13AlqON <CO,, V·.
FT. S. & G. R. Co.
(Otrcuit Oourt, W:n.Mi880ttrl,W. D. ' October, 1887.)
CONSTITUTIONAL LAW-POUCE POWER-REGULATION OF RAILROAD CROSSINGS.
.In 1881. the legislature of, state Missouri passed an act affecting railroads, which provided that, attailroad crossings, the railroadsctossing there should erect and maintain suitable depots and waiting-rooms to accommodate passengers. Held, that it was a ll:lgitimate e·xercise of the police power and not unconstitutioDal. .
RAILROAD PARTIE!!. " . OF CROSSINGS-ACTION FOR VIOLATION.
An act of the legislature of Missouri made it the duty of railroads to erect and maintain at railroad crossings waitIng-rooms for passengers, and fixed the penalty for a violation of the act. The defend&nt was prosecuted for not complying with the provisions of the act. It insisted that there was a defect of parties, in that both railroad companies were not joined. Held, that w\,:"relea/led from liability by the failure of other.,
STATUTES-REPEAL-EFFECT ON PENALTmS INCURRED.
In 1885 the legislature of Miesouri amerided an act passed in 1881. The defendant company claimed that the amendment worked a repeal of the law of 1881, and released it from penalties i,ncurred before the amendment. Rev. St. Mo. § 8151, provides: "No offense committed, and no fine, penalty, or forfeitute incurred;pravious to the time when 'any statutory provision shall be repealed. shall be affected by repeal:bilt the trial and punishment of all such offenses, and .the recovery of such fines, penalty, and.forfeiture shall be had, in all respects, as if the provisions had remained in force;" Held, that though the penalty was incurred prior to the amendment of 1885, still under this jt. \Vas recoverable. . . ;
4., SAME=CONSTRUCTION---.M.UiDA;TO;RY PROVlsIONS-.CONDITIONS. " , . miuidato!:f provisions, and, it imposed a penalty for a falfure'to comply WIth the condItIOI1S of the section. Held, that whateTer'criticiSnl'migbt be placed: on the use of the word "conditions," the intent was plaip'iand the statute. "jVIj,S to be soas,not to defeat the manifest mtent,of the power. . 3. QUI TAM uri PENAL ACTIONS-:-LIHITArrON TO MAINTAIN RAIL-
Rev St. Mo. § 3281, places a limit of three years upon an action upon a ute penalty or forfeiture where the action is given to the partyaggrieved, prio slIchparty and· the 'state: 'Held; that this did not apply to a case where a railroad had incurtedpenahies for 1I0t erecting l\ passenger depota,t:ll Cfossing, and the penalties went to the school
SAME-:-;-:JOINl>ER OF OFFENSES-VIOLATION.
,' . '
Astat'uteimposed penalties for a failure to comply with the conditions of the section·. Held, that a disobedience of any ona' of thafprovisions subjected the delinquent :to the peDf/.lty; : '
, " :
An act provided that f,or each day from and after a certain specified day the delinquent should forfeit and pay the sum of $25.' Held, that the legislature intended an: accumulation of penalties, and the defendant cotIld not atone for its by th!l a single Pllnalty.
Botsford &. ,WiUiarn8, Jor plaintiff. . ' . , . . Pratt, & Ferry, and.o. W.Blair, for ,defendant.
BREWER, J. In 1881 the legislature of the state of Missouri passed an act affecting railroads, which, so far as is material to tqis case, reads:
"Every railroad corporation in this state which now is, or may hereafter be, engaged in the transportation of passengers or property lit ... ... shall,
STATE V. KANSAS CITY, FT. S. & G. R. CO.
at all crossings and interseetiollsof dther railroads, .wheresuch other railroacl and the railroad the same are now, or hereafter may be, made upon the same grade, and the character of the land at such crossing or intersection will ad!Jlit of the sanie, erect, buIld, and maintain, either jointly with the railroad company Whose road is crossed, or separately by each railroad company, a depot or passenger hOuse, and waiting room or rooms sufficient to comfortably accommodate all passengers waiting the arrival and departure of trains at such junction or railroad crossing, and shall keep such depot or passenger honse warmed, lighted, and open to the ingress and egress of all passengers a reasonable time before the arrival. and until after the departure of all trains carrying passengers of said railroad or railroaus. * * * Every railroad corporation or company who shall fail, neglect, or refuse to comply with the conditions of this section from and after the first day of July, 1881, shall, for each day said corporation or railroad company refuses, neglects, or fails to comply therewith, after said day. forfeit and pay the sum of twentyfive dollars, which may be recovered in the name of the state of Misso\lri to the use of the school fund. of the county wherein said crossing is situated; and it shall be the duty of the. prosecuting attorney to prosecute for and recover the same." Laws 1881, p. 77. In Ba$ncounty the defendant's road crosses the Missouri Pacifio failed at such crossing to build the depot as reRailroad, and, it quired by this section; this action was commenced in February, 1885, by the prosecuting attorney of that county, to recover the penalties therefor. The amended petition is in 1,338 counts, each count seeking to recover the penalty for one day's failure to build a depot, commencing with July 2, 1881, and ending at the commencement of the suit. A demurrer has been filed to each and every count of this. petition, and various questions have been argued with great ability and learning by counsel. The first question is as to the constitutionality of the act. of this nature, when sustainable, are sustainable under the police power of the state, and in discussing questions of this nature we are confronted at the outset with the fact that no one knows the limits of the police power. Many attempts have been made to define it, and prescribe its boundaries, but none as yet have been so successful as to meet general approval. Even. so learned a;tribunal as the supreme court of the United States declined to attempt a definition, and held that the limits of the power could be more safely determined by the process of inclusion and exclusion, as the various cases involving its assertion should arise. It is a power aflecting the public health, the public safety, and the public welfare. By reason of its undetermined extent it is the bete noire of courts. Omne ignotum pro magni:fico. Hence in many cases the assertion of its extent is .yielded to without question. But the power has limits; some are recognized and established, others. doubtless, will be from time to time. One is that the poliiJe power of the states is limited by the express prohibitions in the federal constitution upon a state's action. For instance, the state may regulate fares and freights, but inasmuch as the regulation of interstate commerce is vested in the general government, the state's police power to regulate freights and tariffs does not extend to interstate commerce. Railway (h. v· IUinoiB, 118 U. S.
557, 7 Sup. Ct. Rep. 4. Again, while the may. in the exercise of their police power, prohibit the manufacture and sale of intoxicating liquors, they cannot, in view of the fourteenth amendment, extend such power to the destruction of private property invested before the passage of any prohibitory enactment in breweries or distilleries. State v. Walruff, 26 Fed. Rep. 178. So, I think, though without attempting to formulate a rUle therein, a distinction will be drawn between cases in which the police power is invoked simply to regulate the use of property, and those in which a demand is made for the expenditure of money. It is one thing to require a railroad company to stop its trains at a given point; it is another to require it to go to the expense of building a depot at that point. One means nothing but the manner of use, the other calls for an outlay of money, Much larger liberty will be accorded to the legislature in the one direction than in the other. I do not mean to not extend to any cases of the latter assert that .the police nature; I siinply affirm that the courts will put narrower boundaries upon an attempted exercise in this direction. My first thought on the examination of this statute was that this distinction was operative here, and would compel an adjudication against the validity of the statute. I still have doubts of its validity, but as the rule is that questions of doubt must be resolved in favor of the constitutionality of a statute, I am constrained to hold that this act is a valid exercise of the police power of the state. That it is so"valid has been affirmed by one of the judges of the supreme court of this state in the case of State v. Railway 00., 83 Mo. 144. It is true that no decision was made by the court on this question, the case going oft' on another matter, but the opinion of so distinguished a jurist as Judge NORTON is entitled to great weight. If the supreme court of the state had affirmed its validity, doubtless such decision would be conclusive on the federal courts, unless in their judgment some provision of the federal constitution was infringed upon by the statute. . It is no longer doubted that the legislature may require that trains shall stop at every railroad crossing. Public safety justifies, if it does not compel, this. If the legislature may require a stop, why may it not require a stop of sufficient length to permit passengers to get On and oft', and with that require suitable depot privileges? It will be noticed that the statute does not attempt to prescribe the size or expense of these depots; it leaves that to the discretion of the railroad companies, simply requiring that they shall be sufficient to comfortably accommodate passengers at that point. It would seem to be a reasonable exercise of the police power to compel railroad companies to furnish suitable accommodations for passengers at all places where they receive and discharge them from their trains. Public welfare, if not public safety, justifies this. I t was suggested on the argument that in some instances the tracks of two railroads cross and recross several times within the limits of a city in making their way to a union depot; and it was asked, why should a depot be required at each of those crossings? It may be that, under the statute, none is there required; for it has been often said that that
STATE V. KANSAS CITY, lIT. S. &: G. R. CO.
which is not within the spirit, though within the letter, of the statute, is not within the statute, and it may well be that, construing this statnte according to its spirit, it does not apply to cases of that kind. It· may also be true that other circumstances may exist which in any given case will prevent the operation of the statute. This very case may, when the facts are fully disclosed, showa condition of affairs which will justify the court in holding the statute inapplicable. But considering the statute by itself, I am constrained to hold it a legitimate exercise of the police power" and not unconstitutional. Another question is this: In 1885 the legislature amended this statute, and it ,is contended that such amendment worked a repeal of the act, and released, the defendant from all liability.incurrf'd before such amendment. ,This might be true, and doubtless would bC'. but for sootion 3151 of the Revised Statutes of Missouri, vol. 1, p. 528. That section reads: "No offense committed, and no fine, penalty, or forfeiture incurred, previous to the ,time when any statutory provision shall be repealed, shall be affected by sucb repeal; but the trial and punishment of all such offenses. and the recovery of such fines, penalties, and forfeiture shall be had, in all respects, as if the provisions had remained in force." I had occasion. when on the supreme bench of Kansas, to con!lider a section of this nature, and shall not restate the reasons which controlled the decision of that court. It is enough to say that this section must be taken as estal;>lishing a general rule controlling all cases in which the re.pealing act does not clearly express a contrary intent. The amendment in this case certainly suggests nothing of an intention to disp611se with the operation of this general rule, and though the penalty was incurred prior to the an1endment of 1885, still under this section it is recoverable. Again: It is insisted that there is a defect of parties defendant, in that both railroad companies are not joined. This is a mistake j the penalty is incurred by eachj the obligation rests upon eachj they must build a depot jointly, or, on the failure of either, the other must act separately. Neither is released from liability by the failure of the other. Again: It is insisted that. the statute of limitation bars many of these counts, and section 3231, Rev. St. Mo. p. 547, is referred to, which places aUmit of three years upon "an action upon a statute for a penalty or forfeiture where the action is given to the party aggrieved, or to such party and the state." I do not think the section applicable; that applies where somebody is wronged by the action of the defendant, and to him alone, or to him in conjunct.ion with the state, an action for a penalty is given. An illustration of that is where a party is overcharged for freight or transportation byarailroad company. He is personallyinjured,-in the language of the statute, the partyaggrievedj but in this case the penalty goes to the school fund, and the schools of the state are in no manner injured by this failure of the defendant to comply with the statute; the school fund can in no proper aense be considered a party aggrieved. Looking at the statutes of limitation applicable solely to civil cases, there is to be found no provision placing other than a 1O-year limitation upon
cases of this kind. Turning to the criminal procedure of the state, article 1l,'Rev. St. p. 291; prescribes certain limitations. Section 1709 'reads: " , the penalty is given, the whole orin ;part, to the state, or to or CIty, or:to the treasury thereof, a suit therefor may be commenced by or m behalf of the, state, county, or' city, at any time within two years after the commission pf the offense, and not after." Now, this action is what is known asn qui tam action; it is civil in form, but is to recover a penalty imposed bya penal statute, and is. therefore, pattiallyat least, crimibal in its nature. Counsel did not discuss the applicability of this criminal statute of limitation, and therefore I express no opinion oh the questio11; I simply suggest it for 0011sideratio11,leaving a decision to the after-proceedings in this case. Again: It is insisted that 'the statute imposes the penalty for a failure to comply with the conditions of the sectio11; that, in fact, there are 110 conditio11s, but simply, mandatory provisions;' that this, being a penal statute, is to be construed strictly, and hence, there being no ditions, no penalty is recoverable, Whatever criticism may be placed upon the use of the word "conditi<)lls,"the intent of the legislature is plain; and, although this be a penal statute, it is not to be so construed as to defeat the >manifest intent, of the law-making power. In re Coy,31 Fed. Rep. 794. Giving full force to the intent of the legislature, it is obvious that it meant to enact tbat a failure to comply with these mandatory proVisions cast upon the delinquent the prescribed penalty. Again: It is insisted that all the provisions of the section must be disregarded before the penalty is cast. The statute says a refusal to ply with the conditions subjects to the penalty. That this means all of the conditions, is claimed, not 'Only from the language used, but also from the fact that in 1885 the legislature amended this section so as to impose the' penalty for a failure to perform any of the provisions. This is urged asa legislative interpretation of the meaning of the act of 1881. It may be or it may be the effort of the legislature to make plain what was doubtful before.:r thin:kit the latter, for the meaning of the act of 1881, while not certain, yet tested by the apparent intent, was the imposition of a penalty for delinquency in respect to anyone of these' provisions. A penal bond is broken by afailure to comply with any of'the conditions of the bond, and'in an action thereon it is unnecessary to charge a breach of all; This is similar; it is a p'enal statute with mandatory provisions, and obvionsly the legislature meant, and its language fairly construed implies, that a disobedience of anyone of these provisions subjects the delinquent to the penalty. ; Finally: ltisinsisted that but one perialty can be recovered for all delinquencies prior to the commencement of this aCtion. The cases of Fishel' v. Railway OO'L 46 N. Y. 644;Parlcs v. Railroad Co., 13 Lea, 1; Murray v. Railroad (fo., 63 Tex., 407; Gulledge v. Railroad Co" (not reported,) (Tex; Ct. App.,)arecited in support thereof. This question is alSo one that has embarrassed me no little. It seems shocking that a book account of penillties can be run up against a delinquent. In this case
I . ,.
V. CABLE TRAM-WAY CO.
the penalties sued for amount to over $30,000, and it is hard to believe that the legislature intended that such a burden of penalties shOUld be cast upon a delinquent before its conduct is challenged and condemned in the courts. T,he authorities cited show that one penalty is alone recoverable, unless the language of the statute clearly expresses a contrary intent. I regret to say, and I do it with great hesitation, that such seems to be the intent of this section. It impose a penalty simply for a failure to con!3truct a depot, but it says that for each day, from and after a specified day, the delinquent shall forfeit and pay the sum of $25. Now, that langllage fails of meaning if after a lapse of years of delinquency but one penalty was recoverable. The delinquent would not be forfeiting aIld paying $25 for each day of delinquency. to this language thatfoFce which each, word requires, it must be held that the legislature intended an accumulation of penalties, and the delinquent cannot atone for its delinquencies by the of a single pena1t1. In conclusionjet me say that, while upon these questions I have been driven, ,and upon some of them reluctantly and hesitatingly, to conclusions ad"erse to the defendant, I cannot forbear expressing a feeling that this 8.(}ti<?):i ought not to be maintained for the sum claimed, and that a moral wrong will be done if in the ,final determination of this action it shall be adjudged that the defendant is under the law liable for the payment thereof. For the however,and upon the questions presented, the order must be that the demurrer is over· ruled. ' ,
OF OMARA. 1
Oo.zirt. J). Nebraska.
COURTS-FEViilti.i. J uRIsmCTION'.,....FEVERAL QUESTIO;N-;RETENTIOIt'OyOAUSE.
A claiming to have an exclusive 'franchise in Omaha, Nebraska, of i,twas a resident, sought in the federal coprtsto enjoin a cable company, 'also a resident of that state, from laying its tracks in Omaha, on the !P'0und that the act incorporating the cable company wasil. , state law impairmg the obligation of contracts. The court held that the exth.e plaintiff's '!as limited mere horse raHway, but the constItutIOn of the.state forbIddIng the damafTIng, as well as the taking of private property for public use without compensation therefor, referred thE! case to commisll;ioners to report what damage, if any, the plaintiff would suffer by the laying of the cable line. Held, that a real, substantial federal question having been involved in the case at the outset, the elimination of that question did not oust the court of jurisdiction of the question of damages.
ILEGE. ' , .' ,
2. EMINENT DOM4IN-DAMAGE,TO !':aOPERTY-IMPAIIWENT OF FRANCHISE PRIVSection 21 of the Bill of Rights of the Nebraska constitution of 1875 provides that" the prl',l,perty, of no person shall be taken or damaged for public use without cPInpensationtherefo:r'" Held, that where the tracks of a street railway, owning an exclusive 'franchise for that'mode of carriage, were par, alleled' by those of a cable tram-way, the latter haTing obtained' from the owner of, the the right to the streets. the property of the fOrDlet
lsee former'repbrtot thi$case, SO 'Fed. ,Rep. 324,