indefiniteness and uncertainty, the point is made that the words “proper,” “efficient,” and “properly” are relative terms, and there is no standard created by which to determine when a crime has been committed, and reliance is placed upon Chicago, etc., Co. v. Town of Salem, 166 Ind. 71, 76 N. E. 631,Cook v. State, 26 Ind. App. 278, 59 N. E. 489, and Louisville, etc., Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457. In the first of these cases the ordinance was held invalid because it was not sufficiently specific, in that it left the matter open to proof as to what the standard as fixed by the ordinance was, and that persons to be penalized could not be required to take notice of the character of light the town might have at any given time, and subject to such changes as it might make from time to time. In Cook v. State, the statute left it wholly open to opinion of witnesses as to what is a “broad-tired wagon” or a “narrow-tired wagon.” The Kentucky Statute used the term “just and reasonable rate.” What would be a just and reasonable rate is a subject of greatly varying opinion, without any standard, and the cases are clearly right upon the facts shown, but that is not the case with the statute before us.

[8] This statute is designed to accomplish a definite result-the continuous ringing of a bell. There can be no middle ground or comparative condition arise. A bell would either be rung or not rung, so that the word “properly” may be wholly eliminated as unnecessary, for it is of no force in describing the offense. Neither the words “properly” or “efficient” seek to characterize the offense by comparison with any standard, or any result produced, or sought to be produced. They aim at a result, and do not seek to characterize or define an offense at all. A locomotive equipped with an automatic device for ringing the bell, which does so and such device kept in working order, is necessarily “properly” equipped, and a device which rings a bell automatically is necessarily “efficient,” and, if kept in working order at all, must necessarily be in “proper” working order, so that the words “properly,” “efficient,” and “proper” in this statute are unnecessary, and may properly be eliminated as redundant and surplusage in its construction without in any wise affecting it, and this rule applies as to penal, as well as to civil, statutes. Voris v. Pittsburgh, etc., Co., 163 Ind. 599, 70 N. E. 249;State v. Brandt, 41 Iowa, 593;State v. Myers, 10 Iowa, 448;Commonwealth v. Marshall, 69 Pa. 328;Chapman v. State, 16 Tex. App. 76; Endlich, Inter. of Statutes, §§ 301, 302, 304; Sutherland, Stat. Cons. (2d Ed.) § 384.

[9] But even with the words retained, what is to be understood from it. One object alone is sought, viz., the continuous ringing of a bell in the operation of locomotives. If that result is produced, it is because a locomotive is “properly” equipped with an automatic device which is “efficient” and kept in working order. It is in proper working order. In other words, it is not left to any one to say that the locomotive is “properly” or improperly equipped, or that the device is sufficient or insufficient, or whether it is in “proper” or improper working order. Those are matters wholly committed and intrusted to railroads. The result only is looked to, and there can be only one affirmative or negative result, either the ringing of a bell or its not ringing.

[10] The statute in all its parts should be looked to with a common sense view and consideration of its entire import. Boyer...