Commonwealth v. Louisville & N. R. R.

112 Ky. 783 | Ky. Ct. App. | 1902

Opinion op the court bt

CHIEF JUSTICE GUFFY —

Affirming,

This is an action instituted by the Commonwealth against the appellees seeking to recover judgment for the sumí of $300, and to obtain a forfeiture of the charters of said companies, on account of the failure of said companies to comply with section 772 a, Kentucky Statutes. So much of said section as is deemed applicable to the case on trial reads as follows: “That all corporations, companies, persons or associations owning and operating a railroad line in this Commonwealth or any branch of any railroad in this Commonwealth, the length of which exceeds five miles, shall be required and- they are hereby directed to run at last one passenger train each way on every day of the year, Sundays excepted, over said line: Provided, however, that the operation of a train known as a mixed train, on lines carrying passengers and freight in the manner in which both passengers and freight are carried, if operated in accordance with the provisions of this act, shall be deemed a compliance therewith.” It is further provided, “that any corporation, association, company or person who shall willfully violate the provisions of this act, shall be liable to a forfeiture of the charter of the said corporation, company or association, and upon conviction in a court of competent jurisdiction, - shall be fined not less than $300.00 for each offense, and the failure of such 'corporation, company, association or person to run a train either way on any day during the year, Sundays excepted, shall be considered and treated as a separate and distinct offense.” It is further provided that the penalties may be recovered by indictment or by information by the county or Commonwealth’s Attorney or by an ordinary suit for penalties. This action was instituted under the provisions of the statute aforesaid. The defense may be treated as a plea of not guilty. The agreed facts show that the line of road specified in' the appeal is what is known as the “cut off,” leaving the line of what is now the Louisville & Nashville Railroad at Christiansburg, and thence to Shelbyville, being a distance of more than eight miles from Christiansburg to Shelbyville; that the line .aforesaid is operated by the appellee Chesapeake & Ohio Railway Company; that it runs two trains each day each way over the said line, but that it will not accept passengers for Shelby-ville except at Bagdad, which is east of Christiansburg. We are of opinion from the testimony in the case that the railroad is jointly operated by the two appellees. It is insisted for the Commonwealth that the plain meaning of the statute in question is that the railroad should be so operated as to accommodate the passenger traffic between Christiansburg and Shelbyville. The contention of the appellees is that they have not violated the statute in question, and that nothing is said in the statute as to carrying passengers or traffic on the line aforesaid. It seems to us that' applying the strict rule in penal actions to the case at bar justified the second instruction given by the court below, which was to the effect that if the appellees really ran as many as one train each way each day upon said road the jury should find the defendants not guilty. It may be that the intent of the Legislature was to require the operation of trains on the roads indicated in the act for the accommodation of passengers and traffic thereon, but it is clear that the act in question does not so read, and under the well-settled rules of construction of penal statutes we are not authorized to hold that a failure tó so operate the road as to accommodate passengers brings the companies within the purview of the act in question, or, in other words, subjects them to the penalty denounced by the statute aforesaid.

Some reference is made to the powers of the railroad commission in regard to the operation of railroads. It is also argued that under the law railroads, being common carriers, are bound to furnish reasonable facilities for passengers and traffic thereon; but neither of these questions is before us for decision, and we expressly decline to give any opinion thereon. It is, however, clear to us that the appellees have not violated the letter of the statute aforesaid, and it therefore follows that the judgment appealed from must be and is affirmed.