Railroad Commissioners v. Railroad Co.

26 S.C. 353 | S.C. | 1887

The opinion of the court was delivered by

Mr. Justice McIver.

[Omitting the statement.] Under the view which we take of this case, it will be not only unnecessary, but perhaps improper, for us to consider the questions mainly argued at the bar, for the reason that the proper parties for the adjudication of such questions are not now before the court, and in no view of the case can this action be maintained by the present plaintiffs.

It is conceded that the action is based upon section 1457 of the General Statutes, which reads as follows: “Whenever, in the judgment of the railroad commissioners, it shall appear that repairs are necessary upon any such railroad, or that any addition to the rolling stock, or any enlargement of or improvement in the stations or station houses, or any modification in the rates of fare for transporting freight or passengers, or any change in the mode of operating the road and conducting its business, is reasonable and expedient in order to promote the security, convenience, and accommodation of the public, they shall give information in writing to the corporation of the improvements and changes which they adjudge to be proper; and if the said company shall fail, within sixty days, to adopt the suggestions of said commissioners, they shall take such legal proceedings as they may deem expedient, and shall have authority to call upon the attorney general to institute and conduct such proceedings.” Now, whether this section confers upon the railroad commissioners the power to require a railroad company to establish and maintain stations wherever they may see fit, and to employ competent agents to manage the same, or whether they can restrain a company from discontinuing a station or from converting a regular station into a flag station, are all questions which we do not propose now to consider. For, even assuming, for the purposes of this Case only, that the railroad commissioners have all this power to the fullest extent claimed, yet we do not think the present action can be maintained by them.

It is clear that no penalties are provided in section 1457 for a violation of any of its provisions, nor is there any specific mode of enforcing them prescribed therein. From this it is argued, with much force, by the attorney general, that the court, under its general equity powers, may enforce compliance with the provisions of the section by mandatory injunction, or other appropriate remedy, upon the ground that there is no plain and adequate remedy at law. Without undertaking now to determine whether this position can be sustained, it seems to us that the ground upon which it rests, to wit, that there is no plain and adequate remedy at law, is without proper foundation to support it. While it is true that there is no specific penalty, and no particular mode of proceeding prescribed for the violation of its provisions, or for carrying the same into effect, in that section, yet we do find in section 1539 of the same chapter of the General Statutes that this omission has been supplied. So much of the last named section (1539), as amended by the act of December 21, 1882 (18 Stat., 18), as relates to this matter, reads as follows: “Each and every act, matter, or thing in this act declared to be unlawful is hereby prohibited; and in case any person or persons as defined in this act [and as so defined expressly embracing corporations], engaged as aforesaid, * * * shall omit to do any act, matter, or thing in this act required to be done, or shall be guilty of any violation of the provisions of this act, such person or persons shall, where no specific penalty is hereinbefore already provided for such violation, * * * for each offence forfeit and pay a penalty of not less than one thousand dollars, to be recovered by the State by action in any Circuit Court aforesaid, to be brought by the attorney general upon the request of the railroad commissioners.”

It is quite certain that the railroad commissioners have no powers except such as have been conferred upon them by statute, and assuming, as we have done, without, however, deciding the point, that section 1457 of the General Statutes does confer upon those officers the power to require a railroad company to establish and maintain a station house, to be placed under a competent agent, it would seem to follow that a refusal to. comply with such requirement -would be a violation of the terms of the act. It would be an omission to do an act required by the act to be done, for it is obvious that the whole legal force of the requirement is derived from the terms of the statute and not from the mere will of the railroad commissioners. But for the provisions of the statute, the requirement would be brutum fulmen, and a refusal to comply would be no violation of the law.

Hence, if the statute does authorize the railroad commissioners to make such requirement, it follows, necessarily, that a refusal to comply therewith becomes unlawful because of the terms of the statute,' and is a “violation of the provisions of this act.” This being so, inasmuch as section 1457 provides for no specific penalty for a violation of its provisions, the very case is presented which was designed to be covered by section 1539 — “where no specific penalty is hereinbefore already provided for such violation.” Hence, it follows that this action cannot be maintainable by the railroad commissioners, and that the defendant company if liable at all to the penalty imposed by section 1539, it can only “be recovered by the State by action in any Circuit Court aforesaid, to be brought by the attorney general upon the request of the railroad commissioners,” as provided in said section. Upon this ground, therefore, without considering or deciding the point upon which the Circuit .Judge rested his judgment, we are of opinion that the judgment dismissing the complaint was correct.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.