Chicago, Burlington, & Quincy Railroad Company v. Cram

The state of Nebraska enacted a law requiring railroads conveying live stock to convey the same at a rate of speed so that the time consumed in a journey from the initial point of receiving the stock to the point of feeding or destination should not exceed one hour for each 18 miles travel, including the time of stops at stations or other points. It is provided that where the initial point is not a division station, and on all branch lines not exceeding 125 miles in length, the rate of speed shall be such that not more than one hour shall be consumed in traversing each 12 miles of the distance, including stops at stations or other points, from the initial point to the first division station or over said branches. The time consumed in picking up and setting out, loading or unloading stock at stations, shall not be included in the time required.

It is further provided that upon branch lines not exceeding 125 miles in length, live stock of less than six cars in one consignment, the railroad company may designate three days in each week as stock-shipping days, and publish and make public the days so designated. After notice of ten days of the days selected and designated, the schedule provided in the act shall only apply to such stock-shipping days. It is provided that a carrier 'violating any provisions of the act shall pay to the owner of such live stock the sum of $10 for each hour for each car it extends or prolongs the time of transportation beyond the period here limited as liquidated damages, to be recovered in an ordinary action, as other debts are recovered.' The act was approved March 30, 1905. Mebraska Session Laws 1905, chaps. 107, 506.

Defendant in error brought an action against plaintiff in error in the district court of Garfield county, for the sum of $1,770, being the aggregate of twenty-five violations of the act for stock delivered to the railroad July 14, 1905, and subsequent dates, for transportation in full carloads, each violation being made a cause of action, the amount of each varying with the time of prolongation of the transportation of the stock.

There was alleged in the cause of action no ground of recovery other than the statute and the delay in the transportation of the stock. In other words, the time consumed in the transportation of the stock, such time being given and alleged to be 'longer than permitted by the statutes of Nebraska, to the damage of the plaintiff. . . as provided for by statutes.'

A demurrer was filed to the petition, charging that the statute violated the due process and equality clauses of the 14[[|[[th Amendment, Burlington, & Quincy Railroad Company v. Cram|th Amendment]]]]]] of the Constitution of the United States; that the plaintiff (defendant in error) sought 'to recover property or money from the defendant without its consent and for the private use of the plaintiff, without compensation, and which recovery, if had, would amount to confiscation of the property of the defendant, in violation of the provisions of article 14 of the Amendments of the Constitution of the United States; that the recovery, if permitted, would be the recovery of a penalty under an act of the legislature which is penal in its character, and was not such a right as the plaintiff could have or enforce, in violation of § 5, art. 8, of the Constitution of Nebraska.'

The demurrer was overruled and the defendant answered, alleging the following: The shipments were duly and properly made without unnecessary delay, and the consignments carried were each and all duly delivered to the consignee in accordance with the contracts made for the shipment of the stock, and without any fault or negligence on the part of the defendant company.

A written contract for each shipment was duly made and entered into by plaintiff and defendant, by which it was contracted and agreed that the shipments would not be carried within any specified time, nor to arrive at destination for any particular market.

The damages sought to be recovered are in reality a penalty or forfeiture, and that a recovery by plaintiff would be in violation of the due process and equal protection clauses of the 14[[|[[th Amendment, Burlington, & Quincy Railroad Company v. Cram|th Amendment]]]]]] of the Constitution of the United States.

The plaintiff's cause of action is for the recovery of a penalty sought to be imposed upon the defendant contrary to the provisions of article 8, § 5, of the Constitution of Nebraska, and plaintiff had no right or authority under the law to prosecute the action, or to recovery therein.

An amended answer was filed which repeated the above, and alleged that the stock was accepted and carried according to the laws, rules, and usages that regulated and governed common carriers, and in accordance with the schedules for the movement of trains, as established and in force at the times the shipments were made. The line of the defendant's railroad was alleged, the manner of conducting its business, the times of receiving the various shipments, their arrival at particular stations and at destination.

A replication was filed to the answer, denying its allegations.

The case was tried by the court without a jury, and judgment was rendered for plaintiff in the sum of $1,640 and costs.

The supreme court decided that the judgment was excessive in the amounts of $250 and $170, and those sums, in accordance with the order of the court, were remitted by the plaintiff, and with those reductions the judgment was affirmed. 84 Neb. 607, 26 L.R.A.(N.S.) 1022, 122 N. W. 31, 85 Neb. 586, 26 L.R.A.(N.S.) 1028, 123 N. W. 1045, 19 Ann. Gas. 170.

Messrs. Halleck F. Rose, Jhn F. Stout, and James E. Kelby for plaintiff in error.

[Argument of Counsel from pages 73-77 intentionally omitted]

Messrs. E. J. Clements and S. H. Cowan for defendant in error.

Statement by Mr. Justice McKenna:

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[Argument of Counsel from pages 77-81 intentionally omitted]

Mr. Justice McKenna delivered the opinion of the court, after stating the case as above: