St. Louis, Iron Mountain & Southern Railway Co. v. State , 99 Ark. 1 ( 1911 )

Kirby, J.,

(.after stating the facts). The power of the Railroad Commission to make the order violated, and for a violation of which appellant was indicted, is challenged because the Legislature could not rightfully authorize the Commission to make it, and because the making of such order was an unreasonable and arbitrary exercise of it, if it had such power.

Amendment No. 4 to the Constitution authorizes the creation of the Railroad Commission, and is> not a limitation of the authority that may be vested in it for effecting all the purposes for which it was designed and established; and if it could be regarded otherwise, the whole unrestricted power of the people necessary to the proper regulation of railroads may well be exercised by it under laws to correct abuses and prevent unjust discriminations and excessive charges by railroads, as authorized thereunder.

A State’s Constitution is not an enabling act nor a grant of enumerated powers, and the Legislature may rightfully exercise the power of the people subject to the limitations and restrictions fixed by the Constitution of the United States and the State. Straub v. Gordon, 27 Ark. 629; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee District, 59 Ark. 513; State v. Martin, 60 Ark. 343; Cox v. State, 72 Ark. 97.

A statute is presumed to be constitutional, and all doubts must be resolved in favor of its constitutionality; and in determining whether it is constitutional the court should look to see, not whether power has been expressly given to make it, but only to ascertain whether in express terms or by necessary implication it is forbidden. Patterson v. Temple, 27 Ark. 202; Duke v. State, 56 Ark. 485; Leep v. Railway Co., 58 Ark. 407; State v. Martin, 60 Ark. 343. It is no longer questioned that a State Legislature may by statute require railroads to perform certain duties to the public and furnish proper and adequate facilities for the transportation of freight and passengers intrastate, and that it may clothe commission's and administrative bodies with such power.

In Missouri Pac. Ry. Co. v. Kansas, 216 U. S. 275, the court said: “The court in Atlantic Coast Line Co. v. N. Car. Corporation Commission, 206 U. S. 7, reiterating the doctrine propounded in preceding cases, said (p. 19): ‘The elementary proposition that railroads, from the public nature of the business by them carried on and the interest which the public have in their operation, are subject, as to their State business, to State regulation which may be necessary, either directly by legislative authority, or by administrative bodies endowed with power to that end, is not and could not be successfully questioned, in view of the long line of authorities sustaining that doctrine.’

“Also in the same case, restating a principle previously often announced, it was held (p. 20) ‘that railway property was susceptible of private ownership, and that rights in and to such property rested in constitutional guaranties by which all private property was protected. Pointing out that there was no incompatibility between the two, the truism was reannounced that the right of private ownership was not abridged by subjecting-the enjoyment of that right to the power of reasonable regulations, and that such governmental power could not in truth be said to be curtailed because it could not be exerted arbitrarily and unreasonably without impinging on the enduring guaranties by which the Constitution protected property rights.’ ”

The Legislature had the right to require the construction of this spur track, and, having it, could delegate the power to the Railroad Commission, as it has done by said act of 1907. See Acts 1907, c. 338. If it had made the requirement directly by statute, instead of conferring the power upon the Railroad Commission to make it, its action would have been subject to judicial review only as being so arbitrary and unreasonable as to cause-it to be void for want of power, as this court held in Louisiana & Ark. Railway Co. v. State, 85 Ark. 12, and St. Louis S. W. Ry. Co. v. State, 97 Ark. 473.

The order of the Railroad Commission made under the authority delegated to it is subject to like review for the same cause, and, being- the tribunal provided by law for passing upon the question under the prescribed procedure as to the petition, notice, hearing, inspection of the locality affected, and granting of the relief prayed for, by requiring the construction of 'the spur track in question, its order, duly, made, is-presumed to be reasonable and just and a proper exercise of the power granted to it, unless and until the contrary is made to appear to the satisfaction of the court upon its subjection to such judicial review.

Appellant contends that it was deprived of a constitutional right by the court refusing to submit the matter to trial by jury upon its demand. No provision is made in the laws creating the Railroad Commission and prescribing its powers and duties nor in the act of 1907 under which the order for the violation of which appellant was indicted was made by it, expressly or by implication, for the trial or review of its acts and orders 'by a jury as questions of fact.

In Kirkland v. State, 72 Ark. 177, the court said: “It is true that the Constitution provides that “the right of trial by jury shall remain inviolate” (art. 2, § 7); and that no person shall “be deprived of life, liberty or property without due process of law” (art. 2, § 8). But it is well settled that it is only to cases at common law in which the issues of fact were triable by jury, and perhaps such as are of similar analogous nature, that the guaranty relied upon by the appellant extends. A jury trial is not necessary to constitute due process of law in every case. Govan v. Jackson, 32 Ark. 553; Williams v. Citizens, 40 Ark. 290.” "The question as to whether or not said order was unreasonable and arbitrary was one of law for the court, it never having been intended that a jury should pass upon as a question of fact whether the exercise of power by the Legislature or by the Railroad Commission under legislative enactment was unreasonable and arbitrary. Louisiana & A. Ry. Co. v. State, 85 Ark. 12; St. Louis S. W. Ry. Co. v. State, supra.

The court committed no error in refusing its demand for a jury to try the question under its said plea, and it waived its' right to a jury and consented to a trial by the court upon the question of its violation of the order made by the Railroad Commission.

The Railroad Commission, in the proper exercise of the powers conferred upon it by the act of 1907, had primarily the right to determine whether the public necessity and convenience required the establishment of the spur track for the loading and unloading of freight at Comal postoffice, and, having determined by an order duly made in accordance with said act, its determination will not be disturbed unless it is clearly shown that such requirement is unreasonable and arbitrary. In the determination of the reasonableness of the requirement the chief question to be considered is, whether such improvement as directed to be made is necessary to meet the needs and promote the convenience of the public. The fact that its establishment and maintenance might greatly exceed the revenues that would probably be derived from the business done at such place because of the improvement is a matter to be considered also, but does not necessarily control. The testimony shows that at and around the place where this spur track was ordered constructed is a settlement, a church, a store, postoffice building, a voting precinct, school house; that it is thickly settled, and within a radius of two and a half miles is a vast supply of cedar timber suitable for commercial purposes, and other timber which was being shipped out for fire wood. In close proximity to this point is some of the best farming lands of that county, and cotton is grown upon the farms, some of which is hauled to the gin in that neighborhood, which is nearer-the mail crane than the Comal siding beyond the creek, where there were no facilities for storing cotton for shipment. That people in the neighborhood were engaged in buying and raising and shipping stock at the time the improvement was ordered,-and that no stock pens or other facilities were provided at the Comal station for receiving shipments of that kind — virtually that there were no adequate shipping facilities provided nearer than Yellville, five miles away. The evidence tended to show that it was practicable to construct the spur track as directed towards the north for $710, and towards the south for $1,100, and that the probable revenue that would be derived would amount to $50 per month.

The evidence adduced by the Railroad Company tended to show that it would require a much greater amount to construct the spur, whether it was extended to the north or to the south, and that it would probably cost $75 a month to comply with the order in preparing to receive freight for shipment at the spur and issue bills of lading. But the order itself does not require that an agent shall be maintained at the spur where no depot nor station house existed, and where none was expected to be constructed, but only seems to indicate that the same practice as to receiving shipments of freight and issuing bills of lading should obtain there as at other spurs where no agent was maintained, and that it would be put to no additional expense, of course, on that account.

Under this proof we are not able to say that the Railroad Commission in making said order acted without reason and arbitrarily in determining that there was a public necessity for the establishment and maintenance of this spur track as directed by it. Neither do we think that such order and requirement is subject to the objection that it was in effect a regulation of or interference with interstate commerce, and on that account void. Such order requiring the construction of said spur at Comal postoffice where the public necessity warranted its being made was but the proper exercise of the police power of the State by the Commission to whom the authority was delegated, and was not an attempt to regulate, lay burdens upon or interfere with interstate commerce, which it could only affect incidentally, if at all. St. Louis S. W. Ry. Co. v. State, 97 Ark. 473; Sherlock v. Alling, 93 U. S. 99; Mobile County v. Kimball, 102 U. S. 691; Smith v. Alabama, 124 U. S. 465; Gladson v. Minnesota, 166 U. S. 427; Missouri, K. & T. Railway Co. v. Haber, 169 U. S. 613; Missouri Pac. Ry. Co. v. Kansas, 216 U. S. 262.

It is contended that said act and order of the Commission thereunder deprived appellant of its property without due process of law. This objection is not tenable, however, for the act provides that “no order shall be made until all parties concerned shall receive ten clays’ notice of the proposed action by the Railroad Commission.” In this case the notice was shown to have been given, the Railroad Company appeared before the Commission in opposition to the petition for the spur track, and made no complaint because of a lack or insufficiency of notice. Its superintendent was also present upon the ground at the site where the proposed improvement was to be made, and at both places had the right to, and did, urge all facts and objections that would tend to .•show the cost and difficulty of the construction of the improvement asked for and the want of any public necessity therefor. .After the hearing and decision it was properly notified of such .order by a copy served in accordance with the provisions of the act, and advised that it would comply with same, and requested and was granted time in which to do so. A legislative determination of this question would not be open to the objection that it was a deprivation of property without due process of law, and 'how much less reason is there for urging such objection to the action of the Railroad Commission, the tribunal provided by law for the ascertainment of the necessity for such improvement after an investigation is made of which it had notice, and in which it .appeared and took part. Having appeared in such tribunal and contested the matter throughout, it has no right to complain that The order of the commission deprives it of property without due •process .of law.

In Louisville & N. W. Ry. Co. v. Schmidt, 177 U. S. 230, 236, the court said: “It is no longer open to contention that the due process clause of the Fourteenth Amendment to the Constitution of the United States does not control mere forms of procedure in State courts or regulate the practice therein. All of its requirements are complied with, provided in the proceedings which are claimed not to have been due process of law the person condemned has had sufficient notice and adequate opportunity has been afforded him to defend.”

The indictment was sufficiently specific, and, having been properly returned into court by the grand jury and showing upon its face, and by such -return and filing and docketing in court in their presence and without objection by any of them, to be in all respects regular and in accordance with law, it will be presumed that it was duly found with the concurrence of the requisite number of the grand jury, and the court committed no error in refusing to allow a member of the grand jury to testify as to the manner of finding or statement of fact upon which the indictment was based and by the grand jury ordered to be drafted. Nash v. State, 73 Ark. 399; sections 2207-8-9-2224, 2226, Kirby’s Digest; State v. Skinner, 34 Kan. 256.

Neither was error committed in overruling the motion to ,quash the indictment, because there were 166 other indictments pending against appellant because of the same failure and refusal to construct the spur in accordance with the direction and requirement of said order of the Railroad Commission. The statute expressly makes each day’s violation of such order by the Railroad Company, failing and refusing to comply with it, a separate offense and punishable as such, and these indictments,, although they were each in fact a charge o.f an offense for a like' violation of the same order, each was for a different day, and was for a separate offense under said statute.

The penalties provided by this statute were intended to compel a compliance with, and obedience to, the reasonable orders, regulations, decrees and mandates of the Railroad Commission duly made after notice and a hearing, and they are not burdensome and excessive nor greater in any way than reasonably necessary to effect such purpose; and the enforcement of the act does not deny appellant the equal protection of the law or violate its rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Finding no error in the judgment, it is affirmed.