Appellant brings this appeal from a judgment of conviction in the Sebastian County Circuit Court, imposing a fine of $50 for a violation of the "Full Switching Crew Law" of Arkansas, Act No. 67 of the Acts of 1913, which Act now appears as 11161, 11162, 11163 and 11164 of Pope's Digest of the Statutes of Arkansas.
Counsel for appellant, and the Prosecuting Attorney who issued the information, entered into a stipulation of facts reading as follows: *Page 907
"It is stipulated and agreed by the parties hereto that:
"I. The defendant, The Kansas City Southern Railway Company, is a Missouri corporation engaged in the business of a common carrier in the State of Arkansas and other states;
"II. It is a railroad company, or corporation, operating a railroad not less than one hundred miles in length;
"III. In the operation of its railroad the defendant conducts a branch operation between Poteau, Oklahoma, and Fort Smith, Arkansas, a distance of 28.9 miles, over tracks belonging to the Frisco Railway Company under a trackage agreement with the Frisco. This operation is exclusively car-lot operation, involving no less-car-lot shipments, no passenger trains, no mail, no passengers and no main line regular or extra freight trains on the leased track. The defendant operates between these points, on the leased track, one freight train each way daily except Sunday. Trains consisting of less than 25 cars are operated over the entire route from Poteau to Fort Smith by a crew of the defendant's employees consisting of an engineer, a fireman, a conductor and two brakemen. Such trains are operated between Poteau and Heavener, Oklahoma, with a crew of the defendant's employees consisting of an engineer, a fireman, a conductor and two brakemen, and between Heavener, Oklahoma, and Fort Smith, Arkansas, with a crew of the defendant's employees consisting of an engineer, a fireman, a conductor and two brakemen. Said crews operate such trains into Fort Smith, and there engage in spotting cars. "Spotting" involves switching, pushing or transferring of cars across public crossings within the city limits of the said city of Fort Smith. When the basic work day expires a second (or relief) crew, consisting of the same number of employees, completes any spotting (Switching, as aforesaid) and operates a newly made up train back to Poteau, Oklahoma, with the same engine and caboose as was used by the crew on the operation *Page 908 into Fort Smith. A basic (or nominal) work day for the defendant's employees herein referred to in this type of service is eight hours. The spotting (switching, as aforesaid) operations in Fort Smith occur on tracks and property belonging to both the defendant and the above referred to Frisco; shown on Exhibit B.
"IV. The City of Fort Smith, Arkansas, is a city of the first class;
"V. It is agreed that on October 28, 1947, the crew of the defendant; that is, one engineer, a fireman, a conductor and two brakemen, did engage in spotting cars as defined in Paragraph III above in the City of Fort Smith, Arkansas.
"VI. Exhibit B, attached to this stipulation and made a part hereof, shows the correct location of the defendant's Kansas City Southern Company, main line railroad, and the branch line operation over tracks leased from the Frisco between Poteau, Oklahoma, and Fort Smith, Arkansas.
"VII. It is agreed by the parties that Exhibit A shall be attached to this stipulation and become a part of this stipulation, said exhibit having been copied from records kept by the company, as to the revenues received and expenditures connected with this branch operation. Said revenues and expenditures of this branch operating being kept separate and apart from the revenues and expenditures of the other operations.
"VIII. The Kansas City Southern Railway Company agrees to immediately comply with the Full Crew law if the courts adjudge the operation of this branch to be a violation of same.
"Executed at Fort Smith, Arkansas, this 19 day of January, 1948."
The case was submitted to the trial court sitting as a jury upon the agreed stipulation and exhibits thereto without oral testimony.
Arkansas has three so-called "Full Crew Laws," being Act No. 116 of 1907 (11155, 11156 and 11157, *Page 909 Pope's Digest); Act No. 298 of 1909 (11158, 11159 and 11160), Pope's Digest), and Act No. 67 of 1913 (11161, 11162, 11163 and 11164, Pope's Digest), the last named Act being the "Full Switching Crew Law," not to be confused with the two former Acts herein mentioned, and being the only Act applicable in this case.
The only question for determination here is whether the Fort Smith branch of the appellant's railway system is a railroad less than 100 miles in length such as would exclude it from the provisions of Act No. 67 of 1913 (11163, Pope's Digest). In approaching this question, we first point to paragraph II of the stipulation which, of course, refers to appellant's entire system.
Appellant seeks refuge in the case of Chicago, R. I. F. Ry. Co. v. The State, 86 Ark. 412, 111 S.W. 456, but it must be noted that case was primarily an attack upon constitutionality of Act No. 116 of 1907, it being asserted that the provisions of that Act requiring railroad companies to equip certain freight trains with at least three brakemen, imposed an undue burden on interstate commerce, and hence was in conflict with Acts of Congress on that subject. While this Court upheld the Act, as did the Supreme Court of the United States in affirming the judgment of this Court, 219 U.S. 453, 31 S. Ct. 275,55 L. Ed. 290, neither of the two above mentioned questions decided in that case is presented here, and reference to the factors and considerations to be used in determining whether a railroad is a short independent line or a part of the over-all system of a trunk line. We agree that ownership alone is not the true or only test, but rather the issue is whether "the railroad companies operate (the line) as a part of their systems."
We do not think it important or controlling to a determination of this case that the employees (train crews) and equipment (engine and caboose) used on the Fort Smith branch of appellant's railroad were restricted to branch line service, as contended in appellant's brief, (though not included in the stipulation) for it is not even suggested in appellant's brief that such employees do not have service and seniority rights over the entire system, *Page 910 or that they are not paid on the same basis and with the same type vouchers drawn on the general treasury of the company, as are all other employees of appellant. Likewise, it is not shown that either the employees or equipment used is peculiar to that particular branch, or that such equipment carries different markings, and could not or would not be freely used on any other part of appellant's System, where adaptable; nor do we think it important that "revenues and expenditures of said branch line operations are kept in books and records separate and apart from the main line operation." This does not appear to be unusual in railroad accounting. It is not suggested by appellant that the revenues from this branch are withheld from the general treasury of the company, or that they are not expended as are other available revenues.
This leaves only the question of appellant "operating between Poteau, Oklahoma, and Fort Smith, Arkansas, a distance of 28.9 miles, over tracks belonging to the Frisco Railway Company under a trackage agreement with the Frisco." Can it be seriously urged that this arrangement or practice is unusual in the annals of railroad operation? We think not.
Appellant's position in this case is little, if any, more tenable than were its contentions in the case of Kansas City Southern Railway Company v. The State, 116 Ark. 455,174 S.W. 223, wherein it urged that "its line in said county (Benton), starting at Sulphur Springs enters the State of Oklahoma at a distance of 28.8 miles, the exact mileage between the Missouri line and the Oklahoma line being 28.83 miles and denying that the train was operated unlawfully or in violation of the `Three Brakemen Act,' Act No. 116, 1907, alleging that the same was not applicable to such train or the operation of its road in that county." This Court upheld the Benton Circuit Court in its judgment of conviction.
Finally, it is noted that this appellant was tried and convicted on a similar charge of a like offense in the same court of the same county, November 20, 1935, and we affirmed in an opinion written by the late Justice *Page 911 BUTLER, The Kansas City Southern Railway Company v. The State, 194 Ark. 80, 106 S.W.2d 163. The legislative Act with which we are here concerned (Act 67 of 1913) was upheld by this court in an opinion written by Chief Justice McCULLOCH, St. Louis I. M. S. Railway Company v. The State, 114 Ark. 486, 170 S.W. 580, later affirmed by the Supreme Court of the United States,240 U.S. 518, 36 S. Ct. 443, 60 L. Ed. 776.
There being no error in the record, the judgment is affirmed. It is so ordered.