St. Louis & San Francisco Railroad v. State

Smith, J. An information was filed before a justice of the peace of Washington County in which it was charged that the appellant railroad company had failed and refused to comply with Order No. 3085 of the Railroad Commission of Arkansas, which said order required appellant to establish and maintain a joint interchange track at Fayetteville with the Kansas City & Memphis Railroad Company, and to do switching thereon. Judgment was rendered by default in the justice court, and an appeal was prosecuted to the circuit court, in which court a demurrer and an answer were filed. Various grounds of defense were set up in the answer which we need not consider here, but, among other defenses, it was alleged that the order of the Railroad Commission upon which the prosecution was based, was void for the reason that no petition for such order signed by fifteen bona fide citizens residing within the territory affected by the petition was ever filed, and as we agree with appellant in this contention we have found it unnecessary to consider.any of the other defenses set out in the answer. Appellant’s demurrer was overruled, but, upon the trial before the court sitting .as a jury, considerable evidence was offered, at the conclusion of which the court found appellant guilty as charged, and this appeal is prosecuted from the judgment of the court imposing a fine against appellant. It is conceded by counsel for the State that, although there are eighteen names signed to the petition, all these signers are corporations and co-partnerships except one, but it is argued that tbe provisions of tbe statute in regard to the number of signers is directory, and that the statute was substantially complied with when fifteen names of individuals, corporations and co-partnerships were signed to tbe petition. Section 1 of Act 149 of tbe Acts of 1907, under which the Railroad Commission proceeded in making the order in question, provides that the commission shall be empowered to hear and consider all petitions for train service, depots, stations, spurs, sidetracks, platforms, and tbe establishment, enlargement, equipment, and discontinuance of the same upon the right-of-way of any railroad in this State, provided, said petitions shall be signed by at least fifteen boña fide citizens residing in the territory sought to be affected by said petitions. In the case of St. Louis, I. M. & S. R. Co. v. Bellamy, 113 Ark. 384, it was decided that a petition “ ‘signed by at least fifteen bona fide citizens residing within the territory sought to be affected by said petition’ is essential to give,the commission jurisdiction” to act upon the matters mentioned in the act quoted from. (1) It has been many times decided that a corporation is not a citizen within the meaning of the equal privileges and immunities clause of tbe Federal Constitution, and this court has decided that section 18, article 2, of the Constitution of this State, containing the same provisions as those of tbe Federal Constitution, does not apply to corporations. C. R. I. & P. R. Co. v. State, 86 Ark. 423. And while it is held that corporations are persons within the meaning of the Fourteenth Amendment to the Federal Constitution, which provides that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction tbe equal protection of tbe law, it has been as often decided that corporations are not included in that portion of the same amendment which provides that no State shall make or enforce any law which shall abridge tbe privileges or immunities of citizens of tbe United States. A number of tbe cases so bolding are cited in the opinion of this eonrt in the case of Chicago, R. I. & P. R. Co. v. State, supra. (2) A number of definitions of the word “citizen” •are found in volume 1 of Words & Phrases, and we quote the following definitions there given: “ ‘ Citizen’ ordinarily means only á natural person, •and will not be construed to include a corporation 'unless the general purpose and import of the statute in which the term is found seem to require it. International & Life Assr. Co. v. Haight, 35 N. J. Law (6 Vroom) 279, 282.” (3) In the case of School Dist. No. 11 v. School List. No. 20, 63 Ark. 543, the court considered the meaning of the word “citizen” as employed in the statute authorizing petitions for change of boundaries of school districts. The court, through Bunn, C. J., said that, from the common understanding of the meaning of the word ‘ ‘ citizen, ’ ’ and from the fact that some other word than “citizen” is employed in the statutes authorizing these changes, whenever persons other than electors were included, the word “citizen,” as there used, meant an “elector.” It is not customary to speak of corporations or of co-partnerships as residing in a particular locality. They must, of course, have their situs, or, as is sometimes said, their “domicile” in a particular locality, but it would not be said that they were residents of that locality. Moreover,, the use of the qualifying words bona fide is significant. Evidently the Legislature did not intend to burden the Railroad Commission with the consideration of petitions, for the things authorized to be petitioned for, unless at least fifteen bona fide citizens residing in the locality to be affected were sufficiently interested to petition therefor. It is no doubt true that a corporation or a copartnership might be interested 'and greatly benefited by relief such as was prayed for in the petition in question, but these are questions which the Legislature apparently has left for the action of ‘ ‘ citizens residing in the locality to be affected,” which language we construe tornean permanent residents as distinguished from mere sojourners, and as excluding corporations and co-partnerships and including only individuals. If corporations or companies were taken into account, the question of the authority of the officers signing the names of such corporations or companies would arise where the statute did not provide what officers should sign for such companies .or corporations. The presumption is not to ibe indulged that petitions will 'be signed upon mere presentation, but, upon the contrary, the presumption of law must be that signers will not seek to put in motion the machinery of the law to require a. railway company to grant the relief prayed until .the signer has concluded that the relief prayed for should be granted. If the rule were otherwise, the requirement of a petition would be futile. For a corporation to exercise this function would require investigation and consideration by its directors and a conclusion to be reached by them. No anere stockholder or officer of a corporation upon his own initiative would have the right to declare the corporate will. Some other officer or stockholder might be of a contrary opinion, and to avoid this conflict a corporation, if authorized to act at all, would have to act in some manner permitted by. statute. But the Legislature having made no provision by which the assent of a corporation might be evidenced, but, upon the contrary, having used language which in its ordinary acceptation would refer only to individuals, we have concluded that the petition was not signed as required by law, and that the Railroad Commission was, therefore, without jurisdiction to make the order upon which this prosecution is based, and the cause will, therefore, be reversed and dismissed.