84 Kan. 264 | Kan. | 1911
The opinion of the court was delivered by
Chapter 198 of the Laws of 1895 (amended by Laws 1905, ch. 352, § 1, Gen. Stat. 1909, §§ 7160-7162) provides that whenever it may be necessary for any or all of the officers or men of the Kansas national guard or Kansas reserve militia to travel upon any railroad of the state, under orders from competent, authority to perform military duty, the transportation shall be furnished at the rate of one cent per mile for the distance traveled by each person. Orders for transportation issued by the adjutant general must be honored in lieu of fare, and then be presented to the military board, to be audited and paid at the fixed rate. Willful refusal on the part of the agent of a railroad company to observe the terms of the act is punishable by fine. In June, 1909, the petitioner, as agent of the
In 1883 (Laws 1883, ch. 124, § 1; see Gen. Stat. 1909, § 7198) the legislature fixed three cents per mile as the maximum rate for carrying adult passengers, and this rate has not since been changed by law. In 1907 the board of railroad commissioners issued an order fixing the maximum rate at two cents 'per mile. The order is still in force, and at all times material to the controversy was being observed by the railroad companies. These measures were adopted pursuant to the power of the state to regulate rates and protect the traveling public from unjust exactions, and they reflect the judgment of the constituted authorities as to what is reasonable for the railroads to charge and for the people to pay. Presumably two cents per mile is a reasonable rate for all adult passengers, or it would not have been promulgated and would not be maintained.
Ordinarily, when the ratemaking power of the state has been exercised and a reasonable maximum fare for people generally has been established, it is not then competent for the legislature to -compel the railroad companies to make exceptions in favor of certain individuals. The legislature of the state of Michigan amended the general railroad law of that state so that it required the sale of one-thousand-mile tickets at a
“The power of the legislature to enact general laws-regarding a company and its affairs does not include the power to compel it to make an exception in favor of some particular class in the community and to carry the members of that class at a less sum than it has the right to charge for those who are not fortunate enough to be members thereof. This is not reasonable regulation. ... If the general power exist,' then the legislature can direct the company to charge smaller rates for clergymen or doctors, for lawyers or farmers or school-teachers, for excursions, for church conventions, political conventions, or for all or any of the various bodies that might desire to ride at any particular time or to any particular place.
“If the legislature can interfere by directing the sale of tickets at less than the generally established rate, it can compel the company to carry certain persons or classes free. If the maximum rates are too high in the judgment of the legislature it may lower them, provided they do not make -them unreasonably low, as that term is understood in the law; but it can not enact a law making maximum rates-, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper. . . . The legislature having fixed a maximum rate at what must be presumed, prima facie, to be also a reasonable rate, we think the company then has the right to insist that all .persons shall be comne-lled to pay alike, that no discrimination against it in favor of certain classes of married men or families, excursionists or others, shall be made by the legislature. If otherwise, then the company is compelled at the caprice or whim*267 of the legislature to make such exceptions as it may-think proper and to carry the excepted persons at less than the usual and legal rates, and thus to part in their favor with its property without that compensation to which it is entitled from all others, and therefore to part with its property without due process of law. The affairs of the company are in*this way taken out of its own management, not by any general law applicable to all, but by a discrimination made by law to which the company is made subject. Whether an act -of this nature shall be passed or not is not a matter of policy to be decided by the legislature. It is a matter of right of the company to carry on and manage its concerns subject to the general law applicable to all, which the legislature may enact in the legal exercise of its power to legislate in regard to persons and things within its jurisdiction. ... In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health or proper convenience of the public, but an arbitrary enactment in favor of the persons •spoken of, who in the legislative judgment should be carried at a less expense than the other members of the community. There is no reasonable ground upon which the legislation can be rested unless the simple ■decision of the legislature should be held to constitute such reason.” (pp. 692-698.)
This court is not inclined to the view that the power of the legislature is completely exhausted by a maximum-rate regulation, and does not so interpret the decision quoted. But members of the national guard can not be segregated from the body of the state’s citizens and made a preferred class, unless they sustain some relation to transportation by rail which, in the nature of things, indicates they should have the benefit of an ■exceptional rate. Classification, to be valid, must be
So far the act in question has been regarded as one relating in some way to the subj ect of railroad regulation. That is not its true character. It is a revenue .measure, which seeks to protect the treasury and keep down the rate of taxation upon the general property of the state by levying a special assessment upon railroad companies for the maintenance of the military department of the government. Viewed from this standpoint, the statute selects railroad companies from among other common carriers, corporations and property owners- of the state, places them in a class by themselves, and imposes upon them a specific burden, supposedly for the public welfare. In many instances this may be done, but it can not be done where the exaction is made to defray an expense having no more relation to the business of railroading than it has to any other business enterprise conducted within the state. This limitation was clearly stated by Mr. Justice Field in the case of Charlotte &c. Railroad v. Gibbs, 142 U. S.
“If the tax were levied to pay for services in no way connected with the railroads, as for instance, to pay the salary of the executive or judicial officers of the state, whilst railroad corporations were at the same time subjected to taxation upon their property equally with other corporations for such expenses, and other corporation's were not taxed for the salaries mentioned, there would be just ground of complaint of unlawful discrimination against the railroad corporations, and of their not receiving the equal protection of law.” (p. 391.)
The principle involved has been applied. in many cases. A railroad company may be required to build fences and cattle guards (Missouri Pacific Railway Co. v. Humes, 115 U. S. 512), to erect gates, plank crossings and maintain flagmen (Chicago, Burlington &c. R’d v. Chicago, 166 U. S. 226), and to bear the whole cost of making changes of grade at crossings (N. Y. & N. E. Railroad Co. v. Bristol, 151 U. S. 556), because the expenditure is necessary for the protection of persons and property otherwise endangered by the operation of the road, and because the company itself is specially benefited by the greater security which it obtains for the prosecution of its business. Examinations of railway employees may be required and the fees therefor be charged to the railway companies.
An effort is made to justify the statute as an exercise of the military power of the state to preserve peace, to suppress riot's and insurrections and to repel invasion. These are ends which every sovereignty must have the power to attain, and every citizen holds his property upon the implied condition that it must be surrendered when needed for the preservation of the government. Fields and farms may be traversed and occupied, sub
“There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.
“But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.
“In deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others as well as*273 his own observation. And if, with such information as he had a right to rely upon, there is reasonable ground for -believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterward that it was false or erroneous, will not make him a trespasser. But it is not sufficient to show that he exercised an honest judgment, and took the property to promote the public service; he must show by proof the nature and- character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for a jury to say whether it was so pressing.as not to admit of delay; and the occasion such, according to the information upon which he acted, that private rights must for the time give way to the common and public good. . . . The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn v. Fabrigas, 1 Cowp. 180, illustrates the principle of which we are speaking. Captain Gambier, of the British navy, by the order of Admiral Boscawen, pulled down the houses .of some sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet it was an invasion of the rights of. private property, and without the authority of law, and the officer who executed the order was held liable to an action, and the sutlers recovered damages against him to the value of the property destroyed.
“The case shows how carefully the rights of private property are guarded by the laws of England; and they are certainly not less valued nor less securely guarded under the constitution and laws of the United States.” (pp. 134-136.)
When, however, the government is in no extremity in fact which requires the suspension in whole or -in part of the civil laws, contributions- to its support can not be levied upon private persons or corporations except pursuant to laws which prescribe the occasions, modes, conditions and agencies for the appropriation and which bear equally upon all those who are similarly situated.
The petitioner is discharged.