Bowen v. Missouri Pacific Railway Co., 118 Mo. 541

Bowen v. Missouri Pacific Railway Co.

118 Mo. 541 | Mo. | 1893

Lead Opinion

Black, P. J.

The plaintiff brought this action to recover damages for the death of her husband, who was a switchman in the employ of the defendant, at its yards in the town of Chamois. The substantial averments of the petition are, that defendant failed and neglected to have the space between a guard rail and a track rail blocked, by reason of which the foot of deceased was caught, causing injuries from which he died on the same day, that is to say, the twenty-fourth of March, 1891.

The petition is based on the act of the sixteenth of June, 1887, passed at the extra session of the general assembly of that year, entitled “an act to provide for the prevention of accidents to railroad employees and others, by requiring that switches, frogs and guard rails be properly blocked.” The act contains two sections, both of which were carried into the Revised Statutes of 1889, and appear there as sections 2627, 2628.

The validity of these sections is assailed by the defendant, and this presents the first and principal question in the ease. In Wells v. Railroad, 110 Mo. 286, we held the above mentioned act unconstitutional and, therefore, void, because the subject-matter of the act did not come within the subjects of legislation designated in the proclamation of the governor calling the special or extra session, at which it was enacted. It must be taken as now settled that the act was invalid as first passed, and this brings us to the revision of 1889.

According to the schedule of revised and unrevised bills, found in the second volume, at page 2229, chapter 42, which relates to corporations, was passed by way of a revised bill, and sections 2627 and 2628 are a part of the second article of that chapter. But a diligent examination of the statute rolls in the office of the *546secretary of state discloses the fact that article 2 was not passed by way of a revised bill. Indeed, the examination shows that sections 2627 and 2628 were not re-enacted at that session by way of a revised bill or otherwise. The two sections of the act were simply brought forward and placed in article 2 by the committee on revision, which was appointed to compile, arrange and publish the statutes after the adjournment of the general assembly. That committee had no legislative power conferred upon it, for the legislature could not and, indeed, did not attempt to delegate to it any such powers. The fact that the committee brought the said act forward and placed it in the Revised Statutes gave it no validity; and the two sections are void, just as they were when first enacted into the form of a law.

But the respondent insists that as those sections are now found incorporated into the published revised' statutes, they are prima facie valid and binding laws, and should be held valid here because the defendant did not produce any evidence in the trial court to overcome the prima facie proof. The defendant, out of abundance of caution, put in evidence the proclamation of the governor calling the extra session of the general assembly, thus showing the law to be invalidas first enacted. It, of course, remained a void law until re-enacted at some regular session. Now there is nothing in the Revised Statutes to distinguish the revised from the unrevised laws therein copied, save the schedule before mentioned, and that is no part of the statutes. It was placed there for convenient reference, and subserves that purpose, but it is there without any legislative authority, so far as we can see. There is, therefore, nothing in the Revised Statutes to show that those two sections were re-enacted.

But let it be conceded that the laws, as they are *547copied into the Revised Statutes, are prima facie valid and existing laws, still it does not follow that we must •stop with this evidence. It is a well settled rule that •courts of justice are bound to take judicial notice of ■public statutes enacted by the legislature of the state where the courts are held. Such statutes cannot “be •denied by a plea of nul tiel record; and the existence of • a public act is determined by the judges themselves, who, if there be any difficulty, are to make use of ancient copies, transcripts, books, pleadings, or any •other memorial, to inform themselves.” Sedgwick on Construction of Statutory and Constitutional Law [2 Ed.],p.26. Mr. Justice Miller concludes the opinion •of the court in Gardner v. Collector, 6 Wall. 499, with these words: “We are of opinion, therefore, on prin■ciple, as well as authority, that, .whenever a question arises in a court of law of the existence of a statute, or •of the time when a statute took effect, or of the precise terms of a statute, the judges, who are called upon to •decide it, have a right to resort to any source of information, which, in its nature, is capable of conveying to 'the judicial mind a clear and satisfactory answer to .such question; always seeking first for that which, in its nature, is most appropriate, unless the positive law has enacted a different rule.” So the court may inform itself of the true reading of an act by an examination of the original on file in the office of the secretary of state. Clare v. State, 5 Iowa, 509.

These authorities are sufficient to show that, when the existence of a public statute of this state becomes a •question before us, we are not confined to the statutes as they are published, but we may examine the rolls in the office of the secretary of state, and this, too, though /such rolls were not produced in evidence.

It is unnecessary to either plead or make proof of .•a public statute, for the courts must take judicial notice *548of them. The statute rolls in the office of the secretary of state are the primary and best evidence; and, as it appears from an' examination of them that the two. sections in question were not re-enacted, there is nothing left for us to do but declare them invalid,, void.

We are asked to reverse, the judgment without remanding the cause; but we think it should bn remanded to the end that the plaintiff may have an opportunity to amend her petition if advised so to do... The judgment is reversed and the cause remanded.

All concur; Barclay and Macearlane, JJ., in the result.

Concurrence Opinion

SEPARATE OPINION.

Barclay, J., and Macearlane, J.,

concur in reversing and remanding, in view of the fact that the validity of the statute, as part of the Revised Statutes of 1889,, was expressly raised in the trial court by the defendant, and hence becomes a legitimate matter for review here, in the exercise of appellate jurisdiction.