St. Louis-San Francisco Railway Co. v. State

20 S.W.2d 878, 179 Ark. 1128, 1929 Ark. LEXIS 219

• Court: Supreme Court of Arkansas
• Decided: September 30, 1929
• Status: Published

Opinions

Mehaffy, J.

On the 30th day of January, 1929, the prosecuting attorney for the Third Judicial District of Arkansas filed before two justices of the peace in the Eastern District of Lawrence County four hundred in-formations ; two hundred against the St. Louis-'San Francisco Eailway Company before Justice of the Peace W. Story, and two hundred against the Missouri Pacific before Justice of the Peace J. F. Israel.

All informations are alike, except as to date upon which the offenses charged were alleged to have been committed, and each information contained the allegation that the defendant unlawfully, knowingly and willfully failed, refused and neglected to comply with a certain finding, order, decree and mandate of the Arkansas Eailroad 'Commission requiring the railroad company to construct and erect sheds over the platform of its depot at Hoxie, Arkansas, in said district and county, and described as umbrella standard sheds, to be 250 feet long and having a spread of 12 feet, and to be located so as to accommodate passengers- boarding and alighting from trains, and defendants failed, refused and neglected, in the alternative, to construct and erect one shed of the dimensions aforesaid, to provide adequate protection to passengers boarding- and alig’Ming from trains in any direction after said Arkansas Railroad Commission had, by its order in case No. 517, when said matter was properly and legally before said Arkansas Railroad Commission on the 2d day of February, 1920, ordered the said defendant companies, within 45 days after the entry of said order, to erect and construct said sheds, contrary to the statute in such cases made and provided, etc. There was a second count in each information against the defendants for failure to stop its trains at the depot at Hoxie. The court, however, treated this second count as surplusage.

Neither of the defendants appeared in justice court, and there was a .judgment for $26 in each case, a total fine of $5,000 against each defendant, with costs.

Each defendant appealed to the circuit court, where the cases were tried and the judgments of the justice of the peace courts affirmed.

In the justice courts all the cases against the Missouri Pacific Railroad 'Company were consolidated and all the cases against the San Francisco Railway Company were consolidated, and then all the cases against both roads were tried together, and were also tried in the same manner in the circuit court.

On the 1st day of November, 1925, a petition signed by citizens, as required iby,the statute, was filed against each appellant with the Railroad Coinmission. Notice was served on each railroad company that the Arkansas Railroad Commission would hold a special meeting in the city of Hoxie on Friday, December 4, 1925, for the purpose of taking up for consideration the petition of citizens requesting that the railroad companies be required to erect sheds over the platform at Hoxie, and notified the companies that the commission would take such action with reference to- said petition as mig-ht appear just and necessary. Bioth appellants were not only notified but were present, and each filed answer, and resisted the application for an order of the Railroad Commission. Testimony was taken, and, after the testimony was taken, an order was made hy the Railroad Commission requiring the railroad companies ‘to build sheds.

The appellants appealed to the circuit court of Pulaski County, where the order of the Railroad Commission was affirmed. The order of the circuit court, as found at page 763 of 176 Arkansas, is as follows:

“The two railroads intersect at Ploxie, and pas-' sengers leave the train of each railroad ¡before the train crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are of necessity required to walk quite a distance. Under the circumstances of this peculiar case, in the opinion of this court, the order of the Arkansas Railroad Commission does not appear unreasonable or arbitrary. It is claimed that the construction of sheds at EEoxie would require an unreasonable outlay hy the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies on the approval of the Railroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Railroad Commission is not arbitrary or unreasonable, and will therefore be affirmed.” St. L. S. F. R. Co. v. Albright, 176 Ark. 761, 4 S. W. (2d) 910.

Prom the judgment in the circuit court both appellants prosecuted an appeal, and the case was affirmed by this court on the 26th day of March, 1928.

In the present case the State introduced the order of the Railroad Commission requiring the companies to build sheds, and also introduced the secretary of the commission and one of the commissioners.

As we have already said, the case was appealed to the circuit court, where the judgment of the justice of the peace was affirmed, and this appeal is prosecuted to reverse the judgment of the circuit court.

At the conclusion of the testimony in the circuit court, the appellants moved a dismissal of the causes for the reason that § 1640 of 'Crawford & Moses’ Digest had not fbeen complied with. That section reads as follows:

“Filing copies of findings. The -Corporation Railroad Commission shall file a copy of their findings and decree with the -Secretary of State, the Attorney General, the circuit clerk of the county wherein such decree is granted, and shall serve notice upon defendant railroad company by delivering a copy of its findings and decrees to the nearest local station agent, and by sending by registered mail a copy to- the superintendent, -general manager, lessee or operator of such railroad or railroad company.”

It is insisted that, until this section requiring the Railroad Commission to file a copy of its findings and decree, is complied with as provided in said section, the order of the Railroad Commission could not become effective.

Section 1638 of Crawford & Moses ’ Digest provides for petitions. Section 1639 provides for inspections. It requires the Corporation Commission to make personal inspection of conditions, make investigation, take testimony, and provides that the findings of the commission shall be binding* upon all railroads within the State of Arkansas. Then -follows the section above quoted.

The Railroad Commission, under § 1639 of Crawford & Moses’ Digest, can make the inspection and investigation, make its findings, and file them as above mentioned, without giving any notice to anybody. If it does that, of course it would then have to give notice to the railroad company of what it had done. But the sections referred to by appellant, requiring the commission to file a copy of its findings, are wholly unnecessary in this case-, because, instead of making the investigation' and filing copies, the Railroad Commission had a hearing, at which both appellants were present and participated in the trial or hearing.

Section 1641, providing a penalty for violation of the order of the commission, contains this proviso: “provided, no order for doing anything hereinabove provided shall be made by snch commission until all parties concerned shall have received ten days’ notice of snch proposed change.”

It is undisputed that the appellants had the ten days ’ notice. There is no controversy about that. They not only had the notice, but they were present, as we have said, and defended, and both sides introduced evidence. When there was a finding against them, they appealed to the circuit court, and then to this court, where the judgment of the circuit court was affirmed.

Appellant calls attention to and relies on a statement in 20 R. C. L., 343. In § 6 of the same article in R. C. L. and in the same volume, following the section quoted by appellant, is the following: ‘Generally a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind could and did take cognizance of it. And of course, when a person knows of a thing he has ‘notice’ thereof, as no one needs notice of what he already knows. While extrajudicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner.”

In 21 R. 'C. L., under the head of “Process,” the questions of the nature, issuance, requisites and validity of the process are discussed, and, among other things, it is stated on page 1263: “But notice is for the sole benefit of the defendant to afford him an opportunity of being heard on the claim or the charges made against him. It is not required for the protection of the plaintiff. Moreover, a party may waive his right to have a suit begun against him by process, and he does so by making a voluntary appearance, or by authorizing another to appear for him.”

The only purpose of the sections of the statute relied on by appellants is to give the appellants notice so that they may have a hearing. And the proof in this case shows not only that they had notice, but that they were both present, participated in the hearing, introduced evidence, and could not have been prejudiced in any way. T'he appellants in this case have no' right to insist on filing the papers with the Attorney General, Secretary of State, and circuit clerk. They had a right to notice and hearing-; an opportunity to be heard in court. See Ghriest v. Railroad Commission of California, 170 Cal. 63, 148 Pacific 195; Seward v. Ry. Co., 17 N. M. 557, 131 Pac. 980; Miami v. Corporation Commission, 95 Okla. 57, 219 Pac. 126; Lane v. Levinson, 91 Maine 292, 39 Atl. 999; Dist. of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840; Hammond v. Gilmore, 14 Conn. 479.

It is next contended by the appellants that the statute under which the informations were filed is highly penal in its nature, and that this court, in 125 Ark. 45, 187 S. W. 1064, said: ‘ ‘ Courts have always been opposed to the enforcement of penalties except to the extent necessary to secure the manifest object of their infliction. For this reason penal statutes are construed strictly.’'

The manifest object of the infliction of the penalty here, or the manifest object in making the order of the Railroad Commission, was to compel the railroad companies to provide sheds for the protection of passengers. And, although proceedings to force the railroad companies to do this were 'begun in December, 1925, and the decision of this court affirming the Railroad Commission was March 26, 1928, no effort has been made on the part of either appellant to comply with the order. They were present at all the hearings, knew of the order, and refused to comply with it, and admit in this proceeding that they have not complied with it.

Appellants call attention to 46 C. J. 552, and rely on the law as there stated. The section quoted and relied on by appellant is § 40, on page 552, and following that, <§> 52 reads as follows: “A person for whose benefit or protection a notice should be given may waive the same, but he cannot waive notice so as to affect the rights of third persons.”

Appellants also call attention, in this connection, to Chicago & N. W. Ry. Co. v. Board of Sup’rs, 182 Ia. 60, 162 N. W. 868. This is a drainage case, and the statute in that case provided for two notices, hut the statute also provided for a hearing. The railroad company was present at the hearing, and could have taken an appeal, but did not do so, and the court in that case held that the notice was sufficient, and affirmed the case against the railroad company, stating, in effect, that it was not only in accord with the decisions of the Iowa court, but practically all other courts. It was contended in that ease that the proceeding was a taking of appellant’s property without due process of law, and the court said: “The sufficiency of notice and of opportunity of the property owner to be heard, to constitute due process of law, is a question that has had the attention of every court of the country, and, if any one thing concerning the law of taxation can be said, to be settled beyond doubt, it is that: “If provision is made ‘for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.’ ”

In the instant ease a provision was made for notice and hearing; notice was given to the railroad company; it was present at the hearing, introduced evidence, appealed to the circuit court, where it appeared again, and then appealed to this court. And, under the rule announced in the case relied on by appellant, the appellants in this case had ample notice, and the contention that the case should have been dismissed because of the failure to file notice elsewhere is without merit. In the next case cited by appellants, Chicago N. W. Ry. Co. v. Hamilton Co., 182 Iowa 60, 165 N. W. 390, there is no question of notice at all, but this was also a drainage case, and was affirmed by the Iowa court. It does not, in fact, decide anything with reference to notice.

It is next contended by appellants that this court affirmed the .judgment of the Pulaski Circuit Court with certain modifications. We do not agree with appellants in this contention. There was no modification of the order by this court. This court said: “This is an appeal from an order of the circuit court of Pulaski County, Second Division, affirming an order of the Railroad 'Commission requiring appellants to erect umbrella sheds along the tracks of each of the railroads at Hoxie, where they intersect, from the depot jointly used by them to the place where the trains stop to discharge and receive passengers.” St. Louis-S. F. Ry. Co. v. Albright, 176 Ark. 762, 4 S. W. (2d) 911.

That was the order of the Railroad Commission and the order of the circuit court. The order required them to erect sheds. The opinion goes on to recite that it is shown that certain of the appellants ’ trains would have to make two stops, because they would have to make one stop to take water and then another for unloading and loading passengers. The court further said, on page 765: “We think it the clear and reasonable duty of appellants to stop' their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are 'compelled to come and go one hundred and fifty yards in order to ¡board the trains or reach the depot.” And, because of this statement in the opinion of the court, it is contended that it modified the order of the Railroad Commission. But just below this statement is the following: “The requirement of the construction of necessary facilities in the operation of the business of a public carrier is in no sense taking its property without due process of law. The contention that the order to build the sheds will unnecessarily burden interstate commerce is without foundation in fact. * * * We cannot agree that there is no necessity for the sheds. The record reflects the necessity for them in order to protect passengers from the elements, because appellants stop certain of their passenger trains an unreasonable distance from the depot for the reception and discharge of passengers.”

Of course, if they stopped at the depot where passengers would be protected, there would have been no necessity for sheds and no necessity for the order, hut they did not do that; they claimed that it is impracticable to do so, and, for that very reason, the order was not to stop the trains, but to build the sheds, and there was no modification by this court of the order of the Bailroad Commission or order of the circuit court.

It is contended by appellants that this court had authority to modify, and they base that argument on a statement of the statute reading as follows: “And in such case the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable.” Section 21, act 124 of the Acts of 19-20L

Under that, what is this court to do? This court may and shall review the evidence. It did that in this case, and held that the evidence was sufficient to justify the order to build the sheds. This was the finding of fact that it made. There cannot be any controversy about it nor any misunderstanding about it if the whole opinion is read.

There is no contention either in this case or the other that the trains were stopped at the depot, but it is contended by appellant, because the prosecuting attorney put another count in his information, charging the railroad companies with failure to stop the trains, and that, because there was no proof that they did not stop the trains, they are entitled to the presumption that they have complied with the order of the commission because they stopped the trains. In the first place, the order of the commission, and the judgment of the courts was to construct sheds and not to stop their trains, and there was no occasion for the second count in the information. It was not based on any order of the commission or of the court. They were not fined under this count, and this count passes out of the case.

Appellants say: "We know of no law up to this time nnder which the State can (bring even railroad corporations into court under four hundred oases against them and secure a conviction or judgment thereon under any statute, penal in its nature or otherwise, without having some evidence as a predicate for such finding or judgment.”

Certainly they will not contend that there is not ample evidence to support the claim that the appellants violated the order of the Eailroad Commission in its failure to construct the sheds. The order was made to construct the sheds, and it is admitted in this case that the sheds have not been constructed. There was no order about stopping trains; hence no order for stopping trains could be violated. This also disposes of the third and fourth contentions of appellants.

It is next contended that the justice of the peace had no jurisdiction. The statute upon which the information is based expressly makes the failure to comply with the order a misdemeanor, and it is also expressly stated that every day of such violation shall constitute a separate offense. This is not a civil suit, but it is a prosecution for the violation of the order of the commission, and the statute provides for a fine, and the minimum fine was assessed against each of the parties.

Section 8568, referred to by appellants, makes it the duty of the railroad company to blow a whistle or ring a bell, and provides for a $200 penalty for negligence. It provides also that one-half of the penalty shall go to the informer and the other one-half to the county. In other words, it is a civil action for a penalty. The statute in that case did not make it a misdemeanor, and it did not provide- for the payment of a fine, but expressly stated that there should be a penalty of $200 for every neglect.

Section 6645 of Kirby’s Digest is quoted in support of the theory that only one fine can be assessed against appellants. That statute did not provide that each day should constitute a separate offense. Moreover, it made tlie parties liable to the party aggrieved. This question was settled by a decision of this court in the case of St. L. I. M. & S. R. Co. v. State, 99 Ark. 1, 136 S. W. 938, and settled against the contention of the appellants.

We therefore hold that the appellants, having notice and being present at the hearing*, are bound by the order made by the Eailroad Commission and affirmed by this court; that there was no modification of the judgment of the circuit court or the order of the Eailroad Commission ; that the findings of fact by the 'Supreme Court were exactly the same as the findings by the lower court; that the statute makes the failure to erect the sheds a misdemeanor ; that is, a failure to comply with the order of the commission is a misdemeanor, and the statute makes each day’s failure a separate offense. There is no contention that the sheds were built. That is the only order the commission made.

The .judgment of the circuit court is therefore affirmed.