# Railway Company v. B'Shears

In Railway Company v. B'Shears, 59 Ark. 237 (1894), appellee B'Shears and other citizens of the Arkansas town of Fulton, petitioned appellant railroad to stop its "Cannon Ball" train at Fulton. Under Mansfield's Digest §§ 5500-5501, a railroad can be required to stop in a town upon petition signed of fifty of the town's citizens, if the petition is accompanied by tender of "sufficient means to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of such railroad company." But in Fulton's case, no grading was necessary, so the town's citizens did not submit their petition with any tender. When the railroad refused the Fulton citizens' petition, they sought a writ of mandamus in the circuit court, as authorized by Mansfield's Digest § 5502. The court issued the mandamus, and the railroad appealed to the Arkansas Supreme Court.
The supreme court (Hughes, J.) reversed the mandamus because the town's citizens did not make any tender with their petition to the railroad: "Where the statute makes no exceptions, the courts can make none." 59 Ark. at 244. A dissenting opinion was filed. Id. (Battle, J., joined by Wood, J.).
Supreme Court of Arkansas
59 Ark. 237
Railway Company v. B'Shears
Appeal from Hempstead Circuit Court
Opinion delivered June 9, 1894.
* Court Documents
* Opinion of the Court
* Dissenting Opinion Battle
[Opinion of the court by Justice SIMON P. HUGHES. Dissenting opinion by Justice BURRILL B. BATTLE, joined by Justice CARROLL D. WOOD.]
Appeal from Hempstead Circuit Court.
RUFUS D. HEARN, Judge.

## Statement by the CourtStatement by the Court

This is an appeal from a judgment of the circuit court of Hempstead county, granting a mandamus to compel the appellant to stop its fast train, known as the "Cannon Ball," at the incorporated town of Fulton upon the line of the road in said county.
The petition states that petitioner was the mayor of Fulton, an incorporated town in Hempstead county, Arkansas; that defendant was an incorporated railway, and a common carrier of passengers and freight; that defendant's railway extended from Texarkana through Fulton to Little Rock, Arkansas; that certain trains were operated on said railway, passing north and south through Fulton, known as the "Cannon Ball" trains; that respondent had all the switches and side tracks in said town of Fulton necessary for its use and convenience in stopping of its trains, freight and passenger, and a commodious depot building for the use and comfort of its passengers; that respondent caused said "Cannon Ball" trains to run rapidly through said town of Fulton without stopping, to the great annoyance and ​inconvenience of plaintiff and the other citizens of said town; that plaintiff and more than fifty citizens of said town of Fulton had applied in writing to Jay Gould, president, and to W. T. Kelly, superintendent, of defendant's corporation, and asked that said "Cannon Ball" trains be stopped at said town of Fulton, as provided for under the statute; that said application had been refused.
This petition was demurred to upon the following grounds:
* Because it failed to set up facts sufficient to constitute a good cause of action against this defendant.
* Because it failed to set up facts sufficient, under the statutes of the State of Arkansas, to entitle him to a writ of mandamus as prayed.
* Because the plaintiff had no legal capacity to institute this suit.
* Because there was no equity in the petition entitling plaintiff to the relief sought.
After argument, this demurrer was overruled, and all proper exceptions duly saved.
The appellant answered, and, among other things, stated that two of its passenger trains and one local freight train carrying passengers going south, and the same number and kind of trains going north, stopped at the town of Fulton each day—one passenger at 7:22 a. m., going south; one passenger at 7:55 p. m., going south; one passenger at 7:55 p. m., going north; one passenger at 8:32 p. m., going north. That the "Cannon Ball" going south passes Fulton at 12:45 p. m., and does not stop. That the Texas special passes Fulton at 3:01 p. m., and does not stop. That these trains run to and from St. Louis and Memphis. That the "Cannon Ball" was a fast train carrying United States mail and passengers, and was under the necessity of making fast time to make proper connection with trains at Texarkana and ​St. Louis, and that the granting of the petition would interfere with the rapid transportation of interstate passengers, and the rapid transfer and delivery of the United States mails; that said train stopped at all places where another road crossed or connects with appellant's road, etc.
After the evidence was concluded, the court declared the law to be as follows:
* That if, at the time of the application of the plaintiff to defendant to stop the train mentioned in complaint at Fulton, Ark., the defendant had all the necessary switches and side tracks at the town for the use and convenience in the stopping of the trains of the defendant, then it was not necessary to tender the reasonable expenses of grading a switch or side track at said town, required by sec. 5501 of Mansfield's Digest, before the plaintiff would be entitled to insist upon the stopping of the trains prayed for.
* That if the application required to be made under sec. 5500 of Mansfield's Digest was made in writing to W. T. Kelly, superintendent of defendant's road from Poplar Bluff to Texarkana, while the president of the company and the general superintendent were non-residents and absent from the State, such application is sufficient, and a sufficient compliance with said section.
* That, under sec. 5500 of Mansfield's Digest, if the evidence shows that Fulton was an incorporated town in this State, situated on the line of defendant's road, and that fifty of its citizens made application to defendant, as required under said section, asking it to stop its trains, which are mentioned in the complaint, at such town, then it became the duty of the company to comply with the requirement of the statute, and stop the train.
* That statute is not an interference with section 8, article 1, of the constitution of the United States, ​which provides that Congress shall have power to regulate the commerce among the several States. The legislature of the State may, in the exercise of its police power, pass any law of a police character regulating the operation of railroad trains, which it considers necessary to protect the comfort, convenience and safety of its trains, notwithstanding such regulation may affect interstate trains. Upon the facts of this case, the court declares the law against the defendant, and mandamus is granted."
The defendant at the time objected separately to each of the declarations of law made by the court, and also excepted to the finding of the court upon the facts in the case, and also in rendering a judgment in favor of the plaintiff, and in granting said mandamus.
A motion for a new trial was then filed, overruled, exceptions saved, and an appeal prayed.
The following errors were assigned in the motion for a new trial:
* Because the finding of the court was contrary to the law.
* Because it was contrary to the evidence.
* Because it was contrary to both the law and the evidence.
* Because the court erred in refusing to declare the law as set out in prayers 1, 2, 3, 4 and 5, as asked by defendant.
* Because the court erred in declaring the law to be as set out in prayers 1, 2, 3 and 4, as given by the court upon its own motion.
* Because the court erred in declaring the law and facts in favor of plaintiff, and in granting the writ of mandamus.
* Because the court has no jurisdiction to grant plaintiff's petition under the constitution and laws of United States.
​The petition for mandamus in this case was filed under secs. 5500-1-2, Mansfield's Digest, which read as follows:
   "Sec. 5501. Before any town may or can insist upon and compel the stoppage of trains as in this act provided, the corporate authorities of such town shall provide and make tender to such railroad companies sufficient means to defray the reasonable expenses of grading a switch o side track at such place of stopping for the use of such railroad company.
The petition failed to state that the corporate authorities of the town of Fulton had provided, and had made tender to the defendant railway company of, means sufficient to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of such defendant.
The circuit judge found as a fact "that, at the time of the application of the plaintiff to defendant to stop the trains mentioned in the complaint at Fulton, Ark., the defendant had all the necessary switches at the town for its use and convenience in the stopping of the train of defendant, and that, therefore, it was not necessary for plaintiff, or the town of Fulton, to tender to ​the company sufficient means to defray the reasonable expense of grading a switch or side track at said town, as required by section 5501, before the plaintiff would be entitled to insist upon the stopping of the trains prayed for."
The issues upon the demurrer and upon the finding of facts by the court are the same, and may be considered together.

## Argument for appellantArgument for appellant

Dodge & Johnson for appellant.
The statute is plain and unambiguous. The plaintiff having failed to pay or tender the consideration required by the act, the failure is fatal. No exception is made in the statute, and the courts can make none. 1 H. L. App. Cases, 611, 620; Mansf. Dig. sec. 5501, etc.; Sutherland, Stat. Const. secs. 454, 458-9, 390, 399, 325-6, 427; 28 Ark. 360; 48 id. 155; Sedg. St. Const. sec. 343; 55 Ala. 408; 3 N. Y. 9; 73 Ala. 390; 67 Barb. 350; Endlich, Int. Stat. secs. 433-4, 17; 13 Ark. 292; 16 id. 694; 20 id. 18; 24 id. 494; 39 id. 247; 42 id. 122; 46 id. 37; 53 id. 481 ; 30 A. & E. R. Cas. 511; 43 id. 260; 142 U. S. 508; 136 U. S. 393; 110 id. 667-81-2.

## Argument for appelleeArgument for appellee

Scott & Jones for appellee.
The law never requires a useless or vain thing. Having already all the tracks necessary, no tender was necessary. The reason has failed. Endlich, Int. St. sec. 295, p. 399. The intent and spirit of the act should govern; and not the literal meaning, when absurd consequences would otherwise follow. Sedg. Const. & St. Law, p. 255, note a (2d ed.); 35 Ark. 61; 37 id. 491; 48 Ark. 305.
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