Sunderland Bros. Co. v. Chi., B. & Q. R. Co.
| Decision Date | 13 March 1920 |
| Docket Number | No. 20853.,20853. |
| Citation | 104 Neb. 319,177 N.W. 156 |
| Parties | SUNDERLAND BROS. CO. v. CHICAGO, B. & Q. R. CO. |
| Court | Nebraska Supreme Court |
Sections 6159, 6160, 6162, Rev. St. 1913, which impose liability on railroad companies for actual damages and in addition levy a fine or penalty, to be paid to the injured party, are repugnant to section 5, art. 8, of the Constitution, which requires that all fines and penalties arising under the general laws go exclusively to the school fund.
Where a statute imposes liability for actual damages and also imposes additional liability for the same act, such additional liability is a “fine” or a “penalty.”
A statute which provides for more than compensatory or actual damages to be paid to an individual is in excess of legislative authority and is unconstitutional.
Where a statute makes a railroad company liable for $1 per day per car for delay in forwarding, giving notices, or delivery, and in addition thereto imposes liability for actual damages caused by such delay, by necessary implication is in violation of section 21, art. 1, of the Constitution.
The Legislature cannot appropriate private property to private use.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by the Sunderland Bros. Company against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.Byron Clark, Jesse L. Root, and J. W. Weingarten, all of Omaha, for appellant.
Baldrige & Saxton, of Omaha, for appellee.
This is an action brought under sections 6159-6164, Rev. St. 1913, known as the “Reciprocal Demurrage Act,” to recover demurrage alleged to be due from defendant railroad company for delay in forwarding and delivering carloads of sand and stone. These shipments were all intrastate. The court below rendered judgment for plaintiff, and defendant appeals the case to this court.
Section 6159, Rev. St. 1913, provides, among other things, that:
“In less than carloads, not more than one cent per hundred pounds, per day or fraction thereof with minimum five cents as damages, together with all other damages the consignor or consignee may sustain thereby.”
Also section 6160 provides, among other things, that:
“Any railroad company failing to give such notices, shall forfeit and pay to the consignee or other party whose interest is affected the sum of one dollar per car per day or fraction of a day's delay on all carload shipments, and one cent per hundred pounds per day or fraction thereof on freight in less than carload lots with minimum charge of five cents per day and not exceeding one dollar per day for any shipment in less than carload, after the expiration of said twenty-four hours, as damages together with all other damages sustained thereby.”
Section 6162 provides:
“The railroad company shall forfeit and pay to the shipper or consignee one dollar per car per day for each day or fraction thereof such delivery is delayed as damages and all actual damages sustained thereby.”
These quotations show clearly that the Legislature intended to provide for a fine or penalty in addition to compensatory or actual damages; if not a fine or penalty, then for double damages. The sections are clear and unambiguous in their meaning and are subject to no other construction.
[1][2][3] An unreasonable regulation which in effect deprives owners of property used in rendering public service, and operates as a limitation upon the rights of those devoting their property to public use and imposes double damages, a part of which is in the nature of a fine and a part as compensatory damages, constitutes a deprivation of property without due process of law and is a violation of the state Constitution.
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