165 S.W. 892 | Tex. App. | 1914
This suit was brought by the appellant against the appellee to recover penalties for the alleged violation by appellee of the provisions of an act of the Thirty-Second Legislature (articles 6581,
The learned trial judge prepared in writing and filed his reasons for sustaining the demurrer, which we here copy from appellee's brief:
"This suit is brought by the state to recover penalties for alleged violation of a general statute passed at the called session of the Thirty-First Legislature. 4th Ex. Sess., c. 6.
"Section 1 of the act in question reads as follows: `That every person, corporation or receiver engaged in constructing or repairing railroad cars, trucks or other railroad equipment, shall erect and maintain a building or *893 shed at every station or other point where as many as five men are regularly employed for such repair work, the building or shed to cover a sufficient portion of its track so as to provide that all men regularly employed in the construction and repair of cars, trucks, or other railroad equipment, shall be sheltered from rain and protected from other inclement weather. The provisions of this act shall not apply to points where less than five men are regularly employed in the repair service, nor at division terminals, or other points where it is necessary to make light repairs only, on cars, nor to cars loaded with time or perishable freight, nor to cars when trains are being held for the movement of said cars.'
"Section 2 of said act reads as follows: `Any person, corporation or receiver, who shall violate the provisions of this act, shall be liable to the state of Texas for a penalty in any sum not less than fifty dollars nor more than one hundred dollars, and each ten days of such failure or refusal to comply with the provisions of this act shall be considered a separate infraction, authorizing the recovery of a separate penalty.'
"The defendant enters a general demurrer to the state's petition, and contends that this act is too indefinite in its terms to be enforceable, as the term `light repairs' is a relative term, and wholly unintelligible.
"Article
"Article 6 of the Penal Code of Texas provides that: `Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the state, such penal law shall be regarded as wholly inoperative.'
"In G., C. S. F. Railway Co. v. Dwyer,
"In Chicago Northwestern Railway v. Dey (C. C. S.D. Iowa) 35 F. 876, 1 L.R.A. 744, a statute which attempted to penalize the railway company for charging `unreasonable rates' was contended to be too indefinite for enforcement. In passing upon this question, Judge Brewer, later one of the judges of the Supreme Court of the United States, in rendering the decision, said: `If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.'
"Later, in the case of Tozer v. United States (C. C. E. D. Mo., N. D., 1892) 52 F. 917, the same judge, in passing upon the undue preference clause of the Interstate Commerce Act, speaking for the court, said: `In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty' — and cites his opinion in the Dey Case, with other authorities, including Ex parte Jackson,
"In L. N. R. R. Co. v. Commonwealth (1896)
"In Waters-Pierce Oil Co. v. Texas,
"In Augustine v. State,
"In Cook v. State,
"In Baltimore Ohio Railway Co. v. Railroad Commission (C. C.) 196 F. 690, the court held that an order of the Railroad Commission, requiring railroads to equip their road engines with lights of a certain candle power, was entirely too indefinite for enforcement, because it did not state that the candle power provided for should be at the initial source of light, or should refer to the light produced at the initial source, plus the increased light produced by the reflector. "In the case of Chicago, I. L. Railway v. Town of Salem,
"In opposition to the contention made by counsel for the International Great Northern Railroad in this case, and as tending to support the act in question, I am cited to the case of the M., K. T. Ry. Co. v. State (decided by the Dallas Court of Civil Appeals of Texas, October 20, 1906), reported in 97 S.W. 721, construing and holding valid an act of the Texas Legislature requiring railroads `to construct, maintain, and keep in reasonably clean and sanitary condition, suitable and separate water-closets or privies, for both male and female persons, at each passenger station on its line of railway, either within its passenger depot, or in connection therewith, or within a reasonable and convenient distance therefrom at such station,' etc., penalizing the railroads for failure to comply therewith.
"In the case just cited, it was urged, as in the case at bar, that this statute was too vague, indefinite, and uncertain in its provisions to entitle the state to recover the *895 penalties sued for, the court saying: `If its provisions are so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, it will be held inoperative'; also that `the statute is penal in its provisions, and, this being so, it is to be strictly construed.'
"The Court of Civil Appeals rendering this decision says that the terms `clean and sanitary' are frequently used in ordinances and laws defining certain nuisances, and that they are usually held to be terms of such certain meaning, and so generally understood, that they can be safely submitted to a jury on an issue of fact, and cites with approval the case of Louisville Nashville Railroad Company v. Commonwealth,
"This Texas case and these two Kentucky cases construing the water-closet statutes are the only ones to which I have been referred by the state to support their contention as to the validity of the act in question. It will be noted that the Kentucky court holding valid the water-closet statutes is the same court that in L. N. R. R Co. v. Commonwealth, in an able and exhaustive opinion, held invalid a statute penalizing the railroads of that state for collecting more than a `just and reasonable rate of toll' for transportation of freight and passengers. It is also worthy of note that in the case of State v. T. N. O. Railroad, 103 S.W. 653, the San Antonio Court of Civil Appeals, with the opinion of the Dallas court before it, held the Texas water-closet statute invalid in the following language: `In addition, we think the terms, "suitable closet," "reasonably clean and sanitary condition," and "reasonable and convenient distance," as used in the act (at least the first and last of those designations), fail to designate with sufficient certainty what was required, and therefore failed to apprise the railway companies in advance of what they must do in order to conform to the act. The penal statute was therefore invalid. This matter is also referred to in the opinion in the case above cited.' The opinion just referred to, by the San Antonio court, is the opinion of the Supreme Court in M., K. T. Railway Company v. State, reported in
"It is clear in the court's mind that the state has a perfect right under its police powers to pass and enforce a statute having the same object in view as the present one, and the court also appreciates the importance of this law to the people it is designed to protect; but the question of the protection of the people against laws so indefinitely drawn that a reasonable person cannot know in advance of committing an act that he will be transgressing a law which may deprive him of his life, liberty, or property is of a still higher degree of importance to the average man.
"That the term `light repairs', as used in the present act, is a relative one there can be no doubt, and it also seems clear that the average man or juror has no definite conception as to what it means, when applied to repairing general railroad equipment. Of course it does not mean heavy repairs, and that brings us back to the question of what are `light repairs.' Do `light repairs' mean those only in which the railway company's outlay in dollars and cents for their accomplishment is small? If so, how small? Does it mean those repairs in which light materials only are used? If so, how light? Does it mean those repairs which can be quickly made? If so, how quickly? Or do all these elements in a greater or lesser degree enter into the definition of the term? Is it correct to say that reasonable minds and different juries, hearing minutely detailed by witnesses on the stand the ins and outs of the railway repair business, might not differ as to what `light repairs' of a railroad equipment mean? Might not one jury penalize the railway to-day, and another hold it guiltless to-morrow for conducting exactly the same kind of repairs? Is the term `light repairs.' *896 when applied to the equipment of a railroad, less ambiguous than the term `narrow and broad tires' when applied to a farmer's or teamster's wagon, held ambiguous in the Indiana case, or the terms held too indefinite to support penal statutes mentioned in the other cases above cited? Does the statute under consideration in any sense meet the requirements of certainty laid down by Judge Gaines of our Supreme Court in G., C. S. F. Railway Co. v. Dwyer, quoted above, or the requirements of any of the other courts or text-writers who have had occasion to consider the matter? It seems to me that there can be but one answer, and that in the negative.
"Holding the views I do as to the law of the case, it becomes my duty to sustain the defendant's general demurrer to plaintiff's petition, which is accordingly done."
This opinion of the trial court presents and discusses the question raised by the demurrer so clearly and exhaustively that it is unnecessary to add anything thereto, and we adopt it as the opinion of this court.
It follows that the judgment of the court below should be affirmed and it has been so ordered.
Affirmed.