State ex rel. School Fund v. Wabash, St. Louis & Pacific Railway Co., 83 Mo. 144

State ex rel. School Fund v. Wabash, St. Louis & Pacific Railway Co.

83 Mo. 144 | Mo. | 1884

Lead Opinion

Norton, J.

The plaintiff filed the following statement before a justice of the peace of Gentry county as her cause of action: Plaintiff states that the defendant is a railroad corporation in the state of Missouri, organized under and by virtue of the statutes of said state, and is engaged in the transportation of passengers and property. That said railroad crosses the St. Joseph and Des Moines Railroad, a corporation under and by virtue of ‘^the statutes of said state, near Darlington, Gentry county, Mo., upon the same grade. That the character of the land at said crossing will admit of the erection of a depot thereon. That the defendant, either j ointly with the said St. Jpseph and Des Moines RailroadCompany, or separately, has failed, neglected and refused to erect, build or maintain a. depot, passenger house or waiting room at said crossing on the 11th day of July, 1881, as under the statutes in such cases made and provided the defendant was required. Wherefore the plaintiff asks for judgment against the defendant for the sum of twenty-five dollars and costs.

Plaintiff had judgment before the justice, and on defendant’s appeal again had judgment from which the defendant has appealed to this court. On the trial defendant objected to the introduction of any'evidence on the following grounds: 1. Because the petition, or statement, did not aver facts sufficient to constitute a cause of action. 2. Because the statute under which the action was commenced is repugnant to the constitution of the United States and the constitution of the state.

Plaintiff’s Cause of action is based upon the following statute: “Every railroad corporation in this state, *147which now is or may hereafter be engaged in the trans■portation of passengers or property,. shall give public notice of the regular time of starting and running its cars, and shall, furnish sufficient accommodations for the transportation of all such passengers, baggage, mail and express freight as shall, within a reasonable time previous thereto, be offered for transportation at the place of ¡starting, at the junctions of other railroads, and at the several stopping places; and shall, at all crossings and intersections of other railroads, where such other railroad and the railroad crossing the same are now or may hereafter be made upon the same grade, and the character of the land at such crossing or intersection will admit of the same, erect, build and maintain, either jointly with the railroad company whose road is crossed, or separately by ■each railroad company, a depot or passenger house and waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival and departure of trains at such junction or railroad crossing, and shall keep such depot or passenger house warmed, lighted and open to the ingress and egress of all passengers a reasonable time before the arrival and until after the departure of all trains carrying passengers on said railroad or railroads; and they are hereby required to stop all trains ¡carrying passengers at the junction or intersection of other railroads a sufficient length of time to allow the transfer of passengers, personal baggage, mail and express freight from the trains of railroads so connecting or intersecting, or they may mutually arrange for the transportation of such persons and property over both roads without change of cars; and they shall be compelled to receive all passengers and freight from such connecting or intersecting roads whenever the same shall be delivered to them. Every railroad corporation or company which shall fail, neglect or refuse to comply with the conditions of this section from and after the first day of July, 1881, shall, for each day said corporation or railroad company refuses, neglects or fails to comply therewith after said *148day forfeit and pay the sum of twenty-five dollars, which may be recovered in the name of the state-of Missouri to the -use of the school fund of the county wherein said crossing is situated; and it shall be the duty of the prosecuting attorney to prosecute for and recover the same.” R. S. § 797, as amended by Laws, 1881, p. 77.

It will be observed that this is a penal statute. It enjoins upon railroad companies the duty of doing certain things which, if not done, subjects them to the payment of a fixed penalty, and, being penal, it should be strictly construed, and so as not to enlarge the liability it imposes nor allow a recovery under it, unless the party seeking it brings his case strictly within the terms or conditions authorizing it. Parish v. Railroad, 63 Mo. 284. - Giving force and effect to this rule we must hold that the first objection to the sufficiency of the statement-is well taken. The evident purpose of the statute, in requiring railroad companies carrying passengers to build depots or station houses * * * at all places where they cross each other, was to afford facilities not so much to those living in the immediate vicinity of such crossing, as to the travelling public at large, and to that class of persons travelling on one railroad destined for some point on the railroad which it crosses. If this was the purpose of the law before the obligation to build a depot at the crossing of two railroads could arise, it must appear that each of said roads was engaged in carrying passengers, and for the reason that it does not so appear in the statement, it fails to set forth a cause of action. It is averred that defendant company was engaged in carrying passengers, but does not aver that the St. Joseph and Des Moines Railroad was so engaged. All that is averred in the statement may be taken as true, but for lack of the above averment, no recovery could be had. The objection to the admission of any evidence under it ought therefore to have been sustained, and error was committed in overruling it.

It is further insisted that the requirement of the *149statute that defendant should appropriate its money in constructing a depot or passenger house at all places where it crosses another railroad is an appropriation of private property to a public use without just compensation, and is therefore in violation both of the state and federal constitutions. Counsel have made an ingenious argument in support of this position, the fallacy of which consists in the assumption that the statute in question was but an exercise on the part of the legislature of the right of eminent domain. It may be conceded that the state, in the exercise of the right of eminent domain, cannot take private property for private purposes at all, and it can only take private property for public use upon the payment of a just compensation to the owner whose property is taken. Such statutes as the one in question have never been upheld on the ground that the right of eminent domain conferred the power to pass them, but their validity has been bottomed on the principle that, when private property is devoted by the owner to a public use, some right of such use is reserved or inheres in the legislature to regulate the use. It is upon these principles that such laws as licensing and regulating ferries, requiring railroad companies to build fences on each side of their tracks, to erect and maintain cattle guards, gates and farm crossings have been upheld. In the case of Munn v. Illinois, 94 U. S. 113, when this subject came before the court, it is said: “Property becomes clothed with a public interest when used in a manner to make it of public consequence and affect the community at large; when, therefore, one devotes his property to an use in which the public has an interest he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. ITe may withdraw his grant by discontinuing the use, but so long as he maintains the use he must submit to the control.”

An illustration of the principle is to be found in *150Lord Hale’s treatise “He Jure Maris,” 1 Harg. Law Tracts, 6, where it is said “a person may make a ferry for his own use or the use of his family, but not for the common use of all the king’s subjects passing that way, because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation, viz: that it give attendance at due times, keep a boat in due order, and take but reasonable toll, for if he fail in these he is finable.” So Lord Ellenborough in the case of Allnut v. Inglis, 12 East 527 observed: “There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases on his own property, or the use of it, but if for a particular purpose the public have a right to resort to his premises, make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of the monopoly, he must as an equivalent, perform the duty attached to it on reasonable terms.” So in the case of Thorpe v. R. and B. R. Co., 27 Vt. 140, when the court was called to pass upon the validity of a law requiring railways to erect and maintain cattle guards at farm crossings, Redfield, C. J., in an exhaustive and elaborate opinion, in which the authorities bearing on the question are reviewed, held that the power of the legislature to control railways in that respect may be found in' the general control of the police of the country, which resides in the law making power in all free states.

While the defendant company is a private corporation and the franchise and property acquired by it private property, the use to which it is applied is nevertheless a public use. The general assembly has delegated to railway companies the power to exercise the right of eminent domain, and to take private property upon which to construct their roads upon the sole ground that the property so taken is to be devoted to a public use, and that they were created and brought into being for *151public purposes; and it is.upon this ground that the seizure of property for their use, and the validity of county and municipal subscriptions to such enterprises have' been maintained by the courts. Such being the designs of their creation, the public having an interest in the use have the right, through the legislature, to subject them to such reasonable regulations as will effectuate and promote the object of their creation. The requirement to build suitable depots or passenger houses at the crossing of railroads for the accommodation oí the public desiring to avail themselves of the use to which the property of the corporation is devoted, and in which the public has an interest is not, in our opinion, an-unreasonable regulation, and may be classed as coming within a proper exercise of the police power of the state, and directly in aid of the very object for which such corporations were created. Such a regulation neither disturbs any chartered rights nor impairs the obligation of any contract relation existing between the, state and the corporation, but on the contrary was designed do facilitate public travel on the roads respectively crossing each other.

Judgment reversed and cause remanded for insufficiency of statement, in which all concur, Judges Hough and Henry and Sherwood concurring in the result.

Concurrence Opinion

Henry, J.,

concurring : I concur in the reversal of the judgment, but express no opinion at present on the question of the constitutionality of the act of the legislature requiring railway companies to erect and maintain depots where their roads cross and are crossed by other railroads. I have not yet had an opportunity to give the subject the consideration which its importance demands. I have not been able to find an adjudication on the precise question, either in the United States or in England. No such case is cited in the opinion delivered by Judge Norton for the court.