Sunderland Brothers Company v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 13 March 1920
• Docket Number: 20853
• Citation: 177 N.W. 156,104 Neb. 319
• Parties: SUNDERLAND BROTHERS COMPANY, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

177 N.W. 156

104 Neb. 319

SUNDERLAND BROTHERS COMPANY, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT

No. 20853

Supreme Court of Nebraska

March 13, 1920

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed and dismissed.

Judgment reversed and plaintiff's action dismissed.

Byron Clark, Jesse L. Root and J. W. Weingarten, for appellant.

Baldrige & Saxton, contra.

ALDRICH J. LETTON and DAY, JJ., not sitting.

OPINION

ALDRICH, J.

This is an action brought under section 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: "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: "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.

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.

A statute which takes property from one individual and gives it to another, not in compensation for any injury sustained, is contrary to the provisions of the Constitution securing property rights of private individuals.

An act of the legislature which provides for double damages comes under the rule in Atchison & N. R. Co. v. Baty, 6 Neb. 37, and is unconstitutional.

If this statute...