Atlantic Coast Line Railroad v. State , 135 Ga. 545 ( 1910 )

Holden, J.

1. The act referred to in the questions propounded by the Court of Appeals, known as the “headlight law,” was duly deposited in the office of the secretary of State as an enrolled act of the General Assembly, after having been duly signed by the president of the Senate and the speaker of the House of Representatives, and approved by the Governor. The provision of the constitution referred to in the 1st question propounded is as follows: “No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each house of the General Assembly, and it shall, in every instance, so appear on the journal.” Civil Code, § 5777. An act with the status above named can not be attacked as being invalid, under the constitutional provision above quoted, by showing that the journal of the Senate affirmatively shows that it did not receive on its passage the vote of a majority of all of the members elected to that body. When an enrolled act is signed by the presiding officers of both houses, approved by the Governor, and deposited in the office of the secretary of State, it will be conclusively presumed that the measure was properly put to a vote in both houses, and that it received a constitutional majority; and the court will not upset the act because the journals of the houses happen to show that it did not receive a majority of the votes of either or both branches of the legislature. 36 Cyc. 971 (G. b). The presiding officer of each branch of the General Assembly, and the Governor, are sworn officers of the State, and it is to be presumed that an enrolled act would not have been signed by these officials and thereby authenticated as being a valid law unless the act on its pássage had received the number of votes which the constitution requires in order to enact it. It will be deemed more likely that the subordinate officers of the General Assembly, in the performance of clerical duties, should have made a mistake in recording on the journals the proceedings had by the respective legislative bodies, than that the sworn presiding officers of these bodies should have signed a duly enrolled act as having been lawfully enacted when it did not in fact receive the number of votes required by the constitution in order to insure its passage. In the case of DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), it was held: “If an enrolled act of the legislature was duly signed by the president of the Senate and the speaker of the House and approved by the Governor and deposited in the office of the secretary of State, it was not competent to attack its validity on the ground that the legislative journals showed that the bill originated in the House, was there passed by a constitutional majority, and transmitted to the Senate, where it was amended and passed by a constitutional majority, and then transmitted to the House, where the Senate amendment was concurred in, but failed to show that this was done by a constitutional majority.” See also Whitley v. State, 134 Ga. 758 (68 S. E. 716).

If an act is not invalid under the provisions of the constitution above quoted when the legislative journals fail to show that it received a constitutional majority, it would not be invalid when the journals affirmatively show that it did not receive such majority. If it were permissive to look to the legislative journals to ascertain what occurred with respect to the passage of the act, after it had been duly enrolled, signed, approved, and deposited with the secretary of State as an existing law, an affirmative showing on the journal that a measure did not receive the requisite constitutional majority would be no more fatal to the validity of the act than a failure of the journal to show that it did receive- such majority, where the attack is based on a constitutional provision that no bill shall become a law unless it shall receive a majority of the votes of all the members elected to each house of the General Assembly, “and it shall, in every instance, so appear on the journal.”

The 1st question propounded by the Court of Appeals must be answered in the affirmative. In answering this question, having ruled that an enrolled act duly signed by the presiding officers of both houses, approved by the Governor, and deposited with the secretary of State is conclusively presumed to be a valid law so far as its enactment is concerned, the special plea referred to in the 7th question was subject to be stricken on the general demurrer thereto, and the certified copy of the substitute referred to in the 7th question was not admissible in evidence “for the purpose of supplementing, varying, or explaining the entries in the journal of the Senate.” This ruling makes it unnecessary to determine whether or not the journal of the Senate shows that the act in question was, or was not, in fact passed in conformity to the above quoted provision of the constitution.

2. The full text of the title and the body of the act referred to in the questions propounded to us is as follows:

“An act to require all railway companies in the State to equip and maintain each and every locomotive used with sufficient electric headlight, to prescribe a punishment for the failure to so equip, and for other purposes.

“Section 1. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that all railroad, companies are hereby required to equip and maintain each and every locomotive used by such company to run on its main line after dark with a good and sufficient headlight which shall consume not less than three hundred watts at the arc, and with a reflector not less than twenty-three inches in diameter, and to keep the same in good condition. The word main line as used herein means all portions of the railway line not used solely as yards, spurs, and sidetracks.

“ Sec. 2. Be it further enacted, that any railroad company violating this act in any respect shall be liable to indictment as for a misdemeanor in any county in which the locomotive not so equipped and maintained may run, and on conviction shall be punished by fine as prescribed in section 1039 of the Code of 1895.

“Sec. 3. Be it further enacted, that this act shall go into effect July 1, 1909.

“See. 4. Provided, this act shall npt apply to tramroads, mill-roads, and roads engaged principally in lumber or logging transportation in connection with mills.

“Sec. 5. Be it.further enacted, that all laws and parts of laws in conflict with this act be and the same are hereby repealed.”

The act requires “all railroad companies” to equip every locomotive used by “such company to run on its main line” after dark with a light of the kind named, and provides that “any railroad company” violating the act shall be liable to indictment and to be punished by fine as prescribed in the Penal Code, § 1039. Does the term “railroad company” include a natural persoh, so that the latter would be subject to indictment if such natural person owned and operated a railroad and failed to comply with the provisions of the act? In construing the term “railroad company,” we should look to all the provisions of the act and give proper consideration to the object intended to be accomplished by the act. Section 4 of the act provides: “Provided, this act shall not apply to tram-roads, mill-roads, and roads engaged principally in lumber or logging transportation in connection with mills.” It should be observed that in making this exception the act does not say that the owner or operator of the roads designated should be excepted, but simply provides that “this act” shall not apply to such “roads,” indicating that the purpose of the act was to make the requirement in reference to the use of the named headlights on all other railroads, regardless of whether owned by a corporation or natural persons. The evident purpose was to except certain roads, but not to make any exception in favor of any particular owners of other roads. The object of the act was to require certain headlights on all railroads except those of a named class, and the term “railroad company” was intended to include natural persons as well as corr porations. The word “company” does not necessarily mean a corporation. It may mean a firm or partnership. 8 Cyc. 389. If it includes a firm or jjartnership of two or more individuals, why should it not include one individual ? Penal Code, § 1, par. 4, provides: “The singular or plural number shall each include the other, unless expressly excluded.” Penal laws should be construed strictly, but they should not be so construed as to defeat the obvious intention of the General Assembly. In construing an act, whether of a civil or penal nature, the intention of the General Assembly should be sought for, keeping in view the evil and the remedy. The evil against which protection is sought is the operation of engines without the headlight required by the act. ■ The purpose of the law was to require named headlights on engines on the main line of all railroads except those of a specified character, and it was not the intention to make this requirement of corporations and companies, and make no such requirement of an individual owning and operating a railroad. The Civil Code, § 2199, provides that the terms railroad “corporation” and “company,” used in the article in which such section appears, shall include in their meaning any individual or individuals owning and operating railroads. Much of the law of this State pertaining to the operation of railroads, including the right of condemnation of private property, what is familiarly known as the “blow-post” law, requirements as to the' furnishing of heat and light in railroad trains, are embraced in this article. We think the word “company” in the act in question was used in the sense referred to in the Civil Code, § 2199, as including “individuals.” In this connection, see State v. Stone, 118 Mo. 388 (24 S. W. 164, 25 L. R. A. 243, 40 Am. St. R. 388); Chicago &c. Co. v. Garrity, 115 Ill. 155 (3 N. E. 448); Lewis v. Northern Pac. Ry. Co., 36 Mont. 207 (92 Pac. 469); Singer Mfg. Co. v. Wright, 97 Ga. 114 (25 S. E. 249, 35 L. R. A. 497).

The act does not violate the equal-protection clauses of,the State and Federal constitutions because it provides: “Provided this act shall not apply to tramroads, mill-roads, and roads engaged principally in lumber or logging transportation in connection with mills.” The roads to which the act does not apply do not serve the public generally, but their work is mainly that connected with lumber mills. Their principal business is not the transportation of passengers and freight for the public, but involves work for private enterprises in a small territory. The danger of operating such roads without proper safety appliances is not so great as that attending the operation of ordinary railroads doing a general passenger and freight business for the public. These differences furnish a reasonable basis for requiring a headlight of a certain kind on engines on main lines on ordinary railroads, and not requiring such lights on engines on roads of the kind excepted. The latter form an entirely separate and distinct class of railroads from the former, and the act can not be said to make an arbitrary classification. N. Y. &c. R. Co. v. New York, 165 N. Y. 628 (17 Sup. Ct. 418, 41 L. ed. 853); Missouri &c. R. Co. v. State (Ark.), 121 S. W. 930; People v. N. Y. &c. R. Co., 55 Hun, 409, 608 (8 N. Y. Supp. 673); Chicago &c. Ry. Co. v. Railroad Commissioners (Ind.), 90 N. E. 1011.

Conceding, without deciding, that receivers of railroads are not within the provisions of the act, we do not think this fact would make the act void as a violation of the equal-protection clauses of the State and Federal constitutions. A receiver appointed by a court is one of its officers; and in the absence of any statute imposing a duty on a receiver of a railroad thus appointed, he must handle the property placed in his charge-in accordance with the instructions of the court appointing him. His possession and operation of the road are those of the court. Should the court, through its receiver, have possession of a railroad whose engines were not equipped with the required headlight, or purchase other engines, the presumption is that the court — a branch of the government co-ordinate with the General Assembly — would conform to the policy of the State as declared by the General Assembly, in the exercise of the police power, and equip the engines with such headlights as it had by law required of railroad companies. A railroad is never retained possession of and operated by the court longer than is necessary. 'The court does not permanently operate railroads; on the contrary, it only operates them for a short time and from necessity. If the act applies to a receiver, and if a receiver were appointed by the court for a railroad whose engines were not equipped with the required headlights, how could such receiver operate the engines without such lights without subjecting himself to numerous prosecutions and fines, should the court require him to operate the engines in violation of the penal laws of the State? If it were a railroad engaged in serving the public, the latter might suffer to a great extent if the road were not operated until all the engines were equipped with the required headlights. The act provided that it should not go into effect until a specified date, and thus time was given to railroad companies to equip their engines in accordance with its provisions. But after the act went into effect, if a receiver were appointed for a railroad whose engines were not thus equipped, no time is allowed-within which the receiver might comply with the act; and if the act applies to receivers, they would .become subject to criminal prosecutions the day they were appointed, if they operated engines without the prescribed equipment, in disregard of the act. The court would dispose of a railroad under receivership as soon as it was proper and practicable to do so. Those to whom the receiver delivered it, under a contract of purchase or otherwise, would be subject to numerous prosecutions under the act in question should they not equip the engines as required by that law, and the public might seriously suffer if the road should cease operations until its engines could be thus equipped. It is to be presumed that the court would not allow the road to be disposed of before its engines were equipped with headlights as required by the act. It is not to be presumed that it would dispose of the road to another when it was in such condition that the one acquiring it would violate the penal law of the State by immediately operating it. Receivers, and courts through receivers, do not construct or buy railroads, but their ultimate aim is to get rid of the ones of which they are in possession. Courts, through receivers, never operate railroads except from necessity; and when they do so operate them, it is only for a limited time. If the court takes possession of a road whose engines are not equipped as required by the “headlight law,” the court should not require its receiver to cease operating the road until the engines should be so equipped, thereby causing inconvenience and suffering to the public. In such cases the court should yield_ to the necessity of the situation as it existed when thrust upon it, by immediately operating the road, where possible, to subserve the public, convenience and requirements, and impose upon the receiver the duty of equipping engines as rapidly as possible in accordance with the policy of the law; so as to put the road in a condition where its operation ■ can be continued by those who take charge of it when disposed of by the court, without involving a violation of law on their part. We think there was a reasonable basis for a requirement that railroad companies should equip their engines operated on main lines as prescribed in the act, without making such requirement applicable to receivers of railroads. The answer to the 3rd and 5th questions must be in the negative.

3. All property is held subject to the police power of the State. The determination by the railroad company that the reflector and the light in use by it constitute an adequate light can not be conclusive on the General Assembly, which has the authority to exercise the police power of the State,' and in the interest of public safety to declare Such light inadequate. It is a matter of great importance for the protection of persons and property in the train, the persons on the locomotive, persons and property on the track, and persons and property on other trains with which a collision may be had, that there should be an adequate headlight on such locomotive. The General Assembly, in the exercise of the police power of the State, has the right to require adequate headlights on such engines; and if in conformity to the requirements of such law the railroad company is compelled to do away with the headlights already in use by it and substitute others therefor at its own expense, there is no taking of property without just compensation, in violation of the due-process clauses of the State and Federal constitutions. In such a case, there is no taking of property. The due-process clauses are not intended to limit the right of the State to properly exercise the police power in the enhancement of the public safety. The fact that the railroad company will, in order to equip its engines with the required headlights, be forced to do away with the reflectors and lights which it has in use is only incidental to a compliance with the police regulation and requirement made in the act, 'which is a valid and reasonable requirement. Damages can not be recovered by one because he incurs expense in obeying a police regulation enacted for the common welfare and safety of the public. See, in this connection, State v. St. Paul etc. Ry. Co., 98 Minn. 380 (108 N. W. 261, 120 Am. St. R. 581, 8 Am. & Eng. Ann. Cas. 1047); 1 Thomp. Corp. § 449; C., B. & Q. R. Co. v, Chicago, 166 U. S. 226 (17 Sup. Ct. 581, 41 L. ed. 979); C., B. & Q. Ry. v. Drainage Commis sioners, 200 U. S. 561 (26 Sup. Ct. 341, 50 L. ed. 596), and authorities cited in the opinion; Bacon v. Boston & M. R. (Vt.), 76 Atl. 128 (19). The act provides that every engine used on a main line after dark shall be equipped “with a good and sufficient headlight, which shall consume not less than 300 watts at the arc, and with a reflector not less than 23 inches in diameter.” It is not required that the light shall consume no more than the specified number of watts at the arc, nor that the reflector shall be exactly a particular size. A light consuming more than 300 watts at the are, and a reflector greater than 23 inches in diameter would be within the provisions of the act. The act requires “a good and sufficient headlight.” In the exercise of the police power the General Assembly had the right to prescribe that such light should be an electric light. 'The fact that the railway company is prevented from providing a light produced in some wajr other than by electric current is no violation of the due-process clause “by depriving it of its own right to make contracts and manage its own business.” In McGehee on Due Process of Law, 345, it is said: “Although freedom and the liberty to contract are fundamental rights within the guaranties of the constitution, they may be limited by the State in the exercise of the police power in the interest of the public safety, health, or morals, or, under certain conditions, in the exercise of the legislative power merely.” Also see Freund on Police Power, § 499. It is to be presumed that the General Assembly satisfied itself that the light proper to be used in order to insure the public safety was the one required, and in the exercise of the police power it had the right to require the use of such light. The fact that in obeying the law the railroad company is deprived of the right to use a light other than an electric headlight, or to use an electric light below a specified intensity, or a reflector of less than a designated size, does not violate the due-process clause of the State and Federal constitutions. ’ The legislature has the power to require such a headlight as is best pro-motive of the public safety, if the requirement is a reasonable one. An act requiring in general terms a light adequate for such purposes would be very indefinite and would give rise to frequent disputes as to whether or not the law had been observed. A jury in one instance might declare the light in use' inadequate, while another jury might declare it adequate, a"nd the user of the light might be uncertain as to whether or not he was complying with the law. In Atchison &c. Railroad Co. v. Matthews, 174 U. S. 96, 102 (19 Sup. Ct. 609, 612, 43 L. ed. 909), the Supreme Court of the-United States said: “If, in order to accomplish a given beneficial result — a result which depends on the action of a corporation — the legislature has the power to prescribe a specific duty and punish a failure to comply therewith by a penalty, either double damages or attorney’s fees, has it not -equal power to prescribe the same penalty for failing to accomplish the same result, leaving to the corporation the selection of the means it deems best therefor? Does the power of the legislature depend on the method it pursues to accomplish the result? As individuals we may think it better that the legislature prescribe the specific duties which the corporations must perform; we may think it better that the legislation should be like that of Missouri, prescribing an absolute liability, instead of that of Nansas, making the fact of fire prima facie evidence of negligence; but clearly as a court we may not interpose our personal views as to-the wisdom or policy of either form of legislation. It can not be too often said that forms are matters of legislative consideration; results and power only are to be considered by the courts.” In Freund on Police Power, § 34, it is said: “Assuming that several measures are equally efficient to avert danger to health or safety, it would still seem to be within the legislative power to select one method and require its adoption; for it is easier to enforce uniform police regulations than a great variety of measures, the efficiency of each of which would be a question of fact in each particular case.” Requiring a light by virtue of which those on an engine can see a designated distance ahead is practically done by requiring that the light shall be of a certain intensity and with a reflector of not less than a given size. The act declares that the light which is considered proper for the public safety must be of the kind required. The General Assembly is presumed to have acted after due deliberation ánd investigation, and after finding that the light proper for the public safety must be of the kind prescribed. The courts can not say that an electric light, and one of the intensity provided, with a reflector of the size named, is not one necessary for the public safety; nor can we say that the requirement that such a light shall be used on locomotives is an unreasonable requirement, although the act in preventing the use of lights other than an electric light affects the right of the company to contract for any other kind of light. The act is not void for the alleged reason that the government is undertaking to manage the compan)^ business and interfere with its right to contract. In 1 Thompson on Corporations (2d ed.), § 425, it is said: “The legislature may exercise its discretion within wide limits in its'regulations of corporations under this police power. If the statute appears to be within the apparent scope of such power, it is not for the courts to inquire into its wisdom and policy, or to substitute their discretion or judgment for that 'of the legislature. . . The correct doctrine undoubtedly is that it is for the legislature to determine the exigency, or the occasion, for the exercise of this power; but it is clearly within the jurisdiction of the courts to determine what are the subjects upon which this power is to be exercised, and the reasonableness of that exercise.” And in section 426, the same author says: “The position of the courts in passing on the validity of statutes enacted by the legislature in the exercise of this police power is regarded by them as both delicate and embarrassing. Courts should be, and are, slow to pronounce judgment upon what is purely legislative discretion. It is sufficient to stay the hands of the courts if the exercise of this power by the legislatures is reasonable. And in judging of its reasonableness courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. The courts will assume that this power will always be exercised by the legislature with the highest discretion; and the rule is that where the legislative expression is clear and unequivocal, a clear case should be made to authorize an interference by the courts upon the ground of unreasonableness.. The courts should and do proceed with the utmost caution, and hold such regulations void only when they clearly pass beyond the limits of the police power and infringe upon rights secured by the Federal law. This power rests solely within the legislative discretion, inside constitutional limits. It is for the legislature to determine when the public safety or welfare requires the ex* ercise of this power, and the courts can interfere only when such exercise conflicts with the constitution; with the necessity, wisdom, or policy of such legislation they have nothing to do.” The need for the exercise of the police power upon any given subject is a matter in the discretion of the legislature. The exercise of this power must be reasonable, and the question as to whether or not it is reasonable is one for the courts. We can not say that the exercise of the power in this instance was unreasonable. In Holden v. Hardy, 169 U. S. 366, 397 (18 Sup. Ct. 383, 390, 42 L. ed. 780), the following language of the Supreme Court of Htah was approved: “Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety, or comfort of the people, or to secure good order or promote the general welfare, we must resolve them in favor of the right of that department of government.” The legislature has the right to prevent railroad companies from contracting for and using a light not proper to be used for the public safety; and if the light required is one proper for this purpose, the legislature has the right to require its use, notwithstanding this prevents the use of another kind of light, if the requirement of the act is reasonable, and we can not say that its requirements are unreasonable.

The act is not void on the ground that it absolutely and without exception makes the company guilty of a crime when it fails to equip .its locomotives with the required headlights and operates them on its main line without such headlights. It is contended that the act is void for the reason that in case of accident or other unforeseen cause, if the light which the company had provided in conformity with the requirements of the act were injured or destroyed, no provision is made allowing the company to operate its engine without the required headlight to a repair-shop, or to the place where another engine could be obtained, without violating the act and becoming liable to punishment thereunder. Every statute must be construed to have a reasonable intendment, and be construed in connection with other .statutes. While we will not undertake to detail instances in which the company would be guilty of no offense under the act in question while operating an engine without the required headlight, an act will not be eon-, strued so as to require the performance of an impossible act, if any other construction can be legitimately given it. See Southern Ry. Co. v. Atlanta Sand Co., 135 Ga. 36 (68 S. E. 807). The statutes requiring railroad companies to erect blow-posts 400. yards on either side of public crossings and to blow the whistle on approaching such crossings, to furnish light and water for.paásengers, and other statutes imposing duties on railroad companies, and providing a penalty for violation thereof, contain no emergency, clauses; and there are many statutes making the commission of specific acts crimes without providing that there are circumstances under which a technical violation of the letter of the act would constitute no crime; but we are not prepared to hold that such acts arc void for this reason. As to whether in any particular instance a person charged with violating a criminal statute has a good defense thereto must depend upon the particular facts in each case. We do not think that the act is violative of the due-process Clauses of the State and Federal constitutions; and our answer to the 2d, 4th, and 9th questions must be in the negative.

4. The commerce clause of the Federal constitution is a limitation on, hut is. not a destruction of, the police power'of the States. The police power has never been surrendered by the States. A railroad company driving an engine engaged in interstate commerce through the territory of this State, with a headlight which endangers the lives and property of the people, can not claim that under the commerce clause of the Federal constitution it is not subject to reasonable police regulations of this State requiring an adequate headlight for the protection of the lives and property of the people. The act in question does not restrict or prohibit interstate commerce. It is an exercise of the police power, designed to protect persons and property in this State, and does not prohibit or regulate interstate commerce. The statute is not directed against interstate commerce; so far as the act affects interstate commerce, it is in aid thereof. It protects the persons and property on trains brought from another State into this State, as it also does persons and property not so brought; and it is the duty of the State to protect the former as well as the latter. One of the highest duties of government is the protection of the lives and property of the people. To the exercise of the police power all rights of natural persons and corporations are subject. If an engine doing an interstate business should come into this State from another State, or go out of this State into another State, when such other State had a law requiring a headlight on the engine other than an electric light and a reflector of a size different from that required by the act in question, the mere fact that this would necessitate changes of lights and reflectors, thereby causing expense, loss of time, and inconvenience, would not for this reason make the requirement of the act an unlawful interference with interstate commerce. People v. N. Y. &c. R. Co., 55 Hun, 409, 608 (8 N. Y. S. 673) ; N Y. &c. R. Co. v. New York, 165 U. S. 628 (17 Sup. Ct. 418, 41 L. ed. 853). Many acts requiring trains doing an interstate business to stop at stations and public crossings, and to run at not exceeding a specified rate of speed, have been held not to be violative of the commerce clause. Such acts, however, necessarily to some extent prevent such trains from making the time they would make but for such stops and slowing up of speed, and also of neeessitj'- involve some expense. A violation of the commerce clause would not exist merely because some loss of time, expense, and inconvenience was caused the railroad company in making the necessary changes in its headlight equipment in order to meet the requirements of different States, nor because such changes involved some additional expense. Such expenses and loss of time would impose no substantial burden on interstate commerce. The act is. in no sense a regulation of interstate commerce. If every law enacted in the exercise of the police power with a design to enhance the public safety be declared void because it to some extent affects interstate commerce, many of the most salutary police regulations of the States must fall. In C. & P. T. Co. v. Manning, 186 U. S. 238 (22 Sup. Ct. 881, 46 L. ed. 1144), it was declared: “Courts always presume that a legislature in enacting statutes acts advisedly and with full knowledge of the, situation, and they must accept its action as that of a body having full power to act, and only acting when it has acquired sufficient information to justify its action.” Every presumption is to be indulged in favor of the constitutionality of an act. There is no legislation by Congress making any requirement with, respect to the kind of headlight to be used on engines engaged in interstate business. The act in question is not violative of the commerce clause of the Federal constitution; and our answer to the 6th and 8th questions is in the negative.

All the Justices concur.