Sexton v. Atchison, Topeka & Santa Fe Ry.

ANGELLOTTI, C. J.

Demurrers to plaintiff’s complaint were sustained in the superior court and judgment was thereupon given in favor of defendants. This is an appeal by plaintiff from such judgment.

The action was by plaintiff, as a stockholder of the defendant railway company, against such railway company and its directors and the members of the railroad commission of the state, to obtain a decree restraining the railway company

[761]

and its directors from issuing or honoring free transportation over its lines in the state to the railroad commission, its officers, and employees, and restraining the railroad commission from instituting or prosecuting any action, civil or criminal, as against said railway company or any of its officers, agents, or employees for failure to comply with the provisions of the Public Utilities Act relative to such transportation.

The Public Utilities Act provides in section 11, as follows: “The commissioners and the officers and employees of the commission, shall, when in the performance of their official duties, have the right to pass, free of charge, on all railroads, cars, vessels and other vehicles of every common carrier . . . subject in whole or in part to control or regulation by the commission, between points within this state, and such persons shall not be denied the right to travel upon any.railroad, car, vessel or other vehicle of such common carrier, whether such railroad, car, vessel or other vehicle be used for the transportation of passengers or freight, and regardless of its class.” (Stats. 1915, p. 121.) It further provides in subdivision 3 of section 17 that “the members of the railroad commission, their officers and employees, shall be entitled, when in the performance of their official duties, to free transportation over the lines of all common carriers within this state.” (Stats. 1915, p. 126.) It is in pursuance of these provisions that the directors of the railway company have authorized and caused the issuance of free transportation to the members, officers, and employees of the railroad commission, and caused the same to be honored, and will continue to do so unless restrained. Under other provisions of the Public Utilities Act, any railway company failing to comply with any provision of the act, including these provisions, and its officers, are subject to severe penalties, each day’s continuance of such a failure being declared a separate and distinct offense, and it is substantially alleged that the penalties are so drastic that neither the company nor its directors can reasonably afford to refuse to comply with the provisions for the purpose of testing the validity of the same. It is further alleged in the complaint that, in the event of any such failure, the railroad commission will institute proceedings against the company and its officers to enforce the civil and criminal penalties prescribed by the act.