The Atchison v. Campbell

• Decision Date: 10 February 1900
• Docket Number: 11442. [*]
• Citation: 59 P. 1051,61 Kan. 439
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. I. P. CAMPBELL

59 P. 1051

61 Kan. 439

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. I. P. CAMPBELL

No. 11442. ^[*]

Supreme Court of Kansas

February 10, 1900

Decided January, 1900.

Error from court of appeals, southern department; A. W. DENNISON B. F. MILTON, and M. SCHOONOVER, judges.

Judgment Reversed.

A. A Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

Sankey & Campbell, for defendant in error.

OPINION

DOSTER, C. J.:

This was an action brought by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, to recover an amount of money paid as passenger fare on the line of the road of plaintiff in error from Kansas City, Kan., to Attica, Kan. The defendant in error shipped a car-load of live stock from the latter place to the former. On the going trip he rode free on a stock-shipper's contract issued to him by the railroad company's agent at the shipping point. On the return trip he demanded to be carried free, in accordance with the provisions of chapter 167, Laws of 1897. (Gen. Stat. ch. 70, §§ 67-79; Gen. Stat. 1899, §§ 5763-5765.) This demand was refused, and to avoid ejection from the train he paid the required fare. He then brought an action to recover the amount paid, together with an attorney's fee for the prosecution of the suit. Judgment was rendered in his favor, first by a justice of the peace, next by the district court, and lastly by the court of appeals. (Railway Co. v. Campbell, 8 Kan.App. 661, 56 P. 509.) The railway company has prosecuted error to this court.

The sole question involved in the case is the constitutionality of the legislative enactment under which the demand for free transportation was made. The title of the act and its first two sections, the only ones material to quote, read as follows:

"AN ACT to amend chapter 195, of the Laws of 1895, being an act entitled 'An act to require railroad companies to furnish free transportation to shippers of stock in certain cases, and providing a remedy in case of failure or refusal on the part of the railroad company to comply with the provisions of this act.' To provide a penalty for the violations of the provisions of this act, and repealing all acts and parts of acts in conflict herewith."

"SECTION 1. That section 1 of chapter 195, of the Laws of 1895, be amended so as to read as follows: SECTION 1. Whenever any railroad company, or corporation, doing business within the limits of this state shall receive and ship any live stock by the car-load, said company, in consideration of the usual price paid for the shipment of said car, shall pass the shipper or his employee to and from the point designated in the contract or bill of lading, without further expense to the shipper in the way of fare: Provided, however, that in all cases where a shipper ships more than one car-load of stock at the same time the said railroad company shall be and is hereby required to pass free, as aforesaid, only one additional person, shipper, or employee, for every three car-loads shipped in addition to the first car-load.

"SEC. 2. That section 2 of said chapter 195, Laws of 1895, is hereby amended so as to read: SEC. 2. Every railroad company, or corporation failing or refusing to comply with the provisions of section 1, of this act, shall be liable in damages to the shipper, for the amount of damages sustained by reason of such failure or refusal on the part of the railroad company, to be recovered before any court of competent jurisdiction, and any judgment recovered on any such action shall be made to cover reasonable attorney's fees for plaintiff's attorney."

The above act is assailed upon the ground of its repugnancy to that portion of the fourteenth amendment to the constitution of the United States which reads: "Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Speaking for myself, I am of the opinion that a strained and artificial construction has been often placed upon this constitutional provision, especially by the federal courts, for the purpose of bringing within its prohibitive terms much wholesome state legislation. For instance, I do not believe that the word "person" used in the clause above quoted was designed to include corporations, nor that it can in reason bear that signification when read in connection with the preceding clauses of the section and interpreted in the historic light of the origin and purpose of the amendment. However, the federal courts, the authoritative expositors of the federal constitution, departing from the view first taken by them, have been for many years holding that a corporation was a "person" within the meaning of the provision above quoted. Those decisions are, of course, binding upon the state courts. Being, therefore, under the compulsion of the now-settled rule of interpretation, I agree with my associates that the above-quoted enactment cannot be upheld. It operates as a deprivation of property without due process of law, and is a denial of the equal protection of the laws.

The property of a railroad company consists not alone in its franchise to be a corporation, nor its right of way and track, nor its rolling-stock and other tangible property, but it consists, in its most essential character and important sense, in the right to charge and collect tolls for the transportation of persons and property over its line. Without the right to take tolls such corporation could not do business, and a denial of its right to take tolls would as effectually render valueless all of its other property as a confiscation of its other property would defeat its ability to carry on its business. Upon the conception of the right to take tolls as a species of property belonging to railroad corporations rest all the decisions of all the courts, both state and federal, denying the right of state legislatures to restrict such tolls below a reasonable amount. It needs but a glance at the act in question, and but a moment's thought over the consequences to result from a sanction of its provisions, to perceive that it strikes vitally at the fundamental right of a railroad company to own and enjoy that species of property which exists in the form of its franchise to charge and collect tolls. It purports in its title to be and is "An act to require railroad companies to furnish free transportation to shippers of stock in certain cases"; and in its body it requires railroad companies, "in consideration of the usual price paid for the shipment of a car of stock, to pass the shipper or his employee to and from the point designated in the...