Parks v. Nashville, Chattanooga & St. Louis Railway , 81 Tenn. 1 ( 1884 )

Coopkk, J.,

delivered the opinion of the court.

Action for the recovery of penalties under a statute. The circuit juclge sustained the demurrer to the declaration. The Referees report that the judgment should be reversed upon the ground that the plaintiff is entitled to recover in lull as claimed. The exceptions ■open the case.

The act of 1865, ch. 15, sec. 2 (Rev. Code, sec. 4927 b), provides as follows: “It shall be the duty •of each conductor or oth§r employee on any railroad in this State to announce in loud, distinct words, for •each passenger car, the stopping place, station, depot' or town at which each car or passenger train stops, or shall be detained for any purpose, and also the time .such car, or passenger train will stop or be detained.”

The next section is: “Every railroad company shall •cause such passenger car to be well supplied with pure and wholesome water, and in cool weather have each passenger car provided with comfortable fires, and at night furnished with sufficient light for the use, comfort and convenience of the passengers.”

The next section is: “Upon failure of any railroad company, during any trip of the passenger cars, fo comply strictly with any of the provisions of the pre•ceding sections of this act, then such railroad company .shall forfeit and pay the sum of one hundred dollars, recoverable before any court having jurisdiction thereof, ■one-half to be paid »to the person suing, and the other half to go .to the common school fund of the State.”

The action was brought by George N. Parks against the Nashville, Chattanooga & St. Louis Railway to recover penalties alleged to have been incurred under the foregoing act, for the failure of the conductor or other employee of the company to announce, on its passenger trains, at the Paducah junction, a stopping place of such trains, the station and the time the train would stop or be detained. The declaration contained 240 counts, each for a separate penalty .for a distinct failure of duty. The defendant demurred to the declaration, assigning as causes of demurrer, first, that the penalty sued for was unconstitutional, and, secondly, that the individual conductor or employee, upon whom 'the duty of performance was imposed by law, could alone be held responsible for the penalty, a corporation aggregate being incapable of incurring the penalty, •or being sued therefor.

Although the first section of the statute quoted ■above imposes the duty specified by it upon the “eon-ductor or other employee/’ while the next section imposes the duties specified therein upon the railroad •company, yet the intention of the Legislature was to require certain acts to be done for the comfort and •accommodation of passengers on railroad trains, and to secure their performance by a penalty for the failure, to be sued for by any person aggrieved certainly, and, perhaps, by a common informer. The regulations prescribed are within the police power of the Legislature, and the mode adopted for their enforcement is one well known to the common law, and frequently occurring in our statutes. It is true, the penalty is usually imposed upon the person who is required to perform the duty, and whose delinquency gives the right of action. Corporations aggregate can only act through agents, and can only be subjected to the police power of the State in this mode by being made responsible for the default of their servants. Perhaps, there can. be no reasonable doubt of the liability of a ■ corporation or superior in such cases, where the legislation is remedial, not punitive, although the subject is left in much obscurity by the authorities. The case before us may be decided upon well recognized principles.

All the authorities agree that statutes like the one under consideration must be construed strictly. They further agree that a master or principal may be made-liable for a reasonable penalty for the act or omission of an employee or agent in the line of his duty, where the penalty is remedial, not punitive. The inclination of the courts is, therefore, to construe such statutes as remedial, that is as. intended to redress an actual injury with a view to prevent its recurrence, and not as punitive, that is, as intended to punish whether the injury has accrued or not. It is in the latter class of cases that the gravest doubts have been entertained whether the principal could be made liable at all to a penalty for the act or omission of the agent or employee: Dickinson v. Fletcher, L. R., 9 C. P., 1; McCown v. New York Central Railroad Company, 50 N. Y., 176.

The intent of the Legislature in the statute before us was to secure certain benefits to passengers on the railroad trains. It was, of course, never intended that a penalty should be incurred if in fact there were no passengers on the train, or in a car of the train in which there was a default. And a failure to call a station at which no passenger intended to get off, or did in fact get off could do no harm, and would be at most only a technical breach of the law. If the statute be construed literally, or as punitive, 'there would be a penalty even in such cases. Penalties would also be incurred by acts of inadvertence or •omissions of negligence although no person was aggrieved thereby. And if each default gave a right •of action, and might be sued upon at any time, the purpose of the Legislature would be lost sight of, and the act be perverted and made punitive instead of remedial. ■ The common law forbids the infliction of penalties or punishment more than once on the same offender, although guilty of several distinct offenses. By that law, and it was so construed in this State, a conviction, judgment and execution for a felony not capital were a bar to all other indictments for felonies not capital • committed previously: Crenshaw v. State, M. & Y., 123; 1 Bish. Cr. Law, sec. 1070. And the courts have been always opposed to the enforcement of penalties except to the extent necessary to secure the manifest object of their infliction. For this reason, as we have seen, they are agreed in construing penal statutes strictly.

The act before us gives the forfeiture upon the failure of any railroad company to comply with its provisions “ during any trip of the passenger cars.” Under the rules of construction adopted by the courts, there would be only one penalty for each trip. The statute does not in so many words give the right of' action to ' a common informer, and the argument is strongly persuasive, especially in view of the amount of the penalty, that the right of action is given only to a passenger aggrieved by the default. But if it be conceded that a qui tam action might be brought by any one, the statute does not say that there shall', be a penalty for “ each and every offense.” In the-absence of these words, it seems to be settled that only one recovery can be had for acts or omissions,, in violation of the statute, prior to the commencement of the suit: 5 Wait’s Act. and Def., 164. The reason is, that it is the action which will bring the default to the attention of the corporation or party, and secure a compliance with the law. And it is the performance of the duties imposed which enures to the-benefit of the passengers, on whose behalf the act was. passed. A different construction would contravene the-legislative intent, leave an opening for the perversion of the act, and make a statute punitive which was intended to be remedial.

Accordingly, under a statute giving a penalty against any person employing another to act as a pilot who has no license, it was held that there could be only one recovery against the defendant, although he had employed an unlicensed pilot for. several ships: Sturgis v. Spofford, 45 N. Y., 446. The same ruling was made, where a penalty of $50 was given against any railroad company for taking more than a fixed rate of fare: Fisher v. New York Central Railroad Company, 46 N. Y., 544. “The omission from the statute of the words ‘for each and every offense/” say the court in that ease, “shows clearly that the Legislature did not intend to open the door to a practice adopted in a case originating in another part of the State, now under advisement in this court, of opening a book account of penalties accrued, and delaying suit for a year, when such penalties amounted to between twenty and thirty thousand dollars. A construction permitting this would defeat the intention of the Legislature, which was to suppress the extortion by prompt prosecution, by enabling parties to forbear suing until the aggregate penalties amounted to a large sum, and induce others to do as one of the plaintiffs in one of the cases now in judgment was honest enough to testify he did; that was, to abandon other business, and spend his time for a considerable period in riding back and forth from Tonawonda to Buffalo for the purpose of earning penalties.”

The plaintiff in this suit has brought before us precisely the case presented to the court of Errors and Appeals of New York under a similar statute. The decision of that eminent tribunal commends itself to our judgment and sense of justice. To allow a person to open a book account of penalties at an insignificant way station, and run up a charge of $24,000 for the failure of the conductor to announce the station, or the length of stay, of which no passenger has complained, would shopk the conscience, pervert the intention of the Legislature, and turn a remedial into a highly punitive statute. It would be a literal construction of the words of the statute, which would recall the similar construction bv a somewhat famous judicial tribunal of the middle ages of a law making it a capital offense to shed blood in the street, whereby an unfortunate leech was condemned to the gallows for bleeding his apoplectic patieut on the side walk where he had dropped down. If the Legislature bad, in the act before us, in so many words authorized what the plaintiff has done, without any notice to the company, it would be difficult to sustain the constitutionality of the statute. For the effect would be the imposition of an excessive fine: Const., Art. 1, sec. 16. But the Legislature had no such intention, and we shall not press the language used so as to do indirectly what could not, perhaps, -have been done directly. The statute, both upon reason and authority, admits of a different construction. We are of opinion, therefore, that only one penalty can be recovered up to the bringing of the suit.

The causes of demurrer assigned, strictly speaking, do not cover the grounds of our decision. But the statute which requires that demurrers shall state the objection relied on applies equally to cases at law and in equity: Code, sec. 2934; Kirkman v. Snodgrass, 3 Head, 370. And we have uniformly held that when a bill contains no equity, it may be dismissed although the causes of demurrer assigned may not cover the real defects: Lane v. Farmer, 11 Lea, 568, 577. We have also held that although the demurrer be insufficient because bad in part, yet upon an appeal from the ruling of the court on the demurrer the court would determine a question involved in the suit which would greatly narrow the contest, and . tend to the speedier termination of the litigation: Riddle v. Motley, 1 Lea, 468. These rules equally apply to an action at law, the statutes regulating the demurrer and the appeal being the same. .

The exceptions to the report of the Referees will be sustained, the judgment of the court below reversed, and the cause remanded for a repleader with leave to the defendant to move to strike out all the counts of the declaration except one to be selected by the plaintiff, and with directions to the circuit court to proceed in accordance with, this opinion by striking out the other counts. The defendant will pay the costs of this court. '

TujrNEY, J.,

delivered the following opinion:

This action involves a construction of three consecutive sections of the act of 1865-6, ch. 15, brought into the Code by section 4927 a, b, c, as follows :

“It shall be the duty of each conductor or other employee on any railroad in this State to announce, in loud, distinct words, for each passenger car, the stopping place, station or depot, or town at which each passenger train stops, or shall be detained for any purpose, and also the time such car or passenger train will stop or be detained.”

“Every railroad company shall cause such passenger car to be well supplied with pure and wholesome water, and in cool weather hare each passenger car provided with comfortable fires, and at night furnished with sufficient light for the use, comfort and convenience of the passengers.

“Upon the failure of the railroad company, during any trip of the passenger cars, to comply strictly with any of the provisions of the two preceding sections of this Act, then such railroad company shall forfeit and pay the sum of one hundred dollars, recoverable before any court having jurisdiction thereof, one-half to be paid to the person suing, the other half to the common school fund of the State.”

To correctly get at and understand the object of' the Legislature, it is necessary to keep in mind the wording of this statute as connected provisions throughout. It applies alone to “passenger trains.” It contemplates the convenience and comfort of passengers only. The object of calling the names of depots, stations, etc., can reasonably have the two objects, one to keep the passenger advised of the fact that his destination has been reached, the other to inform strangers of the points on the roads, with perhaps the additional purpose of advising passengers whether they will have time to leave the cars and return for a continuation of the trip. Persons not passengers, and not desiring to be so, can have no interest in the performance of or the failure to perform the duties defined. Taking the' entire, law, and construing it as a whole, I entertain no doubt of the correctness of this construction. Would any one suppose the Legislature had any intention to provide for the comfort, thirst or warmth of one who might be loitering about depots,, or that it designed to furnish such an one lights at night from the lamps of the train ?

The term “ the person,” employed in the third section, relates to the passengers, and means the passenger suing. While I think the Legislature possessed the power under the Constitution to pass the law, I also think that it must be so construed as to be confined to its effects upon passengers, or those who propose to be such in good faith, and for the purpose of going from point to point along the line of the particular road as travelers, and not to include such as travel solely for the purpose of speculation or profit to be derived from eavesdropping or playing the parts-of spies or detectives; and that therefore the party suing must show that he was or intended to be such passenger, and was not traveling for the disreputable purposes indicated, and did not enter the train with a view to them.

The declai-ation should aver that the person suing was a passenger, or purposed to be one at the time and place of omission.

Cooke, Sp. J., concurs in this opinion.