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Curry, Sullivan county, Indiana, and that the company, between July 1, 1911, and August 20, 1911, refused and neglected to cause all noxious weeds (following the words of the statute) growing on lands occupied by it in the township and county designated above to be cut down and destroyed, and especially on its lands running through the lands of defendant in error. He also alleged that he felt himself aggrieved thereby and had been damaged in the sum of $25, and should receive the statutory penalty of $25.

The company demurred to the complaint for insufficiency to constitute a cause of action, filing therewith a memorandum alleging, among other things, that the act was unconstitutional.

The demurrer was overruled and the company filed a general denial of the allegations of the complaint.

After hearing a penalty was imposed upon the company in the sum of $25. It filed a motion in arrest of judgment in which it repeated that the law was unconstitutional. The motion was overruled and judgment entered against the company. It was affirmed by the supreme court. In that court the ground was specifically urged that the statute offended the equal protection and due process clauses of the 14th Amendment to the Constitution of the United States. The court considered both contentions and rejected both, and to review its decision this writ of error is prosecuted.

tions between that statute and the Indiana statute are pointed out. These distinctions are: (1) The Texas statute gave the penalty to contiguous landowners; the Indiana statute gives it to "any person feeling himself aggrieved." (2) The Texas statute required the contiguous landowner to be free from the same neglect; the Indiana statute does not impose this limitation. (3) The Texas statute is limited to the railroad's rights of way; the Indiana statute applies to all lands occupied by a railroad "in any city, village or township."

How discriminating and arbitrary these distinctions make the Indiana statute as compared with the Texas statute, and remove the latter from authority, is variously illustrated by plaintiff in error.

The supreme court of Indiana is not specific as to these contentions. On the authority of Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 937, and Western U. Teleg. Co. v. Ferguson, 157 Ind. 37, 60 N. E. 679, the court decided that it was neither necessary to aver in the complaint nor prove that the person bringing the action had suffered actual damages. The court said: "The penalty imposed is for violation of a duty required of appellant [the railway company] and it is not in a position to complain that the penalty when collected shall be paid to the complaining party, and this is not available in defense of an action for the recovery of the penalty prescribed." [182 Ind. 144, 105 N. E. 49.]

In Pennsylvania Co. v. State the penalty was imposed for failure of railroads to provide blackboards in their passenger stations showing the time of arrival and departure of trains, the act providing that one half of the recovery should go to the prosecuting attorney. It was held that this was a method of compensating that officer and to encourage the actual enforcement of the law against its violators, and not intended to require him to become a party litigant.

As offending against the equal protection assured by the 14th Amendment the company complains that occupiers of land are separated into two classes-"(1) railway corporations, and (2) all others." This, it is insisted, is an unnatural and unjustifiable classification with respect to the obligation imposed of cutting down weeds growing on lands occupied, as there is no relation between the line of division of the classes and the subject matter. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. In the second case a statute was consid666, 17 Sup. Ct. Rep. 255, and Connolly v. ered that required telegrams to be transUnion Sewer Pipe Co. 184 U. S. 540, 46 mitted with impartiality and in the order L. ed. 679, 22 Sup. Ct. Rep. 431, are cited. of time in which they were received, and We need not pause to review them or the without discrimination as to rates. It was many cases decided since them, explaining provided that any person or company violatthe wide discretion a legislature has in the ing the act should be liable to “any party classification of the objects of legislation, aggrieved in a penalty of $100 for each for immediately repellent to plaintiff in er- offense, to be recovered in a civil action in ror's contention is Missouri, K. & T. R. Co. any court of competent jurisdiction." It v. May, 194 U. S. 267, 48 L. ed. 971, 24 was held that the "party aggrieved is the Sup. Ct. Rep. 638. In that case a statute person whose message the telegraph comof Texas imposed a penalty on railroad pany has refused to receive or failed to companies for permitting Johnson grass and transmit on the terms or in the manner Russian thistle to go to seed upon their prescribed by the statute," and that it was rights of way. A right of action for the not necessary for him to show that he had penalty was given to contiguous owners. sustained any actual damages; that he The act was sustained, but certain distinc-' might recover compensation for damages in

dependently of the statute, which furnished a cumulative remedy.

Both cases illustrate the principle that a penalty imposed by a statute may be given to an informer or prosecutor as a means of enforcing the statute, as a means of its public vindication, and necessarily there could be but one recovery in the designated territory. But we cannot say whom, under the statute under review in this case, the court would consider a "party aggrieved," or who could be considered as a "person feeling himself aggrieved," to use the language of the statute, whether a contiguous landowner, or other landowner, or whether

is asserted to have been beyond the jurisdiction of the judge to make may not, upon the failure of the judge to make a return to a rule to show cause why a writ of prohibition should not issue to prevent the respondents to the rule, and as such be percarrying out of such order, be treated as mitted to file a return.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. § 75; Dec. Dig. 26.]

[No. 25, Original.]

Submitted December 4, 1916. Decided December 18, 1916.

ETITION for leave to intervene and

any person could be aggrieved within the P make return to rule to show cause why

corpora

meaning of the statute if he himself was
guilty of the same neglect as the railroad
company. Nor can we say how the supreme
court would decide as to what was meant
by "lands occupied by" railroad
tions; whether this would mean only their
rights of way, the designation of "in any
city, village or township" being only for the
purpose of venue, or mean, which is difficult
to suppose, the corporation's "roundhouses,
shops, yards, repair tracks, turntables,
and other buildings used in connection"
with the business of a railroad, which
seems to be the alarm of plaintiff in error.
At any rate, such construction has not yet
been given and may never be given, and
we cannot anticipate that it ever will be
given, and on that anticipation hold the
statute invalid. We have heretofore ex-
pressed the propriety of waiting, when a
state statute is attacked for unconstitu-
tionality, until the state court has given it
a construction which may justify the at-
tack. Plymouth Coal Co. v. Pennsylvania,
232 U. S. 531, 546, 58 L. ed. 713, 720, 34
Sup. Ct. Rep. 359. The statute has only
been applied in favor of a contiguous land-
holder, and only one recovery has been per-
mitted. So limited, we think its validity
must be admitted under the doctrine of the
May Case. But we express no opinion con-
cerning the consequences if a broader con-
struction should be accepted by the state

court

Judgment affirmed.

(242 U. S. 281)

IN THE MATTER OF THE PETITION OF
THE INDIANA TRANSPORTATION

COMPANY FOR WRIT OF PROHIBI

TION.

PROHIBITION 26-PARTIES RETURN-
WHO MUST MAKE.

Parties permitted to become colibellants in an admiralty cause pending in a Federal district court by an order which

a writ of prohibition should not issue to prevent the carrying out of an order permitting petitioners to become colibellants in an admiralty cause pending in the District Court of the United States for the Northern District of Illinois. Denied, and time extended for filing return.

Mr. Harry W. Standidge for the petition.

Memorandum opinion by Mr. Chief Justice White, by direction of the court:

Speaking in a general sense, on the ground that in an admiralty cause pending in the district court of the United States for the northern district of Illinois, one of the judges of that court had, by an order which he was absolutely devoid of jurisdiction to make, permitted more than 270 persons to become colibellants, an application by the defendant in the cause was made on the 16th day of October, 1916, for leave to file a petition for prohibition directed to the judge in question, to prevent the carrying out of the order. On the 23d of October permission to file the petition for prohibition was granted and a rule to show cause was directed to be issued to the Honorable Kenesaw M. Landis, the judge by whom the order complained of was made. On the day upon which this rule was returnable, December 4, there was no response to the rule made on behalf of the respondent judge, but by oral motion a request was made on behalf of the parties who, it was asserted, had been mistakenly permitted to become colibellants, that they be treated as the respondents to the rule, and be permitted in that capacity to file a return to the rule, a filed and presented for filing in case the copy of which return was prepared to be permission asked was granted, and that request is the matter now before us for consideration.

We are of opinion, however, that the substitution of respondents asked for cannot be granted, since it is apparent that the judge

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

who rendered the order and against whom the | turn when that subject arises for considerawrit prayed for, if allowed, is to be directed, is the essential party respondent, however much, when his return to the rule is made, either by his authority, or because of their interest in the result, or as friends of the court, the persons to be adversely affected by the granting of the relief prayed may be heard to sustain the sufficiency of the re

tion. We therefore transfer the date fixed
for the return in the original rule to show
cause from the 4th day of December, 1916,
to the 15th day of January, 1917, in order
to afford ample opportunity for the making
by the respondent judge of the return which
the original order calls for.
And it is so ordered.

(242 U. S. 462)

ILLINOIS CENTRAL RAILROAD COM-, hold or grab iron placed at the top of the

PANY et al.
V.

GEORGE R. WILLIAMS.

COMMERCE 85-SAFETY APPLIANCES
HANDHOLDS SUSPENSION OF DUTY BY
INTERSTATE COMMERCE COMMISSION.

The requirement of the Safety Appliance Act of April 14, 1910 (36 Stat. at L. 298, chap. 160, Comp. Stat. 1913, § 8618), § 2, that cars having ladders shall also be equipped with secure handholds or grab irons on the roofs at the tops of such ladders, was not, and could not be, suspended by an order of the Interstate Commerce Commission, made pursuant to § 3 of that act,1 which, after directing the Commission to standardize the safety appliances called for by § 2, provided that the Commission, upon full hearing and for good cause, might extend the period within which any common carrier should comply with the provisions of § 3 with respect to the equipment of cars actually in service upon the date of the passage of the act. The sole function of such proviso is to give the Commission the discretionary power and duty of determining the length of time which the carrier shall be allowed to make the safety appliances called for by § 2 conform to the uniform standards which the Commission, under § 3, was to prescribe.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. § 138; Dec. Dig. 85.]

[No. 637.]

Argued December 6, 1916. Decided January 8, 1917.

N ERROR to the Supreme Court of the State of Mississippi to review a judgment which affirmed a judgment of the Circuit Court of Hinds County, in that state, in favor of plaintiff in a personal-injury

action. Affirmed.

See same case below, 158.

Miss.

72 So.

The facts are stated in the opinion.
Messrs. Charles C. Le Forgee, Blewett
Lee, Charles N. Burch, and Robert B. Mayes
for plaintiffs in error.

Messrs. William H. Watkins and M. F.
Harrington for defendant in error.

Mr. Justice Clarke delivered the opinion of the court:

It will contribute to brevity in this opinion to designate the parties as they were in the state circuit court, the defendant in error as plaintiff and the railroad companies as defendants.

The plaintiff, a switchman in the employ of the defendants, was in the act of mounting, by means of a ladder, to the top of a box car to set the brake, when the hand

ladder, and intended to be fastened securely to the roof of the car, gave way, causing him to fall to the ground and sustain injuries, for which he instituted suit in a circuit court of Mississippi, and recovered a judgment, which was affirmed by the supreme court of the state. This judgment is now here for review on writ of error.

Counsel for the defendants concede that the plaintiff pleaded and proved a case which entitles him to recover under the provisions of the Supplement to the Federal Safety Appliance Act, approved April 14, 1910 [36 Stat. at L. 298, chap. 160, Comp. Stat. 1913, § 8618], if § 2 of that act was in effect at the time the accident to the plaintiff occurred on the night of March 15th, 1913; but they claim that this section of the act was not in effect at that time, because it had been suspended until July 1st, 1916, by an order of the Interstate Commerce Commission, issued on March 13, 1911, under the authority contained in the proviso of § 3 of the act.

Thus the sole question presented for decision is, Does the order issued by the Interstate Commerce Commission on March 13, 1911, suspend the provisions of § 2 of the act under discussion until July 1st, 1916?

To answer this question requires an examination of §§ 2 and 3 of the Act of April 14, 1910, and of the order of the Interstate Commerce Commission of March 13, 1911.

Section 2 of the act provides that on and after July 1st, 1911, "all cars" used by any common carrier subject to the act, "requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure. handholds or grab irons on their roofs at the tops of such fadders," and it makes it unlawful to use cars not so equipped.

A box car could not properly be used without a secure ladder, and since, by its terms, all cars having ladders must be equipped with secure handholds, the application of this section (if it was not suspended) to the case at bar, the neglect of its requirements, and the liability of the defendants to the plaintiff for the result to him of such neglect, are too clear for discussion. Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482.

Section 3 of the act provides that within six months from the passage of the act the Interstate Commerce Commission "shall designate the number, dimensions, location and manner of application of the appliances provided for by § 2 of this act" and shall give notice of such designation to all common carriers subject to the provi

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

1 Comp. St. 1913, § 8619.

sions of the act by such means as the Commission may deem proper, and "thereafter said number, location, dimensions, and manner of application, as designated by said Commission, shall remain as the standards of equipment to be used on all cars subject to the provisions of this act;" and failure to conform its equipment to such standards shall subject the neglecting carrier to like penalty as failure to comply with any requirements of the act. Then follows this proviso, upon which the defendants rely, viz.:

"Provided, That the Interstate Commerce Commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of the passage of this act."

Pursuant to the command of this 3d section, the Interstate Commerce Commission, on March 13, 1911, issued an order desig. nating "the number, dimensions, sizes and manner of application of the appliances provided for by § 2 of the act," and specifically describing the size, character, and location of ladders on "freight-train cars" and of handholds to be maintained at the tops of such ladders. By the terms of this order carriers were granted an extension of five years from July 1st, 1911, in which to bring such safety appliances into compliance with the standards by it prescribed.

The claim of the defendant railway companies with respect to these two sections is built up wholly upon the assertion, it cannot properly be called argument, that because, in the part of § 3 just quoted, reference is made to § 2 for a description of the safety appliances to be standardized, therefore the whole of § 2 must be treated as so incorporated into § 3 as to be comprehended within the expression of the proviso giving power to the Interstate Commerce Commission to extend the period within which any common carrier "shall comply with the provisions of this (the 3d) section," etc., and that § 2 was therefore suspended until July 1st, 1916, by the Commission's order of March 13, 1911.

That this strained and artificial construction of the section cannot be allowed may be made clear by a brief consideration of the terms and purposes of the two sections of the act.

of exercising ordinary care to provide such safety appliances and to keep them in repair into a statutory, an absolute and imperative, duty, of making them "secure," and to enforce this duty by appropriately severe penalties. Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct. Rep. 612.

It is equally clear that the purpose of the 3d section is to require that the safety appliances "provided for by § 2 of the act" shall ultimately conform to a standard to be prescribed by the Interstate Commerce Commission; that is, that they shall be standardized, shall be of uniform size and character, and, so far as ladders and handholds are concerned, shall be placed as nearly as possible at a corresponding place on every car so that employees who work always in haste, and often in darkness and storm, may not be betrayed, to their injury or death, when they instinctively reach for the only protection which can avail them when confronted by such a crisis as often arises in their dangerous service. It is for such emergencies that these safety appliances are provided, for service in those instant decisions upon which the safety of life or limb of a man so often depends in this perilous employment, and therefore this law requires that ultimately the location of these ladders and handholds shall be absolutely fixed, so that the employee will know certainly that night or day he will find them in like place and of like size and usefulness on all cars, from whatever line of railway or section of the country they may come. This highly important and humane purpose must not be defeated by finesse of construction such as is pressed upon our attention in the argument of this case.

To this primary purpose of protecting the life and limb of employees is added the purpose of protecting the lives of passengers and of securing the safety of property by requiring uniform standards as to other equipment of cars, such as coupling appliances, brakes, and the like.

To change these safety appliances on all the cars in the country from what they were as contemplated by § 2,-"secure," but differing "in number, dimensions, location and manner of application,"-to what they must be when standardized to meet the requirements provided for in § 3, was regarded by Congress as a work so great and so expensive that it wisely com

The congressional purpose in enacting § 2 of the act is very plain. At the time the act was passed railroad carriers had in serv-mitted to the informed discretion of the ice many box cars, requiring for their proper use secure ladders and secure handholds or grab irons on their roofs at the tops of such ladders, and the purpose of this section clearly is to convert the general legal duty 37 S. C.-9.

Interstate Commerce Commission the power and duty of determining the length of time which the carriers should be allowed in which to accomplish it. To give this discretion to the Commission is the function,

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