84 Neb. 607 | Neb. | 1909
Lead Opinion
Action under chapter 107, laws 1905, being sections 10606 and 10607, Ann. St. 1907. Judgment was rendered in>favor of plaintiff, and defendant appeals.
This case has been elaborately briefed and exhaustively argued by counsel for the respective litigants, and by friends of the court, but more attention has been given to the validity of the statute than to the facts in the instant case. The act is as follows: “Section 10606. It is hereby declared and made the duty of each corporation, individual, or association of individuals, operating any railroad as a public carrier of freight in the state of Nebraska, in transporting live stock from one point to another in said state in car-load lots, in consideration of the freight charges paid therefor, to run their train conveying the same at a rate of speed so that the time consumed in said journey from the initial point of receiving said stock to the point of feeding or destination, shall not exceed one hour for each eighteen miles traveled including the time of stops at stations or other points, provided, in cases where the initial point is not a division station and on all branch lines not exceeding 125 miles in length, the rate of speed shall be such that not more than one hour shall be consumed in traversing each twelve miles of the distance including the time of stops at- stations or other points, from the initial point to the first division station or over said branches. The time consumed in picking up and setting out, loading or unloading stock at stations, shall not be included in the time required, as provided in
“Section 10607. Any individual, corporation, or association of individuals, violating any provisions of this act shall pay to the owner of such live stock, the sum of ten dollars for each hour for each car it extends or prolongs the time of transportation beyond the period herein limited as liquidated damages to be recovered in an ordinary action, as other debts are recovered.”
Concerning the claim that the enforcement of the statute will amount to the taking of defendant’s property without due process of law, it may he broadly stated that the carrier is not situated with reference to the public, and the statute, as natural persons engaged in the ordinary vocations in life are with reference to each other. A speed of 12 or 18 miles an hour for defendant’s freight trains is not prima facie unreasonable, because defendant’s testimony shows that it operated said trains on some parts of its railway at the rate of 30 miles an hour. It may be expensive for the railway in every instance to maintain the average speed demanded by the statute. A car of live stock transported from a branch line to a division may not reach the latter station in time to be included within a freight train going in the desired direction on the main line, and to devote a locomotive exclusively to the one car for any considerable distance would entail a considerable expense for the carrier. However, the railway company is permitted to charge remunerative rates for the transportation of freight. Its methods of bookkeeping- and of collecting and tabulating statistics are such that it can with reasonable exactitude ascertain the cost to it,'and a fair charge to the shipper for transporting any particular property. If the legislature has by regulating the service increased the expense of transporting live stock in Nebraska, and to comply with the statute will wipe out a reasonable margin of profit for the carrier on all of its intrastate business, it has ample recourse in an increase of rates, so that in the end, viewed as a general proposition, the enforcement of the laAV to the extreme suggested by defendant’s learned counsel will not deprive the carrier of any just profit nor take its property without due process of law. In the instant case,
Before the enactment of this statute, the carrier was liable in damages to the shipper if it unnecessarily and unreasonably delayed the transportation of live stock committed to its possession for carriage. Nelson v. Chicago, B. & Q. R. Co., 78 Neb. 57; Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140. The legislature, in passing from the subject of compensation to that of service, kept well within its constitutional rights, and the inquiry should be confined to ascertaining whether the operation of the law will impose such an undue burden upon the carrier as to take from it something for which the public will not give an adequate return. It is a matter of common knowledge that live stock confined in a freight car deteriorates in condition, and that, if the animals are to be placed on the market within a short time of the termination of transportation, the depreciation is not confined to a shrinkage in weight, but to many other factors difficult to prove, but actually existing and seriously affecting the market value of said property. As the damage accruing from the protracted confinement of stock is difficult to prove with reasonable exactitude, and yet always exists, the legislature has the power to provide for liquidated damages. Such legislation is not unsound in principle and has been upheld in many courts.
Counsel for defendant argue that the statute purports to give more than compensatory damages, and therefore is controlled by Atchison & N. R. Co. v. Baty, 6 Neb. 37, but that case merely disapproved a statute that purported to give double damages, and, if the act under consideration provided for the recovery of double or treble damages, we would not hesitate to apply the earlier case to the instant one. Such is not the case. On more than one occasion we have upheld the right of the legislature to liquidate damages that may arise from the default of a person under circumstances which preclude the ascertainment of the actual damages suffered by the aggrieved person. In Graham v. Kibble, 9 Neb. 182, a recovery of
There is some evidence in the record to the effect that one car of stock was transported from Ashland to South Omaha via Fort Crook, a somewhat longer route than by Gretna; that the grades on the former line are lighter than on the latter, and this fact and a congestion of trains on the Gretna route impelled the choice of the Fort Crook line. The pleadings, however, do not admit the consideration of this extra mileage, which we are of opinion might have been considered had a proper issue been presented. There is also some evidence that at the stations inter
There is also considerable evidence tending to show, as a general proposition, that in the management of its traffic defendant is compelled to sidetrack trains and wait for passing trains; that defendant has installed a block service on its main line, and must at times delay a train until the one preceding it going in the same direction has cleared the block before the former may be permitted to enter it, but no one can apply this evidence so as to find as a matter of fact that as to any of the shipments a delay for any definite period was occasioned by the natural results of a careful operation of defendant’s trains. It will therefore be unnecessary to consider whether those facts, if properly presented, would have constituted a defense to this action.
The judgment entered, to the extent of $240, is excessive. Therefore, unless the plaintiff within 30 days of the filing of this opinion remits from the judgment recovered in the district court the sum of $240 as of the date said judgment was entered, this case will be reversed and the cause remanded for further proceedings; but, if such remittitur is filed as aforesaid, the judgment of the district court will be affirmed, and in that event each party, will pay its own costs in this court.
Affirmed.
Concurrence Opinion
concurring.
I concur in the majority opinion, but only upon the ground that we are concluded by numerous former decisions of this court upon kindred questions. I have always questioned the power of the legislature arbitrarily to
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion. As I view the act in question, it is unconstitutional for several reasons; but for the sake of brevity I shall discuss but one of them.
It clearly appears from the opinion of my associates that, in order to uphold the statute, they have been compelled to read into it certain exceptions to its operation, and have intimated that the court may, in a proper case, consider others. We have thus enlarged and changed the act by Avhat seems to me to be judicial legislation to such an extent as to make a law Avhich is quite different from the one passed by the legislature. It avüI be observed that, by the plain language of the statute, common carriers, in transporting live stock in car-load lots over their lines in this state, must maintain a speed of 18 miles an hour on their .main and 12 miles an hour on their branch lines, and as a penalty for a failure to maintain that rate of speed they must pay to the shipper the sum of $10 a car an hour for each and every hour consumed beyond said' time limit, even if no damages are caused by the delay. To the operation of this 1rav the statute itself contains no exceptions and permits of no excuses. One of the defendant’s contentions is that the laAV is unconstitutional because it contains no exemption from liability even Avhere
•It is conceded, in effect, by the majority opinion that without the last-named exceptions the statute is unconstitutional. It will be observed that as to the plaintiff’s first cause of action, Avhich Avas for a delay which occurred on Sunday at the feedyards in Lincoln, the defendant is held not liable. It seems clear that to this extent the opinion amends the law, and this therefore amounts to judicial legislation. This should not be resorted to in order to uphold an act AAdiicli, as it comes from the legislature, in effect deprives the carrier of his property Avithout due process of laAV. In In re Contest Proceedings, 31 Neb. 262, it was said: “A casus omissus in a statute cannot be supplied by a court of law, for that would be to make Iuavs.” Where the Avords of a statute are plainly expressive of an intent not rendered dubious by the context, the interpretation must carry out that intent. It matters not in such a case Avliat the consequences may be. It has therefore been distinctly stated, from early times doAvn to the present day, that judges are not to mould the language of the statute in order to meet an alleged convenience, or an alleged equity; are not to be influenced by any notions of hardship, or of Avhat, in their vieAv, is right and reasonable. They are not to alter clear words, though the legislature may not have contemplated the consequences of using them; and, hoAvever unjust, arbitrary or inconvenient the intention may be, the statute must receive its full effect. What is called the policy of the government with reference to any particular legislation is too unstable a foundation for the construction of a statute, The clear language of a statute can be neither restrained nor ex
Again, the power of construction is restrained by certain well-settled rules, and, if this were not so, its use would often amount to usurpation of legislative power; and, as was said in Gage v. Currier, 4 Pick. (Mass.) 399: “A violation of the constitution we are sworn to support.” In Hyatt v. Taylor, 42 N. Y. 258, it was held that “no rule of public policy, no necessity, no violation of right, no evidence of intent derivable from the terms of the statute or from its design, permits * * * a restriction of its plain and explicit language.” I am therefore of opinion that when, in order to prevent a law from being declared unconstitutional, it is necessary to amend it by judicial construction, it is the duty of the court to promptly declare it unconstitutional, and thus avoid usurping legislative powers.
Eor the foregoing reasons, among others, it seems clear to me that the law in question should be declared uncon