I respectfully dissent from the majority opinion. The facts are undisputed. A fair and concise summation by appellant is: "The Kansas City. Southern Railway Company (Defendant-Appellant) is a common carrier for hire. It operates a main line railroad through the states of Missouri, Kansas, Arkansas, Oklahoma, Louisiana and Texas, from Kansas City, Missouri, to Port Arthur, Texas. Said main line railroad does not serve Fort Smith. It runs through Oklahoma several miles west of Fort Smith. Appellant operates a branch line railroad from Poteau, Oklahoma, to Fort Smith, over 28.74 miles of track owned by the St. Louis San Francisco Railway Company (Frisco).
"Inside the city limits of Fort Smith, appellant owns two miles of track, and it has trackage rights over 1.02 miles of Frisco tracks. For several years appellant has utilized said leased trackage from Poteau to Fort Smith for a branch operation. It transports thereover only carload shipments of freight. There is no mail, passenger or express service on said branch line.
"It operates one freight train of less than 25 cars each day. No main line equipment is used in the Fort Smith branch operation. Crews consist of an engineer, a fireman, a conductor and two brakemen. They work exclusively on the Fort Smith branch line operation.
"Carlot shipments are brought into Fort Smith over the branch line by one crew; and cars are spotted within the city limits. A second crew takes a newly made up train at Fort Smith back to appellant's main line at *Page 912 Poteau, Oklahoma. Spotting and switching cars within the Fort Smith city limits is confined to the 3.02 miles of track owned by appellant and the Frisco railroad, which said tracks are separated from appellant's main line by the 28.74 miles of Frisco tracks.
"The Fort Smith branch is operated by appellant as a separate unit from its main line. Seperate books are kept on said operation, and as stated, cars are switched exclusively on said branch line."
Appellant was convicted under the provisions of 11161-11164, Pope's Digest, (Act 67 of the 1913 Legislature), for failing to provide the full number in its switching crew as allegedly required by this act. This statute is highly penal and must be strictly construed. It admits that only five men constituted the crew here involved, but earnestly argues that the spur or branch line track in question was less than 100 miles in length and was not used as a continuous line with the main line, and therefore the provisions of the act, supra, did not apply to it. This, I think, on the facts presented becomes the decisive question in this case. Section 11163 provides: "The provisions of this Act . . . shall not apply to railroad companies or corporations operating railroads less than 100 miles in length."
As I read the facts, this short branch line, or spur, is less than 100 miles in length, in fact is 28.74 miles, and in my opinion, the principles of law announced in C. R. I. P. Ry. Co. v. State, 86 Ark. 412, 111 S.W. 456, apply with equal force here, and are controlling.
In the instant case, it appears undisputed that appellant maintains this branch line as a separate operation from its main line operation. It operates exclusively in carlot shipments. No passenger trains are operated on his leased track and no mail or passengers carried. No main line regular, or extra freight trains, are operated on this track. Appellant operates on this leased track one freight train each way daily except Sunday. All trains consist of less than 25 cars and a crew of one engineer, one fireman, one conductor and two brakemen. *Page 913 All freight thus hauled over this branch line is delivered by the main line in the same manner as any connecting carrier would handle it. Admittedly this branch line, or spur, is owned, for all purposes here, by appellant. Ownership, however, as pointed out in the Rock Island case, supra, is not the sole test. It was there said:
"That there is a marked difference in the management, control and operation of long and short line railroads is a matter of common knowledge, known to all observers. Great trunk lines have been constructed through the country that are highways of interstate and international commerce. Both freight and passenger trains pass back and forth upon them every few minutes, and great speed is attained in their movement. On the other hand are found many short lines which supply the needs of small communities, and upon such lines there are but few trains, and those of light weight and of few coaches and cars in comparison with the magnificent passenger and tremendous freight trains moved upon the large trunk lines. Bringing the comparison more nearly home, there are found in this State important through lines, upon which are moved many passenger and freight trains daily; and there are also found many short lines of railroad, some owned and operated by independent companies and some operated as branches and feeders to the larger companies by whom they are owned or controlled. Upon these small roads the necessity of protecting trains from collision from either end is materially less than upon the great lines where the trains are more numerous, heavier and accustomed to greater speed. The movement of a train is necessarily less fraught with danger where there is no other train upon the line, or but few, than upon a line where trains are moving every few minutes, or every few hours. Short lines are usually lightly constructed, and carry light rolling stock in comparison to the great systems. These and other matters of common observation of the difference between long and short lines of railroad can afford reasons why the Legislature should leave untouched the short lines of *Page 914 railroads with legislation designed to promote safety in operation of long freight trains. . . .
"It may be argued that the Legislature intended to treat these short lines and branches of the larger lines as part of the large systems. If the railroad companies operate them as part of their systems, certainly they are within the act, and the similarity with the short independent lines does not then exist. If the railroad companies operate them separately as independent lines are operated, then there can be no just reason in principle for a distinction between them and the seperate lines. Such distinction would then be based solely upon ownership. This legislation can only be supported on account of its supposed promotion of the safety of the public and the employees of a public service corporation, and a distinction based on ownership is wholly untenable.
"The proper construction to place on the act, and that renders it valid, is: If the short line is in fact used as a continuous line with the main line, or in any other way as a part of it, and not as a separate line merely connecting with it, then it is a part of the line. But if it is a mere connecting line, separately operated — operated as an independent short line is operated — although owned by the company owning the larger line, then it would not be within the statute."
I think it is established, in the instant case, that this short branch line was a connecting line and operated separately from the main line operations though owned by the main line and was not within the statute. All switching operations were totally disconnected from appellant's main line by 28.74 miles of Frisco tracks. Appellant's income from said branch line is separately kept from the main line operations and the switching crew paid from the branch line income. The case of The Kansas City Southern Ry. Co. v. State, 194 Ark. 80,106 S.W.2d 163, referred to in the majority opinion is, I think, clearly distinguishable for the reason that the issue presented here was not raised in that case. *Page 915
The judgment should be reversed and the cause dismissed.
Mr. Justice FRANK G. SMITH concurs in this dissent.