
    QUO WARRANTO — RAILROADS
    [Holmes (5th) Circuit Court,
    November, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    State ex rel. Simpson, Pros. Atty. v. Pennsylvania Co. and Cleveland, A. & C. Ry. State ex rel. Simpson, Pros. Atty. v. Baltimore & O. Ry.
    1. Quo Warranto Instituted by Prosecuting Attorney to Oust Railway Relief Association.
    A prosecuting attorney may institute and prosecute an action in quo warranto to oust a railway relief association which it is alleged has been organized and is being conducted in violation ' of the laws of the state.
    
      2. Power of Legislature to Restrict Railway Relief Associations.
    Tlie general assembly has power to enact proper restrictions with reference to the character of relief associations which railway companies may maintain or assist in maintaining, and the requirement as to such relief associations contained in Sec. 3270 R. S. (Sec. 8746 G. C.), as amended (99 O.L. 71) is not violative of any constitutional provision.
    These actions were brought by the prosecuting attorney of Holmes county for the purpose of ousting certain railway relief associations organized and maintained by or under the control of the defendant companies. The allegations were that the employes of these companies, as a condition of their employment, are required to sign a contract which makes them members .of the relief association and contains the conditions of a policy of insurance, though the relief ássociations are not organized under the insurance laws or for the protection of said employes; and that said contract contains the provision that the employe signing it thereby waives any claim for damages on account of personal injuries or death, contrary to the provisions of See. 3270, R. S. (Sec. 8746 G. C.), or of the insurance laws of the state.
    
      David T. Simpson, Pros. Atty. and F. S. Monnett, for plaintiff.
    
      Cary & Mullins, for Pennsylvania Co.
    
      Allen, Waters, Young & Andress, for Cleveland, A. & C. Ry.
    
      Arrel, Wilson & Harrington and Geo. W. Sharp, for Baltimore & 0. Ry.
   TAGGART, J.

This cause was submitted to the court on motion of the Pennsylvania Company to require the plaintiff to make its amended petition more definite and certain in respects stated and set out in said motion.

We are of the opinion.'that this motion must be overruled, as the averments of the petition in our judgment are sufficient to maintain this action, in that the petition sets forth that the Pennsylvania Company has established and still maintains and has assisted in establishing and maintaining a certain relief association, or society, commonly called Voluntary Relief Association,, which require of its employes to enter into contracts, agreements or stipulations, which are contrary to the provisions of the statutes, provisions of See. 3270 R. S. (Sec. 8746 G. 0.), as amended April 7,1908, 99 O. L. 71, 72.

We think the petition with certainty and definiteness informs the defendant filing this motion what is asserted and claimed against it.

The motion may be overruled with exceptions and with leave to file a demurrer.

The Cleveland, A. & C. Ry. filed a demurrer to this amended petition. The grounds of the demurrer are:

1st. That the plaintiff has no legal capacity to sue.

In respect to this we think that the clear provisions of the statutes authorize the plaintiff as prosecuting attorney to institute and prosecute this character of cases.

It is further contended, as a second ground of demurrer, that the amended petition does not state facts sufficient to constitute a cause of action on the grounds that said See. 3270 R. S. as amended April 7, 1908, is unconstitutional and void.

We are of the opinion that it is entirely competent for the Legislature to place proper restriction upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the Constitution.

The third ground of demurrer is that there is a misjoinder of parties defendant.

The provisions of the statute are, that a railroad company may establish and maintain or assist in establishing relief associations, but they are not permitted to maintain or assist in maintaining relief associations having certain specific rales and regulations. It is averred in this petition that both of the defendants are engaged in maintaining such relief association's, and that there is such unity of action and consort of parties that would bring the case w’ithin the provisions of the amended section.

We are of the opinion that the demurrer to the amended petition should be overruled with exceptions. The defendants are given thirty days to answer herein, and the plaintiff thirty days thereafter to reply.

The same holding and judgment may be entered in the case of the State ex rel. v. Baltimore & Ohio Ry. And the same rule for answer made therein.

Donahue and Voorhees, JJ., concur.  