Adams v. Central of Georgia Railway Co.

66 So. 628 | Ala. | 1914

de G-RAFFENRIED, J.

Tbe reporter will set out tbe seventh count of tbe complaint and tbe defendant’s third plea as amended. He will also set out tbe plaintiff’s tenth and twelfth replications to tbe third plea as amended.

Tbe above pleadings will, when read in connection with what follows, explain our views as to tbe law of this case as it is presented by this record.

1. An examination of tbe seventh count of tbe complaint will show that it does not appear from that count bow far the stations of Dunnavant and Sterretts are from each other. When read in connection with tbe Replications, we presume that tbe two' stations are sufficiently far apart to render the fare at 2% cents per mile 13 cents, and to' render the fare at 3 cents per mile, 15 cents.

It is a matter of public history that when, through legislation, passenger fares were reduced, in this state, upon railroads of the class to which this defendant belongs, from 3 cents per mile to 2y% cents per mile, the defendant, along with certain other common carriers of passengers, filed a bill or bills in the federal court and attacked the acts making the change, upon the ground that they were confiscatory in their nature and were therefore unconstitutional. A part of the history of this litigation is given in Central of Georgia Ry. Co. v. Railroad Commission of Alabama (C. C.) 161 Fed. 925; Railroad Commission v. Central of Georgia Ry. Co., 170 Fed. 225, 95 C. C. A. 117; Western Railway of Alabama v. Railroad Commission, (C. C.) 171 Fed. 964; and Western Railway of Alabama v. Railroad Commission (C. C.) 197 Fed. 954.

This litigation was had, and this attack upon the constitutionality of the act was made, by the defendant, for its benefit; and if the allegations set up in plea 3 are true, then, for a time at least, the defendant reaped some benefit from the litigation and the attack. It is, however, a well-recognized proposition that, as a general rule, a disinterested party cannot plead the unconstitutionality of an act of the Legislature. “Only those whose rights are invaded by such statutes are entitled to question their validity.”—8 Cyc. 789; Smith v. Inge, 80 Ala. 283. Without regard to what rights the defendant obtained in the litigation to which reference is made in plea 3 as amended, if it saw proper to abandon those rights — -if it saw proper, regardless of the decree of the federal court, to accept the 2y2-cent rate instead of the 3-cent rate — then we do not see how it can now be heard to set up that decree as a defense to this action. If it saw proper to charge the general public 2% cents per mile, from Dunnavant to Sterretts, in accordance with the statute of the state, instead of 3 cents per mile as it claims it had the right to do under the decree of the federal court, then it had no right, as against this plaintiff alone, to claim its rights under that decree. It was bound, in so far as the plaintiff is concerned, by the act of the Legislature under which it acted when it fixed the fare for the traveling public from Dunnavant to Sterretts.- — -8 Cyc. p. 792, subd. “b,” and authorities there cited.

It seems clear that — regardless of the litigation which the defendant instituted for its benefit in the federal court, and regardless of the questions raised and determined in that litigation — if, in fixing its rates from Dunnavant to Sterretts, the defendants acted under the statute of Alabama, and “was holding itself out to the public as a common carrier of passengers at such rate,” then that statute, in so far as this case is concerned, must be looked to as the law of this case. The replications declare that the defendant was voluntarily so acting, and, if so, then plea 3 as amended is no answer to counts 7 and 8 of the complaint.

The trial court committed reversible error in sustaining the defendant’s demurrers to replications 10 and 12 to plea 3 as amended.

Reversed and remanded.

McClellan, Sayre and Gardner, JJ., concur.