230 Mo. 496 | Mo. | 1910
Lead Opinion
Differences i|n opinion in Division resulted in the filing of two opinions therein, and in the transfer of the case to Banc. One member of the court having been of counsel in the trial court, only six of the judges sat in the case in Banc, and they dividing equally, a special judge was called in.
This is an action by plaintiff to recover damages from defendant for its violation of the short-haul rule in charging him greater amounts, i. e., higher rates per ton, for transportation of freight for certain distances over its railroad than it charged for transportation
Plaintiff owned and operated a coal mine at My-rick, Missouri, on the line of said railroad, and shipped his coal from there to various stations on said railroad in this state. The petition contained thirty-nine counts, covering a great amount of transportation from Myrick to different stations. In each count were stated the quantity in tons of coal transported, the station of destination, its distance from Myrick, the rate per ton .charged, the lower rate charged for coal of the same class from Myrick to another station at a greater distance from Myrick on defendant’s railroad in Missouri, and the total excess of the charges illegally made for all the coal transported.
In its answer to each count defendant admitted the allegations of fact in the petition as above stated, but it denied that the rate charged plaintiff was illegal for reasons stated. Those reasons were that the rate charged plaintiff had been fixed by the Board of Bail-road and Warehouse Commissioners, that the rate from Myrick to the more distant station had also been fixed by said board and had been made by defendant because of 'the fact that said station was a competitive point, which rendered the conditions and circumstances of the latter station dissimilar from those of the station to which plaintiff had shipped his coal, and prevented the difference between the two rates constituting discrimination.
The case was tried by the court without a jury.
Plaintiff submitted his case upon the pleadings.
Defendant asked the court to give a declaration of law to the effect that plaintiff was not entitled to a judgment upon the pleadings, and the court refused it.
Defendant offered printed and unauthenticated copies of the reports of the Board of Bailroad and Warehouse Commissioners in support of its answer.
Defendant offered to prove by its general freight agent the reason for the differences in rates complained of by the plaintiff, but the court refused to receive the evidence.
At the close of the evidence, the court gave a declaration of law for plaintiff to the effect that upon the pleadings and evidence the finding and judgment should be for plaintiff.
In accordance with said declaration of law the court rendered judgment for plaintiff on the various counts of the petition for the amount of the excessive charges respectively stated therein, but not for the statutory penalties sued for. The judgment was solely for said excessive charges, and aggregated $7,462.43.
On this appeal by defendant from that judgment, defendant does not urge as error the action of the trial court in rejecting the evidence offered as hereinbefore stated, but assuming that plaintiff’s action is entirely founded upon sections 1126 and 1160, Revised Statutes 1899, it seeks to reverse said judgment on the ground that said sections of the statute are invalid, because unconstitutional for various reasons assigned, and because repealed by a subsequent statute.
It is unnecessary at this place to further explain the nature of the objections urged against the validity of said sections; that will be done in the opinion.
Plaintiff’s counsel says that said objections were not made in the trial court, and contends that they cannot be made in this court for the first time.
No further statement is deemed necessary at this time.
I. It is, of course, true, as contended by plaintiff’s counsel, that an appellant cannot try a case on one theory in the trial court and upon another theory in the appellate court, and that, generally speaking,
■ But where plaintiff’s cause of action is founded upon a statute, the constitutionality and life of the statute' are involved from the start to the finish, because unless the statute has legal force and effect plaintiff has no cause of action, and defendant, at any time and in any court until the final end of the case, has the right to object that plaintiff’s petition does not state facts sufficient to constitute a cause of action for the reason that the statute upo’n which it is founded is unconstitutional or has been repealed. Defendant has the right to object for the first time in the appellate court that the petition does not state a cause of action, and it matters not what the ground of objection.may be, provided only that it be good and sufficient in law. [R. S. 1899, sec. 602; Andrews v. Lynch, 27 Mo. 167; Burns v. Patrick, 27 Mo. 434; Syme v. Steamboat, 28 Mo. 335; Weil v. Greene County, 69 Mo. 281; Wells v. Mutual Benefit, 126 Mo. 630; State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 177 Mo. 69', 92; Kaukauna Co. v. Green Bay Co., 142 IJ. S. 254.]
II. The first objection made to the validity of said sections of the statutes is that the act containing them was not passed in accordance with tne provision' of the Constitution then in' force in relation to the title of laws enacted by the Legislature.
Said sections of the Revised Statutes of 1899 were sections 1 and 4 of an act of the Legislature approved April 1, 1872, Laws 1871, p. 69. Section 1126 was section 1 of said act; section 1160’ was section 4.
At the time said act was passed the Constitution of 1865 was in force. Section 32, article 4, of said Constitution- provided: ‘ ‘ No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title. ’ ’
The title of said act was: “An act to prevent
Section 1 of said act (now sec. 1126, R. S. 1899), prohibited every railroad company in the State from doing three things: 1. From charging for the transportation of property for any distance over its road any larger amount as compensation, than is charged by it for the transportation of similar quantities of the same class of property over a greater distance over its road. 2. From charging different rates for receiving, handling or delivering freight at different points on its road, or any road used by it in connection therewith. 3. From charging.for the transportation of property over any portion of its road a greater amount as compensation, than shall be charged by it for the transportation of similar quantities of the same class of property over any other portion of its road of equal distance. -
Section 4 of said act (now sec. 1160, R. S. 1899),' merely prescribed a penalty for violating the provisions of the act, and need not be considered further in this connection.
The objection is that the body of the act, i..e., section 1 thereof, was broader than the title.
In support of that objection counsel argue that the title was aimed at unjust discrimination only, whereas the body of the act prohibited every discrimination, just, as well as unjust. They say that the title conceded that there might be just discrimination, but that the body of the act denied such concession. They say that the title was merely declaratory of the common law, which prohibits only unjust discrimination and tolerates just discrimination, while the body of thé act prohibited every discrimination without regard to whether it was just or unjust.
I do not think any of these arguments sound. The body of the act did not prohibit all discrimina
Counsel’s argument, therefore, that the title was declaratory of the common law, is that the title indicated that the act would not declare or define anything to be an unjust discrimination and prohibit it, but tliat the act would merely “prevent” such things as the courts might decide to be unjust discriminations. If such a thing was capable of accomplishment legally, I do not think that the title can be so construed. The title clearly indicated that the act would prohibit such things as might be declared therein to be unjust discriminations.
'If this last argument of counsel’s about the title being merely declaratory of the common law be correct, then, under said title, the act legally could probably have contained no provision whatever against ■discriminations between localities in the State, but its provisions legally would probably have been restrict
A contrary view seems to be expresed in C. & A. Railroad v. People, 67 Ill. 11, but the view of said authors appears to be sustained by Interstate Com. Com’n v. B. & O. Railroad, 145 U. S. 263, 275, supra, where it is said in part that prior to the enactment of the Interstate Commerce Act the principles of the common law demanded little more than that common carriers “ should carry ... in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable, ’ ’ and that ‘ ‘ it was even doubtful whether they were bound to make the same charges to all persons for the same service; though the weight of authority in this country was in favor of equality of charge to all persons for similar services.”
If, therefore, the contention of defendant’s counsel in this respect is' correct, and if the common law forbids only unjust discrimination between individuals, and not between localities at all, then logically it would follow, as stated above, that the word “ discrimination” in the title of said act referred only to discrimination between individuals, and that the act legally could not have prohibited any discrimination between localities.
■ Indeed this yiew.was suggested in one of the opinions in Division. It was suggested in said opinion
. The entire subject of discrimination by railroads is one of very recent growth. This is true of discrimination between individuals as well as of discrimination between localities. On account of the uncertainties and the insufficiencies of the common law upon the subject, many of the states have adopted and enacted laws, constitutional and statutory, prohibiting and regulating discriminations, both local and individual. It is said that in more than twenty-eight states local discrimination is now forbidden. [Beale & Wyman on Railroad Rate Regulation, sec. 1211.] It is entirely clear that courts, law-writers, legislatures and constitutional conventions speak of discrimination between localities in the same sense that they do of discrimination between persons. And I am entirely clear that the word “discrimination” in said title applied to local as well as individual discrimination, and included what is known as a short-haul regulation. •
The title was not declaratory of the common law.
It is, of course, not disputed that, under such a constitutional provision as that of the Constitution of 1865, the body of an act must not be broader than its title. As said by Judge Cooley, the title is the conclusive index to the legislative intent. And acordingly it has been held by this court that, under a title, “An Act to change the penalty for disturbances of the peace,” the Legislature could not make that a disturbance of the peace which was not previously such an offense. This case has been urged quite vigorously by defendant’s counsel in support of their contention. But there was nothing in the title of the Act of 1872 to indicate a purpose to merely provide penalties for discriminations. The words of the title, “An Act to prevent unjust discriminations,” etc., cannot be restricted to the mere imposition of penalties, but
The title was broad enough to include every unjust discrimination, whether unjust in law prior to the enactment or not, and broad enough to authorize the Legislature to declare unjust discriminations which previously had been tolerated under the law. The provisions of the act made the things prohibited unjust discriminations, and thus said provisions were fully covered by the title.
This must be true unless the words of the title be held to have intended to make the question as to whether á discrimination is unjust a judicial question, and to restrain the Legislature in said act from declaring any discrimination unjust. This is but another way of stating counsel’s contention hereinbefore already stated. There is nothing in the words of the title from' which such intention can be inferred.
In my opinion the body of the act in no sense can be said to be broader than its title. The title indeed is broader than the body of the act. The title applies to and includes every unjust discrimination, while the body of the act covers only three specified acts of unjust discrimination.
Said act, title and all, was substantially a copy of a statute of Illinois enacted in 1871. The only difference between the two was in the penalties imposed. The Illinois statute provided for a forfeiture of the franchises of the guilty railroad company, while our act did not. This difference is immaterial here.
The Supreme Court of Illinois in 1873, after our Act of 1872 had been enacted, decided that the Illinois statute was unconstitutional (C. & A. Railroad v. People, 67 Ill. 11), and that decision is urged as strong and persuasive, though not controlling authority, in
There is nothing in that case, in my opinion, opposed to the conclusion hereinbefore stated, that the title, “An Act to prevent unjust discrimination,” etc., is broad enough to include all thing’s which the Legislature may legally prohibit as unjust discrimination.
At the time of the passage of our Act of 1872, the Constitution then in force contained no provision limiting the power of the Legislature to prohibit dis- . crimination by railroads.
III. Defendant’s counsel next object that if the Act of 1872 was not unconstitutional as passed, it subsequently became unconstitutional upon the adoption of our present Constitution in 1875', for the reason that the provisions of said act are in conflict with certain provisions of said Constitution.
If said act is in conflict with, said Constitution, it became inoperative upon the adoption of the Constitution. Section 1 of the schedule which forms a part of that Constitution so provides.
The constitutional provisions referred to as the basis of said objection constitute section 14 of article 12 of our present Constitution, and read as follows:
“Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers. The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties.”
Those provisions were borrowed literally from the Illinois Constitution of 1870', and it was those pro
It is urged that we adopted the provisions with the construction that had been placed upon them. The general rule is that where one state borrows a constitutional provision from another state that had previously been construed by the courts of the latter state, such construction is presumed to have been adopted along with the provision. The reason for said rule is that if it were intended to exclude the. previous construction, the legal presumption is that the terms of the provision would be so changed as to effect that intention. [Com. v. Hartnett, 3 Gray (Mass.) 450; Pennock v. Dialogue, 2 Pet. (U. S.) 1; Hogg v. Emerson, 6 How. (U. S.) 483.] And if we had adopted those provisions of the Illinois Constitution alone without more, there would have been great force in the contention that the effect of it was to repeal the Act of 1872, although it”is apparent that the question even then would have been quite different from that which would have been presented had we first adopted said constitutional provisions, and afterwards enacted the Act of 1872. In the latter contingency, the presumption would have been very great that by adopting said constitutional provisions it was our - intention to prevent the enactment of such an act as the Act of 1872, and to prevent the Legislature from defining unjust discrimination, and to permit it to prevent only such discrimination as the courts might decide to be unjust. But the Act of 1872 was enacted before our adoption of said constitutional provisions and said act was within the power of our Legislature at the time of its enact
But we did not adopt those constitutional provisions alone. Not only did we adopt as a part of our present Constitution said provisions which annulled the Illinois statute, that had enacted the short-haul rule, but we also adopted the very gist of that statute, i. e., the short-haul rule itself, and wrote- that very rule into our Constitution, making it section 12 of article 12 thereof. Said section reads as follows:
“It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; b'-ut excursion and commutation tickets may be issued at special rates.”
That action was most significant. The Illinois court had decided in 18-73 that the Illinois statute prohibited all discrimination by railroad companies in the transportation of freight in any direction, the same or not; under any circumstances or conditions, similar or dissimilar; and whether just or unjust in the opinion of the courts. The convention that framed our Constitution of 1875, with that decision before it, took the gist of that statute and inserted it into our
Moreover, in 1873, Pennsylvania had adopted a new Constitution, a section of which prohibited undue or unreasonable discrimination in charges or facilities for the transportation of passengers or freight, and provided that “persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction, to any more distant station.” [Art. 17, sec. 3.] Two years afterwards when we framed our present Constitution, with the recent constitutions of both Illinois and Pennsylvania before us, we took the short-haul rule, but we worded it in our own way, following in a general way the Illinois statute, ignoring the limitations in the Pennsylvania Constitution restricting the rule to hauls in the same direction, and making it apply to hauls in the same or the opposite direction.
Since 1875 other states have adopted constitutions making a short-haul provision a part of them. Said states are Arkansas, California, Kentucky, Montana, Oklahoma, South Carolina, Virginia and Washington. In none of them is the short-haul rule stated so broadly or unconditionally as in our Constitution. In most of them the haul must be in the same direction, in some of them under the same or like conditions and circumstances, and in not a few of them some state commission is authorized to grant relief from the rule on a proper showing.
The language of our Constitution, so widely different from all the others in these respects, was not a mere accident, but indicates a- fixed and settled purpose and intention to establish a rigorous and unalter
The effect of making the short-haul rule a part of our Constitution was to exclude-the construction by the Illinois Supreme Court of the Illinois constiturtional provision borrowed by us.
The two sections of our Constitution should be read together in determining their meaning, their purpose and their effect. We should also consider the condition of the law at the time ,we adopted said Constitution. At that time the Constitution of 1865- was in force. That Constitution, as hereinbefore said, contained no restriction upon the power of the Legislature over discrimination in railroad rates, and, under that Constitution, said power was unlimited unless restricted in some manner by the Constitution of the United States. “The governments of the states possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions” of the states. The state constitutions are -not grants of power, but are restrictions on the powers which the state government would otherwise possess. [Munn v. Illinois, 94 U. S. 113; State v. Tower, 185 Mo. 79; Ex parte Roberts, 166 Mo. 207, 212; State ex rel. v. Sheppard, 192 Mo. 497, 506; Ex parte Berger, 193 Mo. 16.] The legislature of a staté possesses all legislative power except as restricted by the provisions of the Constitution of the United States or of the Constitution of the state. This fundamental rule of our state governments is declared by section 1 of article 4 of our present Constitution in the provision: “The legislative, power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives to be styled ‘The General Assembly of the State of Missouri.’ ”
In State v. Tower, 185 Mo. 79, this rule is stated,
The regulation of railroads is within the legislative power of the state. [Beale & Wyman on Railroad Rate Regulation, secs. 1301-1306; Munn v. Illinois, supra; C., B. & Q. Railroad v. Iowa, 94 U. S. 155; Peik v. Railroad, 94 U. S. 164.] It was in the exercise of that power that the Legislature passed the Act of 1872.
Sections 12 and 14 of said article of our Constitution when read together, as they should be, leave no doubt of the intention of its framers to adopt the short-haul rule, and to put it in operation in this State. Such intention, as hereinbefore stated, is clearly manifested in section 12, and there is nothing in section 14 indicating a contrary intention. The language of the latter section that is supposed to indicate a contrary intention is that which directs the Legislature to pass laws “to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs in this State.” It is argued that an implied rstriction arises from that language limiting the power of the Legislature to prevent only such discrimination as is unjust, that it could not have been intended to thus restrict the power of the Legislature in section 14, and in section 12 to have empowered the Legislature to enforce the short-haul rule not only where it is just to do so, but also where it is unjust to do so, and, therefore, that said implied restriction should be extended to section 12 and applied to' it as well as to section 14.
The implied restriction upon the power of the Legislature thus sought to be enforced, arises from language in section 14 which refers to discrimination generally, whereas the short-haul rule established by
The following statement of the established rule as to the controlling effect of a particular enactment over a general enactment, in the construction of statutes, fits this ease: “It is an old and familiar rule that where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.” [26 Ency. Law (2 Ed.), 629.] Generally “if two provisions are irreconcilably repugnant, the last in order of time and local position will be preferred,” but this general rule gives way where the first provision is particular and the last one is general. In such case an exception is made, and the particular intent prevails. [8 Cyc. 743.] In speaking of the effect that positive and explicit provisions have to deny an implication from subsequent words, Mr. Chief Justice Marshall said in Faw v. Marsteller, 2 Cranch (U. S.) 10: “In searching for the literal construction of an act it would seem, to be generally true that positive and explicit provisions, comprehending in terms a whole class of cases, are not to be restrained by applying to those cases an implication drawn from subsequent words unless that implication be very clear, necessary and irresistible.”
But no such implied restriction arises from the provisions of section 14.
The construction of the language of said provisions by the Illinois court was rejected by us, and rejected in toto, and those provisions should be construed in the light of the general rules that govern in the construction of constitutional provisions.
Constitutional limitations upon the legislative power may be made, it is true, either expressly or by implication, but the implication must at least be clear and strong and convincing (Danville v. Pace, 25 Gratt. 9; Whitlock v. Hawkins, 105 Va. 242, 248), if not absolutely necessary (Cooley’s Const. Lim. [6 Ed.] 201, 204).
If section 14 of article 12 be construed in the light of that rule, and of the fundamental rule that the provisions of a State Constitution are not grants of power, but limitations of power, there can be no serious doubt about its meaning.
That portion of said section that relates to the subject of discrimination reads as follows: “The General Assembly shall pass laws to . . . prevent unjust discriminations . . . in the rates of freight and passenger tariffs on. the different railroads in this State.”
Those words are a mandate to the Legislature to prevent unjust' discriminations in railroad rates, and are not a limitation upon its power to prevent such discriminations as it may deem proper to prohibit. A constitutional command to the Legislature to do one thing is not a denial of its power to do other things.
In Evers v. Hudson, 36 Mont. 135, it was held
In State v. Fountain, 69 Atl. 926 (Del. Gen’l Sess. 908), it is held that a constitutional requirement that certain questions shall be submitted by the Legislature to a vote of the people, is not a limitation upon the power of the Legislature to submit other questions to a vote of the people.
To the same effect is the separate concurring opinion of Justice Willard in Barto v. Himrod, 8 N. Y. (4 Seld.) 483, 493, in which he said: “And I do not mean to lay much stress upon the implication arising from the express provision to submit a law creating a debt to the people, and the silence of the Constitution in relation to submitting to the people other matters of legislation. The maxim, expressio unius est exclusio alterius, is more applicable to deeds and contracts than to a constitution, and requires great caution in its application in all cases.”
The Constitution of Pennsylvania provided: “The Legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the State, in such manner that the poor may be taught gratis.” An act of the Legislature establishing a school system was attacked on the ground that it violated that provision of the Constitution. In answer to the objection raised, Chief Justice Black, who wrote the opinion of the court, pointed out the fundamental difference between the Constitution of the United States and the constitutions of the states, i. e., that the former is a grant of powers, while the latter are limitations of power, and, after quoting the above section of the State Constitution, added: “It seems to
In Williams v. Mayor of Detroit, 2 Mich. 560, 563-564, the court held tbat though the maxims expressio unius est exclu-sio alterius and expressum facit cessare taciturn generally apply to tbe construction of all instruments and laws, there are certain laws to which tbe maxims cannot be strictly applied without doing-violence to tbe plain intent of tbe framers of tbe laws, and tbat tbis is especially true in tbe construction of state constitutions, owing to their character and objects, which tbe court explained at some length, and then, in effect, said tbat tbe imposition by tbe Constitution upon tbe Legislature of certain specific duties, limitations, restraints and regulations in certain' important particulars, binds tbe Legislature, of course, in those particulars, but tbat notwithstanding tbat, all other acts properly pertaining to the legislative power of the state are ivithin the competency of the legislative department, and binding upon the people.
Tbe maxims mentioned in tbe case last cited have been, by all who make it, counsel and members of tbis court, invoked as the chief support for tbe contention tbat said portion of section M limits tbe power of tbe Legislature. But those maxims are not rigid rules of unvarying and universal application; they are merely rules adopted for the construction of written words, and like all such rules, are intended to be used for tbe purpose of ascertaining tbe true meaning of tbe words, in order tbat tbe purpose intended may be accomplished, and should never’be permitted to be used to obscure tbat meaning or thwart tbat purpose. [Lexing
In 1 Story on the Constitution (4 Ed.), see. 448, in speaking of said maxims, Judge Story says: “These maxims, rightly understood and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text and the objects of the instrument. Thus it has been suggested that an affirmative provision in a particular case excludes the existence of the like provision in every other case, and a negative provision in a particular case admits the existence of the same thing in every other ease. Both of these deductions are, or rather may bq,. unfounded in solid reasoning. Thus it was objected to the Constitution that, having provided for the trial by jury in criminal casés, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt or reject it in
Lord Chancellor Campbell said in Saunders v. Evans, supra, that said maxims are not of universal application, but depend upon the intention of the parties as discoverable upon the face of the instrument or of the transaction.
Judge Parker said in the Constitutional Convention of Massachusetts of 1853, supra: “I do not understand the principle to be that the mention of one mode excludes all other modes which tvould have existed but for the mention of that mode.”
These authorities fully sustain my construction of the portion of said section 14 of the Constitution quoted above. That portion of said section was not intended as a grant of power to the Legislature to prevent discrimination in railroad rates, the Legislature already possessed that power; but the Legislature, with the single exception of the Act of 1872, had never exercised it, and that part of said section was adopted as a command to the Legislature to further exercise it, and to enact laws to prevent all unjust discriminations in such rates. The use of the word “unjust” was not made to limit the power of the Legislature in that regard, but to require the exercise of said poiuer. It was not intended by said word to de
On the other hand, if the Legislature should enact that any given discrimination might be practiced by the railroads except that prohibited by section, 12 of said article, such discrimination would be legal, and the courts could not declare it unlawful on the ground that it was unjust, and therefore prohibited by the provisions of said section 14.
It is suggested that the clause of said section 14 that requires the Legislature to pass laws establishing reasonable maximum rates for railroads is against the above conclusion, for the reason that said clause clearly was intended, not only to require such legislation, but also to limit the power of the Legislature in that regard to fixing rates that are reasonable, and to prohibit it from fixing rates that are below what are reasonable; and that if such limitation and prohibition were intended in relation to rates, like limitation and prohibition were intended as to discrimination, and that the Legislature cannot prevent just discrimination any more than it can prevent reasonable-rates.
I do not think that section 14 can be construed to limit or restrict the power of the Legislature in regard to rates. That section clearly was intended to-require the Legislature to fix such maximum rates for railroads as it might deem reasonable, and there was no intimation contained in said section that the rea
There are constitutional limitations upon the power of the Legislature to regulate rates, but they are not found in said section 14.
It is now firmly established that the provision of the Fourteenth Amendment to the Constitution of the United States that forbids the taking of private property without due process of law, prohibits the State from confiscating the use of the property of any public service corporation by fixing rates so low as to deprive such corporation of reasonable compensation for such use, and that the reasonableness of the compensation is a judicial question. [Chicago, etc., R. R. v. Minnesota, 134 U. S. 418; Chicago, etc., R. R. v. Well-man, 143 U. S., 339; Reagan v. Trust Co., 154 U. S. 362; St. Louis, etc., R. R. v. Gill, 156 U. S. 649 ; Covington Turnpike Co. v. Sandford, 164 U. S. 578; Smyth v. Ames, 169 U. S. 466; San Diego Land Co. v. National City, 174 U. S. 739 ; Cotting v. Stock Yards Co., 183 U. S. 79; Stanislaus County v. San Joaquin Co., 192 U. S. 201; Ex parte Young, 209 U. S. 123; Knoxville v. Knoxville Water Co., 212 U. S. 1; Willcox v. Consolidated Gas Co., 212 U. S. 19.]
In all of those cases the plenary power of the
A like restriction, of course, is imposed upon the power of the Legislature to establish rates by sections 20 and 21 of article 2 of our Constitution, which prohibit the taking of private property without just compensation, and section 30 of said article, which provides that no person shall be deprived of his property without due process of law. What has just been said about the restriction upon such power imposed by the Federal Constitution applies to those provisions of oúr
The constitutional limitations mentioned cannot be held to protect railroad companies in making any given discriminations prohibited by the Legislature, on the ground that they are just, unless it can be maintained that the refusal of the State to permit said discriminations is in effect the confiscation of the railroads or of the use thereof. It is perfectly clear that no such position can be maintained. It is not such confiscation for the State to establish and enforce a uniform and rigid rule of equality in rates between all individuals and localities, without exception and regardless of differences in conditions. Such a rule may be unwise, and may result in inconvenience and injustice, and may even destroy and prevent, in many instances, the equality sought to be enforced by the rule itself. But in no sense .is it the taking of the property of the railroads.
Therefore, if section 14 of said article of the Constitution stood alone, and not with section 12, I should hold that it created no limitation upon the legislative power of the State.
Mention, however, should be made of the case of W. U. Tel. Co. v. Pub. Co., 44 Neb. l. c. 335, wherein a constitutional provision similar to that of Illinois was given the same construction as that given by the Illinois court. The Nebraska court held that had there been no such provision in the Constitution of that State, the Legislature would have had power to prevent any discrimination, but that said provision, on the principle of the maxim, expressio wiius, etc., must be held to limit the power of the Legislature to the prevention of unjust discriminations, that is to say, to discriminations adjudged by the courts to be unjust.
Bnt the two sections must he construed together, and construed together there is no doubt about the matter, in my mind.
There is nothing in the opinion of Judge Napton in Sloan v. Pacific Railroad, 61 Mo. 24, inconsistent with any of the views expressed herein. There is not even a dictum contained in said opinion against any of these views; The only point decided in that case was that the railroad company had a valid contract authorizing it to regulate its rates until a fixed- date that had not yet arrived. What is supposed to be a dictum against the power of the Legislature to enact the Act of 1872 against railroads generally is the expression of Judge Napton: “The Act of 1872 undertakes to define the obligations of railroad companies and to declare that a charge for one distance, if it exceeds a charge for a longer one, is an unjust discrimination. It may be so; but whether it is or not, is a question for the courts to decide and not the Legislature. The Act of 1872 declares that such discrimination is an unjust one, without regard to any circumstances whatever.” That expression should not be read separate and apart from its context. The very next words of Judge Napton show that he meant to say that the common law rule declared by him in said expression, and not the Act of 1872, was in force as to the Pacific Railroad Company because of said contract. Continuing, Judge Napton said: “In other words, the Legislature, by this act, assumes a power which the charter had originally granted to the company, and which the Act of 1868 had continued to confide in the company for ten years after the passag’e of that act, and the -only question is whether the Act of 1868, under which this road is now held, is a valid act; for if it is, then primarily, the
I have not considered the policy of the Act of 1872. Because it must be axiomatic in every government existing under a written Constitution, that every rule clearly established by the Constitution ought to be enforced by the courts in its true spirit without regard to their opinion of the wisdom of the rule. The people make the Constitution. They alone can amend or repeal it, and the courts would interfere with the people’s prerogative were they by unfriendly construction to limit or hinder the enforcement of any constitutional rule according to its true spirit. Courts have
In Hills v. Chicago, 60 Ill. 86, 91, the court said: “When a particular act is inhibited by the clear and unambiguous language of the Constitution, the policy of such inhibition, or the inconvenience that may ensue from its enforcement, is a matter with which the court has no concern; its duty is simply to reverently recognize and faithfully enforce
IV. It is next insisted that the Act of 1872, and section 12 of article 12 of our Constitution, construed as above, are in conflict with article 5 and section 1 of article 14 of the amendments to the Constitution of the United States.
The Fifth Amendment relates only to acts of Congress, and'therefore is not in point.
Something was said in the preceding paragraph
In L. & N. Railroad v. Kentucky, 183 U. S. 503, the Supreme Court of the United States denied a like contention, and held that, in the absence of a valid agreement protecting it from interference on the part of the State in this regard (if indeed such an agreement could be made, which was not decided), a railroad company has no constitutional right to discriminate either between individuals or localities, and that the State has the constitutional power to prohibit absolutely all such discriminations. In small part the court said: “It is said that, while it is true that railroad companies receive their right to exist and to maintain their roads from the State, yet their ownership of such roads is property, and, as such, is protected from arbitrary interference by the State.' But though it be conceded that ownership in a railroad is property, it is property of a kind that is subject to the regulations prescribed by the State. . . . "What we now say is that a state corporation voluntarily formed cannot exempt itself from the control reserved to itself by the State by its Constitution, and that the plaintiff in error, if not protected by a valid contract, cannot successfully invoke the interposition of the Federal Courts, in respect to the long and short-haul clause in the State Constitution, on the ground simply that the railroad is property. Nor is there any foundation for the objection that the provision in question denies to the plaintiff in error the equal protection of the laws. The evil sought to be prevented was the use of
The court expressly denied that the doctrine established in a long line of its decisions, that a State cannot deprive a public service corporation of the use of its property under the guise of unreasonable rates, has any application to this objection. [183 U. S. 510-511.] It recognized the power of a state absolutely to prohibit all and every Hnd of discrimination, saying that the provision in the laws of Kentucky authorizing the exoneration of carriers from the operation of the law on certain conditions was ex gratia. [183 U. S. 515].
V. It is next objected that the Act of 1872 was repealed by the Act of 1887, and therefore that the former act is without force or effect, even if it was valid as passed, and- not afterwards invalid because violative of section 14, article 12 of our present Constitution.
This is the question upon which Court in Banc divided. I approached its consideration with diffidence on that account, but the conclusion reached, in my opin
In a former suit between these same parties it was decided in Division that the Act of 1872 was not repealed by the Act of 1887. [McGrew v. Railroad, 177 Mo. 533.] The correctness of that decision is now to be decided by the court.
The general rules that prevail in determining whether a given statute has been repealed by a later one upon the sanie subject have little to dó with the determination of the question here, for the reason that the act of 1887, contained a section declaring its purpose and effect as related to other laws then in force. Section 21 of said act is as follows: ‘ ‘ This act is not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws.”
Said section furnishes the sole and only test for determining whether the Act of 1872 was repealed by the act of 1887. There could be no repeal by implication in the face of .that express provision in the Act of 1887. There could be no repeal under any general rule for the construction of statutes in the face of the specific and particular rule established in said- act itself. There could be no repeal contrary to that declared intention of the Legislature. [Ex parte Yerger, 8 Wall. 85, 105 (opinion by Mr. Chief Justice Chase) ; Patterson v. Tatum, 3 Sawy. 164, 169-170 (opinion by Mr. Justice Field) ; People v. Harris, 123 N. Y. 70 (opinion by Chief Justice Ruger) ; Robinson v. Rippey, 111 Ind. 112 (opinion by Judge Elliott) ; 1 Lewis’s Sutherland, Stat. Cons. (2 Ed.), 272; 26 Ency. Law (2 Ed.), 733.]
' The question, therefore, is, are the two acts in direct conflict so that both cannot stand, or is it possible for them both to stand, and the later be treated as supplemental to the earlier?
The Act of 1887'was passed at an extra session of the Legislature called by Governor Marmaduke by a proclamation which thus stated the matters for action at such session.
“To provide the legislative enactments necessary or expedient to enforce and execute those laws and principles, with reference to railways and railroad companies, which the people themselves have enacted and declared in their Constitution.” [House Journal, Extra Sess., 1887, p. 3.]
When the Legislature met, May 11, 1887, the Governor communicated a special message, in which he elaborated the program indicated in his proclamation, but did not enlarge it. He spoke of the demands expressed by the people in the Constitution twelve years previously for legislation “affecting railroads as public highways, and railroad companies as common carriers;” he declared that those demands had been too long neglected, and, without making any specific mention of what said demands were, he referred the' Legislature to his recent biennial message for a statement of them.
In that message under the heading “Eailroads,” the Governor had called the particular attention of the Legislature to certain provisions of the Constitution in the following words:
“I call your particular attention to the following sections of article 12 of our Constitution: ‘Section 7, prohibiting corporations from engaging in other business than that expressly authorized in its charter,’ also,*541 section 8, fixing the conditions under which corporations may issue stock or bends, and prohibiting all fictitious increase of stock; also, and very especially, section 14, which declares railways to be public highways, and the companies operating them common carriers; it also directs the General Assembly to pass laws to correct abuses and to prevent unjust discrimination and extortion, and to fix maximum rates and charges and ‘enforce all such laws by adequate penalties;’ also section 17, which prohibits the consolidation of parallel or competing lines under one management; also, section 22, which prohibits the president and other officers of any railroad company being interested, directly or indirectly, in furnishing material or supplies to such company; also, section 24, which prohibits railroad and other transportation companies from granting free passes or tickets ‘to members of the General Assembly or members of the Board of Equalization, or any state or county or municipal officer. ’ ’ ’
It was in compliance with said proclamation and messages that the Legislature passed the Act of 1887, entitled, “An Act to Regulate Railroad Corporations.”
It is most significant that the Governor made no mention of section 12 of article 12 of the Constitution. He called attention to six other sections of said article, but said nothing about that section. He must have been familiar with that section, and he must have been familiar with the Act of 1872, whose provisions formed a part -of the Revised Statutes of 18791 (sec. 820). Having in mind the failure of the Legislature to carry out the injunctions imposed upon it by the. provisions of section 14 to enact certain legislation, he surely would have said something about the "legislation enjoined upon the Legislature by section 12 for the enforcement of its provisions, if-he had not thought that the Act of 1872 was a sufficient enforcement of them. Whatever may be the explanation, the significant fact
Another important fact to be borne in mind is, that the Governor’s entire 'effort was to secure omitted legislation, not to correct defective legislation already enacted. He sought new laws; not the repeal of existing* laws.
No intimation is intended that, under sáid proclamation and messages, the Legislature in special session could not have repealed the Act of 1872 had it deemed it proper so to do, in enacting the legislation which it had been called upon to enact; but the facts mentioned furnish strong argument in favor of the proposition that the Legislature, by the Act of 1887, did not intend to repeal the Act of 1872,-but did intend to make the former act supplemental to the latter.
The Act of 1887 was quite comprehensive. It contained 21 sections. And it covered all sorts of discrimination, including both discrimination against localities and against individuals.
It is manifest that said act, so far as it concerned discrimination against individuals, was not in conflict with the Act of 1872, which was wholly confined to local discriminations. As to all individual discriminations the Act of 1887 was supplemental to the Act of 1872. No argument seems necessary to establish this self-evident proposition.
All the local discriminations covered by -the Act of 1887 are discriminations under “like circumstances”' or “substantially similar circumstances and conditions.” The Act of 1872, as construed by everybody, ignores circumstances .and conditions, and prohibits the forbidden things, regardless of circumstances and conditions. The Act of 1887 has a short-haul section, but it is confined to hauls in the same direction under similar circumstances and conditions. [Laws 1887, sec. 4, p. 17; R. S. 1899, sec. 1134.] As hereinbefore
It is plain to me that there is no necessary conflict between the two acts in regard to the short-haul clause. Both acts can stand. It is, of course, plain that anything in this regard covered by the Act of 1887 is also covered by the Act of 1872, because a haul in the same direction and under similar circumstances and conditions, in the meaning of the former act, must be a haul in some direction and under some conditions, in', the meaning of the latter act. But that does not create conflict. Two laws do not conflict with each other simply because they ‘ ‘ establish the same right or provide redress for the same wrong,” and in such a case, “the person seeking to enforce the right or avenge the wrong may proceed on the law he chooses.” [Bishop’s Written Laws, see. 163d; Robinson v. Rippey, 111 Ind. 112.] In the case last cited Judge Elliott said, among other things: “The fact that both of the statutes are directed to the attainment of the same end does not warrant the conclusion that the later repeals the former. Statutes constructing two systems for the government of the same subject may both stand. [Beals v. Hale, 4 How. 37; Wood v. United States, 16 Pet. 342, 363;
The acts of 1872 and 1887 created two systems for preventing discrimination hy railroad companies. The system created hy the latter act contains some hut not all of the things contained in the system created hy the former act, and many other things. The systems are hy no means identical, and they do not conflict with each other.
What if a violation of the short-haul section of the Act of 1887 also violates the Act of 1872? The person injured by said violation can proceed under the Act of 1872, and the fact that the matter or thing complained of also constitutes a violation of the Act of 1887 will not prevent his recovery. Take the case at har. The allegations in every count of the petition show a violation of the Act of 1872 and not of the Act of 1887, for the reason that there is, except in one count, no allegation that the longer and shorter hauls were in the same direction, and in none of the counts is there any allegation that the hauls were under the same or like circumstances and conditions. Proof of said omitted fact would not have defeated plaintiff’s recovery. Such proof would have been essential to a recovery under the Act of 1887, hut such proof would not have prevented a recovery in the cáse at har, founded on the Act of 1872.
This is precisely the view taken of a similar situation by Mr. Justice Story in Wood v. United States, 16 Pet. 342, 363. The question there was whether certain sections of an act of Congress of 1830' and 1832 were repugnant to a certain section of the act of 1790. He said in part: “In truth, however, there is not the slightest repugnancy between these sections of the acts of 1830- and 1832, and the sixty-sixth section of the Act of 1799. The former apply only to cases where there has been an opening and examination of the packages imported, before they have passed from the cus
The fact that the penalties created by the two acts are different is immaterial. In order to enforce the penalties prescribed by the Act of 1887 for violating its short-haul section, it is necessary to allege and prove that the shorter and longer hauls were made in the same direction and under similar circumstances and conditions. Such allegations ■ and proof would not be needed to enforce the penalty prescribed by the Act of 1872, and in a proceeding to enforce the latter penalty it would be no defense to show the facts making the defendant liable to the other penalties. Just as in
This principle has been recognized by the Supreme Court of the United States in Beals v. Hale, 4 How. 37, 53. In that case the court referred to a number of cases cited in Coke, and added: “Among them' is one where an act of parliament made an offense punishable at the quarter sessions, and another passed making it punishable at the assizes, without any words of repeal. It was held that you may indict under either or at either court. [11 Coke 63.]”
For these reasons I think that McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533, was correctly decided.
There was an inaccuracy in the opinion in that case which, in my opinion, was not of controlling importance. Mention of it is now made because of the importance given to it during the discussion of the present case. It was stated that section 1126, Revised Statutes 1899, which was section 1 of the Act of 1872, was passed in obedience to the mandate of section 12 of article 12 of the Constitution. The statement was made as a “cogent reason” why the Act of 1872 was not repealed by the Act of 1887. The statement was, of course, erroneous, for the reason that the .Act of 1872 antedated the Constitution, but to my mind the error is of no importance. The important fact is, that the Act of 1872 was deemed, in a great measure, to be an enforcement of said section 12 of article-12 of the Constitution, and it was argued that for that reason its repeal was not probable.
YI. The petition was framed upon the Act of 1872, but in view of the fact that the trial court denied the penalties asked, and allowed only the difference between the higher rates charged plaintiff and the lower rates charged by defendant for the longer distances, the judgment could be sustained upon section 12 of article 12 of the Constitution, without the aid of the
For this reason it seems important to determine whether said section of the Constitution is self-enforcing.
Much has been said by courts and text-writers upon the question as to what constitutional provisions are and what are not self-enforcing or self-executing.. It is not'thought necessary to go into this subject with the purpose of endeavoring to state a rule that will reconcile all the authorities or that will determine ali cases that may hereafter arise.
It must be conceded by all that wherever the Constitution of a State establishes a rule creating a new right so that, had the right, as created by the Constitution, existed at common law, it could have been enforced by some common law action, then the constitutional provision is self-enforcing to the extent of authorizing its enforcement by an appropriate action at law. And it matters not that the Legislature might be able to supply other and better methods for protecting or enforcing said right, or even that the Legislature should be directed by the Constitution itself to pass suitable laws for enforcing the rule established by it. If the right be clearly created by the Constitution, it can be enforced in the courts without legislative action. The courts will find a remedy, and will
In Householder v. Kansas City, 83 Mo. 488, the question was as to the self-executing character of the following provision of our Constitution:
“Private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” [Const., art. 2, see. 21.]
The court was composed of Judges Hough, Henry, Norton, Ray and Sherwood. In an opinion by Judge Henry, concurred in by all, it was held that said provision is self-executing. It was said in the opinion that the clause relating to the ascertainment of compensation was intended to authorize the Legislature to prescribe an exclusive method of ascertaining the damages, under the limitations named, but that the failure of the Legislature to prescribe any method could not be permitted to deprive the owner of the property taken or damaged for public use of just compensation; that the first clause of said section gave him an unconditional right to such compensation; that the failure of the Legislature to prescribe a statutory method for the ascertainment of said compensation affected the remedy only and not the right; and that the owner of said property could maintain an action at'common law for the value of his property taken. This in accordance with the settled rule of law that there is and can be no such thing as a legal right without a remedy for its enforcement, which Judge Henry stated in these words: “Wherever a statute or the organic law creates a
In the previous case of St. Joseph School Board v. Patten, 62 Mo. 444, it was held in an opinion by Judge Napton, concurred in by Judges Sherwood and Hough, that our constitutional provision limiting the rate of taxation for school purposes, with the proviso that the rate might be increased in certain classes of school districts on the condition that a majority of the taxpayers voting at an election to be called to decide the question, vote for said increase, was self-executing, and that the failure of the Legislature to provide for an election on this question of such increase did not affect the self-executing character of said provision.
But in another prior case this court had rendered a decision out of line with the doctrine announced in the Householder case. In Fusz v. Spaunhorst, 67 Mo. 256, the question was whether the following provision of our Constitution was self-executing so as to make the officers of the bank liable under its provisions:
“It shall be a crime, the nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances; and any such officer, agent or manager shall be individually respon*550 sible for such deposits so received, and all such debts so created with, his assent.” [Art. 12, sec. 27.]
This court held in an opinion by Judge Sherwood, concurred in by Judges Napton, Hough, Norton and Henry, that the provision making the officers of the failing bank liable is not self-executing. The opinion was based largely upon the first part of the section, “‘It shall be a crime, the nature and punishment of which shall be prescribed by law,” etc., which, of course, was not self-executing, and it was argued that neither was it intended to make the civil part of the section self-executing. Groves v. Slaughter, 15 Pet. 449, was cited among other cases in support of the court’s «opinion. The Pusz case is no longer recognized as the law in this State, any more than is Groves y. Slaughter recognized as having been correctly decided.
In Cummings v. Winn, 89 Mo. 51, 56, Judge Henry .said that he had concurred in the opinion in Pusz v. Spaunhorst, but had become satisfied that said opinion was erroneous, citing the Householder case in support «of his present conviction. Speaking of the section of the 'Constitution involved in the Spaunhorst case, he said that the first clause declaring “it shall be a crime, the mature and punishment of which shall be prescribed by law,” etc., is clearly not self-executing, but that the last clause is. He added: “It declares the individual responsibility of the guilty officer — confers a right upon •the depositor, or creditor, to recover from such officer Ms debt or deposit. When the law gives a right but prescribes no remedy, any common law action may be resorted to, adapted to the case, and under our code there can be no difficulty as to the remedy. We have In this State ‘but one form of action for the enforcement or protection of private rights, and redress or prevention of private wrongs, which shall be denominated a civil action.’ [Sec. 3641, R. S. 1879.]”
In Sharp v. National Biscuit Company, 179 Mo. 553. it was held that the amendment to our Constitution
In State ex rel. v. Lesueur, 145 Mo. 322, it was held by a unanimous opinion by Court in Banc that the constitutional provision that “no corporation . . . shall be created or organized, . . . unless the persons named as corporators shall . . . pay into the State Treasury fifty dollars for the first fifty thousand dollars or less of capital stock” is self-executing.
Section 6 of article 12 of the Constitution, in relation to cumulative voting in corporations, has been assumed to be self-executing. Judge Gantt said in Gregg v. Granby Co., 164 Mo. l. c. 626, that said section granted the right to each shareholder to vote on the cumulative plan.
In State v. Warner, 165 Mo. 399, it was held that the provision of the Bill of Rights in our Constitution that “in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel,” is self-executing. In the opinion it was said, in part, that “whenever a constitutional right, such as is now under discussion, has no statute specially adapted to enforce it, by its own inherent potency, and leaning not on the adventitious aids of statutory regulation, it supplies the lack of statutory provisions and enforces itself.” [165 Mo. 414-415.]
In State v. Kyle, 166 Mo. 287 (in Banc), in an opinion by Judge Burgess, concurred in by all the other judges, it was held that the amendment to our Constitution, making indictment and information concurrent remedies in prosecutions for felonies, is self-executing. Judge Burgess said that there are a number of provisions in our Constitution that are self-executing, and that require no legislation to put them in operation, and that the test in all cases involving this question is,
In Evans v. McFarland, 186 Mo. 703, 727 (in Banc), it was held that the provision of our Constitution that fixed a maximum of indebtedness which any municipal or political corporation or subdivision of the State can incur, provided that such corporation or subdivision can assent to an increase on indebtedness beyond said maximum amount, but provided further that any such corporation or subdivision shall,before or at the time of giving such assent, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment thereof, etc., is self-executing. To a like effect is East St. Louis v. Amy, 120 U. S. 600.
The courts elsewhere in this country quite generally announce the same doctrine.
The Constitution of Maryland contained the following provision:
“The rate of interest in this State shall not exceed six per cent per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties, against usury.”
Mr. Chief Justice Taney held on the circuit that said provision was self-executing, and that a note bearing usurious interest was void in toto. [Dill v. Ellicott, Taney (U. S.) 233, 7 Fed. Cas. No. 3, 811.] Subsequently the Court of Appeals of Maryland decided that said provision was self-executing, but that it avoided only so much of the contract as provided for excessive-interest. [Bandel v. Isaac, 13 Md. 202.] Chief Justice Lb Grand said in small part: “The thing forbidden by the Constitution is the taking or demanding a higher rate of interest than six per cent: it is not forbidden to take or demand that or a lesser rate. The thing forbidden is the excess and nothing else, and that is-
A like provision of the Constitution of Texas has been held to be self-executing, and the view of Chief Justice Taney is there taken. [Watson v. Aiken, 55 Tex. 536; Hemphill v. Watson, 60 Tex. 679; Quinlan’s Estate v. Smye, 21 Tex. Civ. App. 156.]
In Hemphill v. Watson, supra, Chief Justice Willie said in part: “This provision is prohibitory in its nature and self-executing so far as to render all contracts of the kind denounced immediately illegal; and it left to the Legislature the only remaining duty of saying what penalties should be imposed upon offenders against this clause of the Constitution.”
A provision of the Constitution of Illinois that the recorder’s court of the city of Chicago should be continued and called the “Criminal Court of Cook County,” and should have jurisdiction in all criminal cases and quasi-criminal matters arising in the county of Cook, or which might be brought before it pursuant to law, was held to be selffenforcing. [People v. Bradley, 60 Ill. 390.].
So too was the provision of said Constitution that private property should not be taken or damaged for public use without just compensation, and that such compensation, when not made by the State, should be ascertained by a jury, and should be prescribed by law. [People ex rel. v. McRoberts, 62 Ill. 38.] In the course of the opinion in the case last cited, the court' quoted the words of the Constitution ‘ ‘ as shall be prescribed-by law,” discussed the words somewhat, and said: “The inhibition of any other mode of determin
“No county, city, township, school district or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness.” [Law v. People ex rel., 87 Ill. 385.].
In part it was said in the opinion by Mr. Justice Walker: “It has also been repeatedly held, and is regarded as settled doctrine, that all negative or prohibitory clauses of this character found in a constitution execute themselves, as legislative provisions, in the same or other language, prohibiting the incurring
A provision of the Constitution of Tennessee that * ‘ tbe Legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this State,” was held to- be itself a prohibition of lotteries. [Bass v. Nashville, Meigs 421.]
In Mallon v. Hyde, 76 Fed. 388, it was held that the provision of the Constitution of Washington, making individually liable an officer of a bank receiving deposits after he has knowledge of the bank’s insolvency, is self-executing. And to the same effect is Rice v. Howard, 69 Pacific 77 (Cal.), in relation to a like provision of the Constitution of California.
The double liability of stockholders of corporations established by constitutional provisions is also held en-forcible without legislative enactment in aid of such provisions.
In State v. Woodward, 89 Ind. 110, the court held that the following provision of the Constitution of that State was self-enforcing: “No lottery shall be authorized, nor shall the sale of lottery tickets be allowed.” In part the court said: “We are of opinion that the provision is not a mere check upon future legislation, but an absolute prohibition of lotteries and the sale of lottery tickets. It is so far self-executing as to take away any right or authority that might theretofore have existed to conduct lotteries or sell lottery tickets. Its evident meaning is that from the time of the adoption of the Constitution there should, be no authority for conducting lotteries, nor should lottery tickets be sold. It needed legislation, to be sure, to make the conducting of lotteries or the selling of lottery tickets a crime with a prescribed punishment, but the provision effectually took away any authority that might have previously existed to do those things. See Cooley’s Const. Lim., [4th Ed.] pp. 99 to 102, and notes; also
The great case on this subject is Brien v. Williamson, 7 How. (Miss.) 14. The Constitution of Mississippi provided: “The introduction of slaves into this State as merchandise or for sale, shall be prohibited from and after the first day of May, eighteen hundred and thirty-three: Provided, that the actual settler or settlers shall not be prohibited from purchasing slaves in any State of this Unión, and bringing them into this State for their own individual use, until the year eighteen hundred and forty-five. ’ ’ The Supreme Court of that State held said provision of the Constitution to be self-executing, and to be a prohibition of the traffic described, and that a note given in part payment for a negro imported by the payee in violation of said provision was void. The court that decided that case consisted of William L. Sharkey, Chief Justice, and Edward Turner and Alex M. Clayton, Associate Justices. Mr. Chief Justice Sharkey wrote the opinion, in the course of which he said in part: “We hold the contract void on either of two grounds. First, that the provision in the Constitution of 1832 does per se prohibit the introduction of slaves into this state as merchandise or for sale. . . In support of our first position it is prope'r that we should inquire in the outset what a Constitution is, and how it operates. It is a form of government established by the people, designated for their general welfare as a society and as individuals. In the language of a learned jurist, ‘it was made by the people, made for the people, and is responsible to the people. ’ It is but the frame and skeleton of a government, containing the general outline, leaving the detail to be filled up in subordination and auxiliary to the essential and fundamental principles thereby established. But it is not on that account the less binding. It is from its very nature and object the supreme law of the land, fixed and unalterable, except
The Mississippi Court had taken the same view of the law in previous cases, but the Supreme Court of the United States had declined to follow the State court in the construction of the State Constitution. [Groves v. Slaughter, 15 Pet. 449.] Mr. Chief Justice Sharkey’s opinion was written, in effect, in answer to the Supreme Court of the United States. G-roves v. Slaughter was decided by a divided court, and the several opinions written therein show clearly that the judgment of the court was the result of the exigencies of the slavery question and to avoid the decision of grave Federal questions.
Mr. Chief Justice Sharkey’s opinion was followed subsequently in cases affected by said provision of the Constitution of Mississippi, in Tennessee (Yerger v. Rains, 4 Humph. 259), and in Arkansas (Moore v. Clopton, 22 Ark. 125, 128), and its correctness, now after the slavery question has passed away forever, is, I believe, tacitly accepted by even the courts of the United States.
In Illinois Cent. Railroad v. Ihlenberg, 75 Fed. 873, in an opinion by Judge Taet, it was held that a clause of the Constitution of Mississippi which provided that any knowledge by an injured employee of the defective or unsafe condition of machinery should
And in Davis v. Burke, 179 U. S. 399, which was an appeal from an order denying a writ of habeas corpus to appellant who had been found guilty of murder in the first degree, appellant objected to conviction on the ground, among others, that he had been illegally prosecuted by information, (1) because the constitutional provision of Idaho which in terms permitted prosecution by information was not self-enforcing, and (2) that the statute of that State, known as the Information Act, was void, because not passed in the manner required by said Constitution. The court held that said constitutional provision was self-enforcing. Mr. Justice Brown wrote the opinion of the court. He said in part: “Where a constitutional provision is complete in itself it needs no further legislation to put it in force. ... In other words, it is self-executing only as far as it is susceptible of execution. But where a Constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provisions. In short, if complete in itself, it executes itself. When a constitution declares that felonies may be prosecuted by information after a commitment by a magistrate, we understand exactly what is meant, since informations for the prosecution of minor offenses are said by Blackstone to be as old as the common law itself, and a proceeding before magistrates for the apprehension and commitment of persons charged with crime has been the usual method of procedure since the adoption of the. Constitution, It is true the Legislature may see fit to prescribe in detail the method of procedure, and the law enacted by it may turn out to be defective by reason of irregularity in its passage. In such case a proceeding by information might be impeached in the State court for such irregularity, but it certainly would
In Central Iron Works v. Pennsylvania Railroad, 5 Pa. Dist. 247, in an opinion by Simonton, P. J., it was held that a provision of the Constitution of Pennsylvania was self-enforcing, that declared that “persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction, to any more distant station.” Judge Simonton said among other things: “There are undoubtedly many provisions in the Constitution which presuppose and require legislation to carry them into effect, but there are also many, efficient in themselves, which need no aid from legislation. Of these, art. 16, sec. 4, providing for cumulative voting for directors of corporations, is one. [Pierce v. Com., 104 Pa. St. 150.] Delivering the opinion of the court in this case, G-oedon, J., said, at p. 155': ‘But it is said this provision is but directory, and it cannot go into effect without legislative action directing the manner of its exercise. To this proposition we cannot assent. . . . The constitutional right is one that belongs solely and exclusively to the individual shareholder. . . . Legislative action is, therefore, uncalled for. . . . With the right itself, the Ceneral Assembly cannot meddle.’ So, here, the right conserved by the Constitution belongs to each individual shipper, and the ordinary process of the courts is ample for its enforcement. There is, .therefore, no necessity for legislative action.” In further part Judge Simonton said: “Nothing could be added to this [constitutional provision] by an act of the Legislature which would render it more clear or definite, and, as was said in Pierce v. Com., supra, it would not
Section 12 of article 12 of our Constitution clearly establishes an unconditional short-haul rule, without regard to direction or to circumstances and conditions. Said section declares that it shall be unlawful for any railroad company to charge for the transportation of freight or passengers a greater amount for a less distance than “the amount charged for any greater distance.” That declaration establishes a rule, and creates a right in every passenger and shipper to a compliance with, and an obedience to its terms. The direction to the Legislature that it pass suitable laws to enforce the rule established, contained in said section, did not suspend the rule or right of passengers and shippers to a compliance with its terms, until the Legislature should comply with said direction and pass such laws. Said section has the same force and effect as if it read: “It shall not be lawful in this State for any railroad company to charge■, under penalties which the General Assembly shall prescribe, for freight or passengers a greater amount for the transportation of the
Something was said in argument about said section being too vag*ue and uncertain to be self-executing. But this argument is untenable. Said section is not identical with the Act of 1872. The former includes both freight and passengers, while the latter applies only to freight; the former applies only to hauls for a greater distance, while the latter includes hauls both for a greater and the same distance; and the former applies only to the short-haul rule, while the latter includes both that rule and a provision requiring equality of rates for “receiving, handling or delivering freight at different points” on the same road. All these differences are immaterial so far as concerns the point under discussion. The words of the section of the Constitution and of the Act of 1872 in defining the greater haul are identical. Nothing is said in either indicating direction or condition and circumstances. The act has been uniformly construed, in this State and in Illinois, to mean any direction, and any and all circumstances and conditions, and therefore, if the Act of 1872 is sufficiently explicit, so too is the section of the Constitution.
In my opinion plaintiff’s judgment can be sustained upon said provision of our Constitution, without the aid of the Act of 1872.
The judgment is affirmed.
Dissenting Opinion
DISSENTING OPINION.
The respondent instituted this suit in the circuit court of Lafayette county to recover $7,462.43, overcharges and penalties alleged to be due
There was a trial before the court, without the intervention of a jury, which resulted in a judgment for the respondent for the amount sued for, and the appellant duly prosecuted its appeal to this court.
The facts are undisputed, and are substantially as. follows:
The respondent is a coal miner and shipper at Myriek, Missouri; and appellant is a railroad corporation, duly organized and incorporated under the laws of this-State; Myriek and the other towns mentioned are located along the line of said railroad; respondent made-divers shipments of coal over said road to the said1 various towns. The suit is to recover overcharges and; penalties for the alleged violation of sections 1126 and! 1160, Eevised Statutes 1899, prohibiting railroads from; exacting a higher toll for carrying freight from one-point to another in the State than they charge for the same class and quantity of freight carried a greater distance. The appellant collected of respondent certain sums in excess per ton for said shipments than it. .did for the same class and quantity of coal shipped for longer distances, aggregating the sum sued for.
At the close of the testimony counsel for the- plaintiff prayed the court to grant this instruction on the. part of the plaintiff: “The court declares the law to be that-upon the pleadings and the evidence herein the-finding and judgment must be for the plaintiff,’’which-was by the court given. To the giving of which instruction on the part of the plaintiff, the defendant by its* counsel then and there duly excepted.
The respondent bases his cause of action upon sections 1126 and 1160, Eevised Statutes 1899, which are; as follows:
*564 “See. 1126. No railroad corporation organized or doing business in this State, under any act of incorporation or general law of this State now in force, or which may be hereafter enacted, shall directly or indirectly charge or collect for the transportation of goods, merchandise, or property on its said road for any distance, any larger or greater amount as toll or compensation, than is charged or collected for the transportation of similar quantities of the same class of goods, merchandise or property over a greater dis-' tance upon the same road, nor shall such corporation charge different rates for receiving, handling or delivering freight at different points on its road or roads connected therewith, which it has a right to use, nor shall any such railroad corporation charge or collect, for the transportation of goods, merchandise or property over any portion of its road, a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance; and ail such rules, regulations or by-laws of any railroad corporation, as fix, prescribe, or establish any greater toll or compensation than is hereinbefore prescribed, are hereby declared to be void.
“Section 1160. Any railroad corporation which shall fix, demand, take or receive, from any person or persons, any greater toll or compensation for the transportation, receipt, handling or delivery of goods or merchandise, in violation of the- provisions of «this article, shall forfeit and pay for any such offense any sum not exceeding one thousand dollars, and costs of suit, including a reasonable attorney’s fee, to be taxed by any court where the same is heard by appeal or otherwise, to be recovered by civil action by the party aggrieved, in any court having jurisdiction thereof; and any officer, agent or employee of any such railroad corporation who shall knowingly or wil*565 fully violate the provisions of this article shall be liable to the penalties prescribed in this section.”
It will throw some light upon the legal'propositions involved in this suit if we will bear in mind the history of this legislation. The two sections above quoted were originally enacted in 1872, and were sections 1 and 4 of that act [Laws of 1871, pp. 67 and 70]. Without alteration they were brought forward and incorporated in the Eevised Statutes of 1879, and are therein numbered sections 820 and 822, respectively. They were again brought forward without any change into the Eevised Statutes of 1889, and are sections 2629 and 2663, and were in like manner brought forward into the Eevised Statutes of 1899, and are now sections 1126 and 1160. Briefly stated, sections 1 and 4 of the Act of 1872 have been brought forward through all the revisions of the statutes without change down to and including the revision of 1899, and are numbered therein sections 1126 and 1160.
The appellant assails the constitutionality of those statutes for the reason that they were not enacted in accordance with the requirements of section 32, article 4, of the Constitution of 1865. That section reads as follows: “No law enacted by the General Assembly shall relate to more than one subject, 'and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed.”
The title to the Act of 1872 is as follows: “An Act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.”
The appellant contends that the title of the act is ■directed against unjust discriminations, while the act itself prohibits all discriminations iuhether just or unjust. The appellant insists that if the validity of that act is tested by the constitutional provision before quoted, then that portion of the act which prohibits all
The title of the Act of 1872 does not purport to prohibit all discrimination in the transportation of freight, but in express terms directs its inhibition against unjust discrimination only. The principle of eospressio unius est exclusio alterius applies here, and there is no possible escape from the conclusion that all discrimination is not embraced in the title of the Act of 1872. Having shown' that the title of the act in question does not prohibit all discrimination- by railroads in the shipment of freight, it would seem to be useless to cite authorities to sustain the proposition that such portion of the act which attempts to do so, is in the language of the Constitution, ‘void’ and inoperative; but since the majority of the court entertain different views regarding the legal questions involved in this case, I feel called upon to fortify each and every proposition that I shall present herein with an abundance of authority.
In consideration of that provision of the Constitution, this court in the case of St. Louis v. Weitzel, 130 Mo. l. c. 616, used the following language: “The evident object of the provision of the organic law relative to the title of an act was to have the title, like' a guide board, indicate the general contents of the bill, -and contain but one general subject which might be 'expressed in a few or a greater number of words. If those words only constitute one general subject, if they do not mislead as to what the bill contains; if they are inot designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”
That great constitutional lawyer, Chief Justice Cooley, in treating this same question, in his valuable work on Constitutional Limitations, at page 2Ó5 {7 Ed.), used this language: “It may therefore be as-
This same question came before this court again in the case of State v. Persinger, 76 Mo. 346, and on page 347, this language is used: “We are of the opinion that the motion to quash was properly sustained for the reason that the said act was entitled, ‘An act to change the penalty for disturbances of the peace.’ This title only authorized the passage of an act chang
The Act of 1872, now under consideration, is a verbatim copy of an act passed by the Legislature of Illinois in 1871. At the time of its enactment that state had a similar constitutional provision to ours, and is as follows: “The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate penalties, to the extent, if necessary for .that purpose, of their property and franchises.” [Sec. 15, art. II, Constitution of Illinois.] In obedience to that constitutional command, the Legislature of that state passed the act of which the one in question is an exact copy, and the title of that was as follows: “To prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.” The question we now have before us came before the Supreme Court of Illinois in the case of the Chicago & Alton Railroad Co. v. People ex rel., 67 Ill. 11, and in passing upon the constitutionality of
When we consider that the Supreme Court of Illinois has held the act of which ours is a copy to be unconstitutional, and the fact that said opinion is in harmony with the many decisions of this court, involving similar statutes and constitutional provisions, and fortified and reinforced as they are by Chief Justice Cooley’s great work, it seems to me that there is no logical escape from the conclusion that the Act of 1872, in so far as it prohibited all discriminations made by a railroad in the transportation of freight, was unconstitutional and void. These views are supported by the following cases from this court: State ex rel. v. Lafayette County, 41 Mo. 39; State v. Great Western Coffee Co., 171 Mo. 634; Kansas City v. Payne, 71 Mo. 159; State ex rel. v. Baker, 129 Mo. 482; Witzmann v. Railroad, 131 Mo. 612; Shively v. Lankford, 174 Mo. 535; Dart v. Bagley, 110 Mo. 42; In re Hauck, 70 Mich. 396; Callaghan v. Judge of Superior Court, 59 Mich. 610; 26 Am. and Eng. Ency. Law (2 Ed.), pp. 579, 590.
It should be borne in mind that the Constitution of 1865 was perfectly silent upon the questions involved in this- litigation, nor was there any legislation upon those matters until the Act of 1872 was passed. All freight and passenger traffic over railroads prior to that time was governed by the common law, which allowed common carriers to make reasonable and just discriminations in the transportation of freight and passengers. [4 Elliott on Railroads, secs. 1467, 1565 and 1676; 17 Am. and Eng. Ency Law (2 Ed.), p. 135; 2 Hutchinson on Carriers (3 Ed.), secs. 521, 588 and 589; Railroad Commission v. Weld, 96 Tex. 394.]
Now the body of the Act of 1872 did not say a word about just or unjust discrimination in the transportation of freight; nor is there any language contained in the act which prohibits either just or unjust discrimination, but left the shipper and carrier in that regard just where the common law placed them, with the exception as to short or long hauls. Section 1 of the Act of 1872 only prohibited railroad companies from charging more for a short haul than for a’ long one, along all portions of their lines, and has no refer
The first constitutional provision adopted by this State upon this question is section 12 of article 12 of the Constitution of 1875, which reads as follows: “Sec. 12. It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; but excursion and commutation tickets may be issued at special rates.”
Clearly, this provision is fashioned after the Act of 1872, and was laying one of the two corner stones upon which the Legislature was commanded to base a system of laws, which would “correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State. ’ ’ But taken by itself, this section of the Constitution is not so comprehensive in its provisions, commands and injunctives as were those of the Act of 1872. Neither that section nor that act prohibits discriminations in the transportation of freight and passengers, but were for the purpose of preventing railroads from charging more for a short haul than they charged for a long haul, which applied to everyone without discrimination, and if it was not for section 14 of the same article, I suppose it would hot be seriously contended that a railroad company would not have a perfect legal right, barring the common law rule, to discriminate in fav.or of one person against another, in furnishing cars and in receiving and de
“Sec. 14. Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers. The General'Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties. ’ ’
When we consider sections 12 and 14 together, which we must do in order to get at the intention of the framers of the Constitution, it is clearly seen that it was their intention to have the Legislature pass such laws as would not only prevent railroad companies from discriminating in furnishing cars, receiving and delivering freight, but also to prevent all unjust and unreasonable discriminations among shippers in the short1 and long hauls; but neither of said sections, nor both construed together, were intended to prevent just and reasonable discriminations within the limitatious of those sections and laws thereafter to be enacted in pursuance thereof. If it had been the
The Constitution by commanding the Legislature to pass suitable lawrs to correct the abuses and
The Constitution commanded the Legislature to enact such laws as would carry into,effect those provisions, and in obedience to that mandate, and within the limitations prescribed, it attempted to enact such legislation as would prevent the collection of extortionate rates and from making unjust and unreasonable discriminations by fixing maximum rates; and in order to carry into effect- those rates the Legislature also created the Board of Railroad and Warehouse Commissioners with power to regulate, fix and publish schedules of tolls to be charged for transpor
Now, if our interpretation of the Act of 1872 is sound, and if viewed in the light of said constitutional provisions 12 and 14, then we are unable to see how it can be contended that said act either prohibits just or unjust discrimination, or that if that had been the intention of the Legislature, then it would have been invalid under those constitutional provisions, after their adoption. In brevity, I do not believe it was the intention of.the Legislature, by the Act of 1872, to prohibit either just or unjust discrimination in the transportation of freight over railroads, for the reason that there is nothing in the body of the act which refers even remotely to that subject; but conceding, for argument’s sake, that such was the intention of the Legislature, then, in my opinion, it was abrogated and annulled by the adoption of the Constitution of 1875. That being true, the act is void, first, because the title of the act refers to one subject, namely, “unjust discriminations,” while the body of the act refers to an entirely different subject, to-wit, the short and long haul, which is a clear departure from the title of the •bill, and for that reason it is obviously unconstitutional and void, because the subject of the act is not expressed in the title thereof, as commanded by section 32 of article 4 of the Constitution of 1865, and, second, because even if valid when enacted, it was repealed and annulled by the adoption of the Constitution of 1875.
III. Aside from the foregoing observations regarding the interpretation and invalidity of the Act of 1872 in the light of sections 12 and 14 of the Constitution, those sections themselves demand a most careful consideration at the hands of this court.
This brings us to the consideration of whether there is a conflict, or seeming conflict, between those sections of the Constitution, and if so, what is the duty of this court in the premises'!
Section 12 makes it unlawful for a railroad company to charge a greater amount “for a less distance than the amount charged for a greater distance;” and section 14 makes it the duty of the General Assembly “to pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State.”
. It is to be regretted that the proceedings of the Constitutional Convention of 1875 have never been
On the face of the two sections there appears to be a seeming irreconcilable conflict. If section 12 is literally construed, it might be held to. mean that all discriminations, as to the long and short haul, just as well as unjust, under all circumstances and conditions, are intended to be prohibited; in other words, to be a constitutional enactment similar to the Act of 1872. While on the other hand section 14 required the General Assembly to pass laws to correct abuses and prevent unjust discrimination.
If the framers of the Constitution had intended by section 12 to prohibit all species of discrimination, then section .14, requiring the General Assembly to pass laws to prevent unjust discrimination, was not •only a work of supererogation, as before suggested, but also created a manifest incongruity in the organic law. For it could not be true that the lawmakers intended by section 12 to prohibit absolutely all discriminations, and yet by section 14 to authorize the General Assembly to pass laws that would simply prevent unjust discrimination. And the framers of that Constitution must have had in mind not only the Act of 1872, but the decision of Napton, J., in Sloan -v. Railroad, 61 Mo. 31, holding’ that it was lawful for a carrier to make just discriminations where the circumstances and conditions were not the same. And likewise to have known that the Supreme Court of Illinois had recently decided that the Illinois statute, from
But whatever may have been the reason that actuated the members of the Constitutional Convention, the result is that there is an incongruity, an irreconcilable inconsistency, between sections 12 and 14 of article 12 of the Constitution, and there is nothing that can now be done except either to hold that the one cuts the throat of the other, and, therefore, the Constitution itself is a felo de se (O’Brien v. Transit Co., 212 Mo. l. c. 66, and cases cited), and neither obtains, or else have this court to reconcile the two. The two can only be reconciled by holding that prohibitions of section 12 are explained, "modified and made consonant with the common law by the provisions of section 14. In other words, that the lawmakers explained in section 14 that by section 12 they only intended to prohibit unjust discrimination, and that what is an unjust discrimination is a question for the Legislature. This is'perfectly obvious, for the reason that the very same section of the Constitution provides that the Legislature shall “pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger ■ traffic.” Why the latter provision, if section 12 was absolute and self-enforcing, as has been suggested? This idea is strengthened by the fact that section 12 itself also provides that the Legislature shall pass suitable laws to enforce its provisions, thereby showing the intention of the framers of the Constitution to delegate to the Legislature the power to reconcile the apparent conflict that exists between the two sections by enacting statutes which would avoid all extortion and unjust discrimination on the part of railroads, and at the same time protect the interests of the public and the roads themselves by permitting them to make just and reasonable discriminations under the sanction and
We conclude, therefore, that when sections 12 and 14 of the Constitution are construed together, it must necessarily be held that the framers of the Constitution did not intend to create any incongruity in the ‘organic law, or intend to prohibit all discriminations in one breath, and only to prohibit unjust discriminations in the next, but that the intelligent lawyers and judges that composed the Constitutional Convention of 1875 knew the prior state of the law, and intended only to legislate against, or provide against, unjust discrimination. Unless this be true, then we must convict those able gentlemen of a most lamentable mistake, and unless this be true, then sections 12 and 14 destroy and nullify each other.
But it has been suggested that in this case the judgment below can be sustained whether the Act of 1872 was repealed by the Act of 1887, or was substituted by the Act of 1887, or not, because section 12 of article 12 of the Constitution is self-enforcing, and any appropriate common law remedy can be invoked to enforce it, and no legislative aid is necessary. This view cannot be maintained, and at the same time give any possible effect to section 14 of article 12 of the
The questions here presented for consideration and determination are not foreclosed by the decision •of the Supreme Court of the United States in Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503. These- questions and these complications and contradictions between the acts of 1872 and 1887, and the provisions of section 12 and 14 of article 12 of the Constitution, were not present in that case. The Fourteenth Amendment to the Constitution of the United States guarantees to every person due process of law, and no case can be found decided by the Supreme Court of the United States, and certainly not the case of Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503, that holds that a person can be convicted of a crime for doing an act such as is prohibited by the Act of 1872 and by section 12 of article 12 of the Constitution, and at the same time not be guilty under the provisions of the Act of 1887 and under section 14 of
IV. Having decided in paragraphs one and two-of this opinion that the Act of 1872 is unconstitutional and void, and also by the latter that said sections 12 and 14 of the Constitution are not self-enforcing, we will now determine whether or not there are any valid laws in force which give efficiency to those sections.
Respondent bases his right of recovery upon sections 1126 and 1160' of Revised Statutes of 1899', and. contends that they put in operation those sections of the Constitution, and that they are in full force and effect; while upon the other hand appellant retorts by saying that said sections, which are sections 1 and 4 of the Act of 1872, brought forward and copied without; change in the various revisions of the statutes front the time of their passage down to and including the-Revised Statutes of 1899, and are there numbered as-sections 1126 and 1160, are unconstitutional and void 5,
If we correctly understand learned counsel for respondent, he does not seriously contend that the Act of 1872 when enacted was constitutional and valid, but contends that sections one and four thereof, which are sections 1126 and 1160' of the Revised Statutes of 1899, were re-enacted by an Act of 1879 revising* and amending chapters 63, 61, 65 and 66 of the General Statutes of 1865, and by incorporating therein the entire Act of 1872 and passing the whole as an amended and revised bill.
The opinion of 'Valliant, P. J., sustains this contention of respondent by'holding that “the General Assembly of 1879 passed an act entitled £An Act to revise and amend chapters 63, 61, 65 and 66 of the General Statutes of Missouri concerning corporations,’ approved May 31, 1879, in which the sections we are now considering were included. Chapter 63 of the General Statutes of 1865 was one of the chapters so revised and amended and was entitled, 1 Of Railroad Companies.’"This section was germane to the subject of the chapter and was an amendment to it. The section does not rest therefore on the mere act of the legislative committee carrying it forward as in the case cited.- [Brannock v. Railroad, 200 Mo. l. c. 568.] ”
I have two criticisms to suggest regarding that clause of the opinion of my learned associate. First, that while section 1 of the Act of 1872 was properly reenacted in 1879 and is now section 1126 Revised Statutes 1899, and upon which this suit is based, it was repealed by an Act of 1887. Second, that said sections 12 and 11 of the Constitution are not self-enforcing, and there is no statute or common law in force which prohibits reasonable and just discrimination by railroad companies in the transportation of freight and passengers over their roads under the direction and ap
' I will discuss these propositions in the order stated, hut before doing so I wish to state in the first place that I am at a perfect loss to understand the motive which induced the plaintiff to institute and prosecute this suit, for the reason, as shown by the freight schedules, made and promulgated by the State Board ■ of Railroad and Warehouse Commissioners (which are public records and of which we have the right to take judicial notice), the rates with which he was charged were, in every instance, so far as I have been able to ascertain, less than the legal rates, and were evidently made for the purpose, among others, of enabling him to sell his coal in competition with the coal of mines located on other roads and in other states. If the reduced rates of which he complains had not been made by defendant he would not have been able to have marketed his coal, mentioned in this suit, in competition with coal from other mines, and would therefore have lost that trade, as will be presently shown. The defendant was also benefited by said reduced rates or it would not have made them, for the reason that it was thereby enabled to.secure the transportation of said coal which it otherwise would not have been able to have done on account of the competition of other mines located on other and shorter roads. Clearly, this was the case at Boonville, where coal was going there from Lowery City and Brownington over other roads; at Sweet Springs, where coal was going from Higginsvillle; and Joplin, where coal was going from various mines located in the State of Kansas. If the defendant company had not made the reduced rates complained of it would have meant that the mines located on other roads and in different states would have monopolized the coal business at the points to which the reduced rates were made, and that
Clearly, the plaintiff was not damaged by those reduced rates; but, upon the contrary, by enabling him to sell at the places named, the output of his mines was greatly increased, and the cost per ton for mining was doubtless reduced, and consequently he was thereby enabled to get a higher price for his coal than he could have received had his output been curtailed to the extent of the quantity sold at said competitive points.
Since the defendant had to run its trains any way, and as it could not, as before shown, secure the transportation of this coal unless it reduced the rates to those competitive points, it was benefited by the business so long as the rates which it received were more than the expense of the transportation.
This record shows that these reduced rates enabled the plaintiff to do business at those competitive points against mines located on other roads and in other states, and if like reductions aré to be made to all other, or non-competing points, the defendant could not afford to make the reductions to plaintiff and others to the competitive points, for the reason that the loss incident to the general reduction. would be much greater than the gain the defendant would derive from the plaintiff at the competitive points on account of the reduced rates. By consulting the geography of the State and the freight rates established by the State Board of Railroad and Warehouse Commissioners, it wili appear that the towns to which the reduced rates were made for the benefit of the plaintiff would get their coal from other mines over other roads at a less cost; and-no other point or person located on the Missouri Pacific;could justly claim that he or it was injured by the company giving the plain
But on the other hand, by the reduction of coal rates to the points mentioned, the My rick coal mines were benefited, and the plaintiff was thereby enabled to keep more men employed at his mines, and his output was greatly increased, and consequently his cost per ton was materially reduced and he was thereby better enabled to sell coal at a profit than he otherwise would have been. So was the consumer or industry at the competitive points benefited by reason of the .competition caused by plaintiff’s coal; and the defendant was also benefited by getting the transportation of all coal shipped by plaintiff to those points. All of these are State institutions, which should be encouraged and supported by all legitimate means.
By again consulting the geography of the country, it will-clearly appear that the Joplin coal rates complained of were made in competition with the coal and coal rates from the Cherokee and Pittsburg District of Kansas; and if our statute which provides that no-less charge shall be made for a longer than a shorter haul were to prevail, as contended for by counsel for plaintiff, it would mean in many cases that the industries in other states and foreign- transportation companies would thrive and wax fat at the expense of Missouri industries and carriers.
The close proximity of the Cherokee and Pitts-burg coal district of Kansas to Joplin and neighboring-Missouri towns is such that the Missouri coal mines could not market their products in any such town if it were not for said reduced rates, or if the long and short haul clause of the statute, as understood by some of my associates, was enforced. So long as no
We know from the common knowledge that the cost of mining coal in this State far exceeds the cost of mining it in the State of Illinois, and if Missouri coal mines are not given reduced rates to Boonville and other competing points, Illinois coal will surely supply their needs. This great difference in the price of mining coal in Illinois as compared with mining it in Missouri enables the former with much higher railroad rates to sell its products in this State even against the legal freight rates made from the Missouri mines. The Missouri mines, therefore, in order to be enabled to do any business in many towns of this State competing with the Illinois coal, it is necessary for the railroads to make them a lower rate than the legal rate; for instance, by an examination of the state and interstate rates it appears that the rate from the Illinois, coal fields to Boonville is $1.95 per ton and to Marshall $2.10 per ton. Still this record shows that defendant has made a rate of forty cents per ton on coal from Myrick to Boonville, presumably in order to enable it to haul some of the coal that is consumed at the latter place. Otherwise, the Illinois mines would supply that city’s entire demand.
Of course, it goes without argument that the defendant, like other railroad companies, is desirous of getting as high freight rates as it possibly can. Self-interest prompts it to do so, and when a railroad, therefore, voluntarily reduces the rates prescribed for it by statute or by the railroad commissioners, it must mean that it cannot otherwise procure the freight for transportation. Railroad companies understand the commercial conditions governing the situation and that
Where a railroad plant and all facilities are already ample and sufficient to enable it to transport such freight without further expenditures, then it will be seen that the expense incurred in this particular transportation would not be in proportion to that of its regularly established business. The difference in the rail carriers’ rates can sometimes be very great and it cannot be justly said that some are unreasonably high, or that others are unreasonably low, for the reason that the expense which a traffic under certain conditions adds to the already existing expense may be covered by very low rates without injury to any community or locality, and yet the rates which it may be necessary to charge upon other traffic must of necessity be higher so that the entire cost may be covered and the property be safely and successfully operated.
It is a common complaint made by the ordinary uninformed man, that the reduced competitive rates on the through rates which may be lower for a longer
I gather from the reports of the Interstate Commerce Commission that approximately the following divisions may be made of the entire expense of maintaining and operating the railroads of. the United States. One-third to pay interest on stocks and bonds; another third to be expended in maintaining stations and station grounds, salaries of the general officers, legal officers, division officers, station agents, clerks, telegraph operators, bridge men, section men, and all that class which it is necessary to retain whether the competitive through business is taken or not. In these, two-thirds of the expense which might be called a fixed expense goes on whether the railroad hauls ten million or thirty million tons of freight. The remaining third of the expense might be termed the movement expense, which consists of the wages of engineers, firemen, conductors and brakemen, locomotive and car repairers,, fuel, oil, waste, water, the wear and tear of rails, decay of ties, etc. As the competitive through traffic is offered at certain specified rates made by influences beyond the control of the carrier to change or affect, the question to be first determined is — will it pay this so-called movement expense? The other two-thirds of the expense of course goes on whether the through traffic is taken or not. Any sum received in excess of this movement expense is just so much more than can be applied toward meeting the fixed two-thirds expense, and the road is thereby enabled to make the burden lighter for the local or non-competitive traffic. The actual expense therefore attendant upon the transportation of competitive traffic which the railroad can secure only on condition that it charges certain specified rates made for it by outside influences entirely beyond its power to control, change or affect is the actual outlay which its movement necessitates.
It is thus seen that if the railroad plant and other
The movement expense of such traffic might be decreased materially according to the different conditions or exigencies that might arise. For instance, if the traffic was offered at a time when empty cars had to be returned, which at certain seasons of the year amount to thousands, the item of wages, fuel and other supplies, together with repairs of locomotives and cars, would not properly enter into the cost. The expense incident to these would be largely incurred with the movement of empty cars as well as with the loaded ones. Again, if the preponderance of tonnage was in the direction opposite to that which the competitive business was destined and such business enabled the carrier to load trains that would otherwise be hauled light or empty, the expense of the new competitive business would be inappreciable. Nor would this competitive business entail a proportionate share of the large expense of maintaining the track,. bridges and culverts, which constitute a large part of this third of the movement expense. The wear and tear of these are not in direct ratio to the tonnage transported. The wear and deterioration caused by the action of the weather, the repairs, renewals and washings of embankments, of the masonry, ballast and road crossings, the decay of ties, the bridges and fences would go on just the same whether this competitive business was or was not hauled, so that it would not be proper to charge such extra business with a tonnage proportionate to the expense of their maintenance.
Bearing in mind those many influences, it will be observed that many of the items comprising the move
From what has been said it will be seen that the difference in the rates of railroads can sometimes be very great, and yet it cannot be justly said of them that some are unreasonably high or others unreasonably low; that the expense which a traffic under certain conditions adds to the already existing expenses of a railroad may be covered by very low rates without injury to any community or locality, and yet the rates which it may be necessary to charge upon other traffic of necessity be higher in order that the entire cost may be covered and the property be safély and, successfully operated. Any profit, therefore, which may be in the transportation of competitive traffic— and from what has been said as to the expense, we think it would be conceded that the rates would have to be exceedingly low before there was no profit — relieves the local traffic from so much of the burden of meeting the fixed steady expense, and so long as the receipts from this competitive traffic are in excess of the expenses incurred for its transportation, there can be no such thing as recouping loss on low rate competitive business by charging higher rates on lo-, cal traffic, no matter how large a difference there may be betweén the two rates.
We might cite a case in point, which might arise, wherein a carrier by the reduction of rates enables an industry on its line to carry on its business by meeting the new commercial conditions that may spring up from time to time. For instance, the piping of gas and oil from the Kansas and Oklahoma fields to Kansas City and St. Joseph threatened to displace in those cities the sale of Missouri-mined coal, especially that mined at remote points from those cities. To relieve the situation the railroads came to the aid
By consulting the Missouri Pacific time-tables and the Interstate Commerce reports, it will be seen that the defendant operates about sixteen hundred miles of railroad in the United States, and that about one-half of that mileage runs at right angles to its main lines. Commercially, the city of St. Louis chiefly serves the towns embraced within one-half of defendant’s entire mileage. The same time-table and reports show that the distance from St. Louis to the principal towns on the lines via the Missouri Pacific is longer than that of any other road which runs from that city direct to them. If, therefore,' the defendant desires to engage in the traffic of such towns, it will be obliged to make the same or lower rates to them as are made by the shorter-distance lines; but if it must
The courts and Interstate Commerce Commission have rendered many decisions, which will be presently noted, on similar questions to this, and have invariably held that the discrimination must be unjust before the railroad is prohibited from making the lower rate for the longer haul.
Counsel for defendant in arguing this cause stated that if the long and short haul of the statute as understood by counsel for plaintiff was observed, the annual loss of about $600,000 would be entailed upon his client.
While that statement is no part of the record, yet we may use it for the purpose of illustrating the question in hand, and the great loss that would be visited upon defendant if that rule is to be enforced; and. if capitalized at four per cent it would be equivalent to wiping out of existence about $15,000,000 worth of defendant’s property, and that too with no corresponding benefit to any one, but a positive injury to the competitive towns, as before shown. And that is not all, the same proportionate loss would be entailed upon all other railroads in this State.
The necessity of charging higher rates per mile over some divisions of a railroad than over others is. recognized by the State Railroad and Warehouse Commissioners. In promulgating its schedule of maximum-freight rates, effective March 1st, 1904, the commission authorized the railroads of this State to charge-higher rates per mile between St. Louis and Kansas City on all roads located south of the Missouri Pacific’s main line than on those roads situate north thereof. Any one can readily understand that it costs-more to construct and operate a railroad in some dis
The foregoing observations have been made for the purpose of showing that there is nothing connected, with the construction and operation of a railroad which, is inconsistent with the* idea that just and reasonable' discrimination may be made by a railroad company in the transportation of freight and passengers without doing injustice to or inflicting injury upon any shipper or community in the State, and for the purpose of‘ showing what great loss would be entailed upon the-railroads of the State and the public at large if -such discrimination is not permitted. It should be borne in mind that the framers of the Constitution, as well as-the Legislature which enacted the statute in question,, were perfectly familiar with the then existing condition of things before mentioned, when the former framed the organic law of the State, and when the latter enacted said statute, and certainly they must have acted with that condition of things in mind; and to charge either of those august bodies with a design to prevent all discrimination, just as well as unjust, under the circumstances, would do it an injustice and reflect upon its honesty and intelligence.
Returning from this divergence to the two propositions previously stated. Standing alone the Act of' 1872 and section 12 of article Í2 of the Constitution prohibit all kinds of discrimination as to long and short hauls, just as well as unjust, and therefore change-the common law in this respect.
The Act of 1887, as shown by its title, as well a© its words and context, and section 14 of article 12 of the Constitution, are aimed only at unjust discriminations, and recognize that it is reasonable, proper and lawful to charge a different or greater compensation where the short haul differs in' circumstances and conditions' from the long haul, and also where the short'.
As to the statutes it is an invariable rule of law that if there is a conflict, the later one must prevail, for that is the last expression of legislative will. As to the Constitution a different question arises, for both provisions were adopted at the same time, and therefore both must be construed together, and all seeming conflict must be reconciled by construction. Otherwise, in cases of irreconcilable conflict, both would have to fail.
The framers of the Constitution of 1875 must be presumed to have known of the existence of the Act of 1872. Those learned gentlemen undertook for the first time to' have the organic law treat of this subject, and they expressed their will in sections 12 and 14 of article 12 of the Constitution. From 1872 and from 1875 the lawmakers were silent in respect to this matter. In 1877 the Governor of this State called the attention of the Genera] Assembly to these questions. The regular session did not act, and thereupon the Governor called a special session of the Legislature for the express purpose of legislating as to these questions, and that special session passed the Act of 1887. It was intended to be and purported to be a complete code of regulations pertaining to these questions. It was passed under a general law entitled, “An Act to Regulate Railroad Companies.” It did not amend the Act of 1872, or refer to it in any way. Great stress is laid upon section 21 of the Act of 1887, wherein it is said: “This Act is not intended to repeal any law
But it will be observed that such language was wholly unnecessary and of no force, for if the Act of 1872 is in conflict with the Act of 1887, the Act of 1872 would be repealed by necessary implication, and the court would so hold whether the Legislature said so or not, and it was not within the power of the Legislature to make the Act of 1887 simply supplemental to the Act of 1872 if the Act of 1872 was in conflict with the Act of 1887. Those are questions of law to be decided by the courts and not by virtue of any expression of intention of the Legislature, for it is not a question of intention, but a question of conflict, and therefore a question of law.
So that the legislative declaration in section 21, instead of having any controlling effect upon the de*cision of these questions, shows on its face that the lawmakers themselves intended the Act of 1887 to be the law of Missouri, and that the law of 1872 should be considered repealed wherever it conflicted with the Act of 1887. At any rate the courts must decide what effect the Act of 1887 had on the Act of 1872.
The Act of 1887 necessarily repeals the Act of 1872, because the Act of 1872 prohibits just, as well as unjust, discriminations, and by section 1160, Revised Statutes 1899, punishes a. violation of the act with a fine of one thousand dollars. On the other hand, the Act of 1887 simply prohibits unjust discrimination, and the charging of a larger sum for a short haul than is charged for a long haul, but qualifies that by limiting it to cases arising “under similar circumstances and conditions” and “over the same line in the same direction.” Section 12 of the Act of 1887 punishes a violation of that act by a fine of five thousand dollars. In addition to all of which, a fine provided under the Act of 1872 goes to the person aggrieved, whereas under section 14 of the Act of 1887 the five
The result of all of which is that it is impossible to reconcile the Act of 1872 and the Act of 1887, both as to substance and as to procedure. For it cannot be true that it is an offense against the laws under the Act of 1872 to discriminate in any respect under any -circumstances, and at the same time be true that under the Act of 1887 there may be a discrimination where the circumstances are not similar, where the conditions are different, or where the long and short haul are not in the same direction. And likewise it cannot be true that a railroad company can be fined one thousand dollars under the Act of 1872 to be paid to the party aggrieved for making any kind of a discrimination under any circumstances whatever, and at the same time not be guilty of any offense under the law of 1887, because the circumstances and conditions were different and the hauls were not in the same direction. It cannot be true that there can be two laws on the same subject, one of which makes an act a crime under all circumstances and conditions, and punishes it with one fine, and the other makes only certain qualified acts criminal and punishes them with a different fine, to go to a different purpose, and recognizes that other acts may lawfully be done.
In other words, it cannot be true that the Act of 1872, which prohibits all discriminations, just as well as unjust, under all circumstances and conditions, can
It is thus seen that the Act of 1887 covers the entire field of discrimination in the transportation of freight and passengers by railroad companies, the tolls and compensation to be charged therefor, and prohibiting a greater charge for a shorter haul than for a longer one, under the same conditions; and not only prescribes the penalties to be imposed for the violation of the act but the manner of collecting all damages done to persons in consequence of such violation is prescribed also. Under this state of things this court has repeatedly and properly held that “a statute is impliedly repealed by a subsequent one revising the whole subject-matter of the first, and intending to substitute the latter for the former.” [State ex rel. v. Patterson, 229 Mo. 364; State v. Hickman, 84 Mo. l. c. 79; State v. Roller, 77 Mo. l. c. 129; Smith v. State, 14 Mo. 152; State v. Summers, 142 Mo. 586, l. c. 595; Yall v. Gillham, 187 Mo. 393; Meriwether v. Love, 167 Mo. l. c. 521.]
By closer analysis of the Act of 1887, which con-. sists of twenty six sections, it will be more clearly seen that the subject of said section 1126 was not only fully covered thereby, but all other phases of discrimination were legislated upon, and the most drastic penalties imposed. Section 4 of the Act of 1887 clearly refers to the short and long hauls mentioned in said section 1126, and under the above rule of construction it must be held that the former by implication repealed the latter. Said section 4 of the Act of 1887 (Laws 1887, Ex. Sess., p. 17), is as follows: “It shall be unlawful
As before stated, this court has repeatedly held that a later statute will repeal by implication a prior one, where the repugnancy between them is such that
If section 1126 is still the law of this State, railroad companies cannot lawfully do the things which section 4 of the Act of 1887, which is the .same as section 1134 of Eevised Statutes of 1899, expressly authorizes them to do, to-wit, to charge a greater toll for shorter hauls than for longer ones, when the conditions are dissimilar and the shipments are made in opposite directions; but if the rule announced in the cases last cited is sound, then section 1126 and not 1134 is repealed by necessary implication. And this conclusion is in harmony with another line of decisions of this court which hold the last expression of the Legislature upon a given subject should prevail in case of a conflict between it and a previous statute. [State ex rel. v. Heidorn, 74 Mo. 410.]
Again, if it was not the intention of the Legislature to repeal the Act of 1872 (sec. 1126, E. S. 1899), which prohibited the charging of more for a shorter than a longer haul in any direction, why did it provide against the charging of more for a shorter than a longer haul when the shorter haul was embraced in the longer one? Section 1126 by its terms prohibited the charging of more for a shorter than a longer haul in all directions, and therefore prohibited the charging of more for a shorter than for a longer haul when a shorter haul was embraced in the longer haul. Section 1134 was superfluous if section 1126 remained in force.
The principle that when tbe mind of the Legislature is directed to a particular subject, its enactment must be presumed to be exhaustive of the legislative intent with respect thereto, should obtain. Any other conclusion would convict the Legislature of passing a vain and foolish act.
The second reason why I cannot concur with the
, This same question has many times been before the Interstate Commerce Commission, our Railroad and Warehouse Commissioners, as well as before various Federal courts. The former and the latter have invariably placed the same construction upon the long and short-haul clause of the Act of Congress covering the same question, as will appear from the following citations, that the Railroad and Warehouse Commissioners of this State have uniformly placed upon the statute under consideration.
The possibility that a discrimination may be just is recognized by section 2 of the Act of Congress, in declaring what shall be deemed unjust. [Interstate Commerce Commission v. Railroad, 145 U. S. 263.]
It was not the purpose 'of the Act to prohibit jjist discrimination in the transportation of persons or property. [United States v. Railroad, 127 Fed. 785.]
The object of section 2 of the act is to prevent one shipper from getting advantage over another in the matter of rates’, only where both make a substantially like offering to the carrier. [United States v. Hanley, 71 Fed. 672.]
The language of the act recognizes that a uniform rate between different shippers is not always possible or proper; that the time of service, the kind of traffic, and the circumstances and conditions under which it is transported, may materially change the just obligations and duties of the carrier to its patrons. [United States v. Hanley, 71 Fed. 672.]
A carrier subject to the act is only bound to give the same terms to all persons alike under the same conditions and circumstances. Any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. [Interstate Commerce Commission v. Railroad, 141 Fed. 1003, 1014.]
In fixing rates for differing but analogous services, the carrier has the right to exercise an honest discretion. Trifling differences of cost or character of the services rendered do not justify disparity of charges; but where the differences are substantial, either in the work to be performed, or in the utility and value to the persons served, a fair relation of rates meets the carrier’s obligation. [Carr v. Railroad, 9 I. C. C. R. 1, 11.]
Discrimination to be unlawful must be unjust. All discriminations between persons are not unlawful under section 2 of the act, but only such as are 1 ‘ unjust. ’ ’ [Interstate Commerce Commission v. Railroad, 43 Fed. 37, 47.]” It is not all discriminations that fall within the inhibition of the act, but only such as are unjust or-unreasonable. [Interstate Commerce Commission v. Railroad, 145 U. S. 263, 276.]
What matters may or may not be considered in determining the question of discrimination? The provision that discrimination must not be unjust necessarily implies that strict uniformity is not to be enforced; but that all circumstances and conditions which reasonable men would regard as affecting the welfare of the carrying companies, and of the producers, shippers and consumers, should be considered by the commission in enforcing the provisions of the act. [Tex. & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219.]
Discrimination must consist in the doing for or allowing to one party or place what is denied to another; it cannot be predicated of action which in itself is impartial. [Crews v. Railroad, 1 I. C. C. R. 401, 1 I. C. C. R. 703.]
When through rates for a longer distance are controlled by competition between carriers, the reasonableness of local rates not so affected is not to be determined by comparison with the through rates. [Charlotte Shippers Assn. v. Railroad, 11 I. C. C. R. 108.]
Rates from St. Louis, Nashville, Chattanooga to Hampton, Fla., were higher than rates from the same initial points to Palatka, Fla., the distance to Palatka being greater than that to Hampton. The rates to Palatka were fixed to meet competition at that point.
The proportions received by the inland carriers of through rates on import traffic from foreign ports to inland points in the United States were considerably lower than corresponding rates on domestic traffic from ports of entry to the same inland points. The through rates were controlled by competition at the foreign ports. The commission, without considering such competition, ordered the inland carriers to cease carrying imported traffic at any other than the rates established on domestic traffic. Held, that the effort of the commission to deprive inland consumers of the advantage of through rates, thus to give an advantage to traders and manufacturers at the large seaboard cities, would seem to create a mischief which the act was intended to remedy; that among the circumstances and conditions affecting rates which the commission should have considered, as well in the case of traffic originating in foreign ports as that originating within the United States, was competition; that the acceptance of proportions of the through rates which were lower than the corresponding domestic rates was not an act of unjust discrimination. [Texas & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, reversing I. C. C. v. Texas & P. Ry. Co.]
In deciding whether the proportions of through rates on import traffic, accepted by the inland carriers-for haul from ports of entry to destination, were unlawful as compared with higher inland rates on domestic traffic between the same points. Held, that the commission should have considered the following facts: That the acceptance of import traffic enabled the carriers to take advantage of the preponderance of empty
The fact that a rate in one direction is materially higher than the rate on the same class of traffic over the same line between the same points in the opposite direction does not establish prima facie the unreasonableness of the higher rate. [MacLoon v. Railroad, 9 I. C. C. R. 642.]
The fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the saíne road or line and between the same points in the opposite direction, does not, as in case of hauls over the same line in same directions, establish prima facie the unreasonableness of the higher rate. [Duncan v. Railroad, 6 I. C. C. R. 85, 103, 4 I. C. R. 385.]
Rate of 62 cents on “wool in the grease” was in effect from Philadelphia, Pa., to Port Wayne, Ind. Rate on the same commodity from Port Wayne to Philadelphia was only 34 cents. The movement of wool was almost wholly toward the East. Competition to secure east-bound traffic was therefore- more intense than that resulting from efforts to secure occasional shipments to the West. On complaint that west-bound rate was unreasonable as compared with- east-bound rate, held, that the -circumstances were so dissimilar that the reasonableness' of the former rate was not to
"Where, by reason of competition, rates to a longer distance point are lower than those in effect to a shorter distance point on the same line, the shorter distance being included within the longer, the reasonableness of the rates to the shorter distance point cannot be determined on mere comparison with those in effect to the longer distance point. [East Tennessee, V. & G. Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1.]
The mere fact that rates to a longer distance point, which are controlled by competition, are reasonable, cannot be availed of as a ground for holding that rates to shorter distance points on the same line are unreasonable. [Interstate Commerce Commission v. Railroad, 88 Fed. 186, 195; affirmed 93 Fed. 83, 35 C. C. A. 217; 181 U. S. 29, refusing to enforce order of Commissioner, Rd. Com. of Ga. v. Clyde S. S. Co., 51 I. C. C. R. 324, 4 I. C. R. 120.]
As the petition in this case does not allege nor does the evidence disclose the fact that the shipments, mentioned in the petition, were all similar, and were made in the same direction, it fails to state a cause of action against the appellant, and the evidence fails to prove one, and for those reasons I believe the judgment should be reversed.
While dissenting in this case, I am not unmindful of the fact that Division No. 2 of this court has reached the same conclusion as those expressed in the opinion 'of Valliant, P. J., and while I feel like shrinking from the responsibility of running counter to the opinions of such eminent and experienced jurists, yet my sense of duty impels me to state the reason for the faith that is within me. So far I have devoted much time in trying to show why the majority opiniq>n is not sound, and will now proceed to make a few-observations regarding the opinion delivered by Division No. 2 in the case of McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533.
This paragraph of the opinion contains an erroneous statement of fact regarding the enactment of section 1126, Revised Statutes ■ 1899. The opinion states that it was “passed in obedience to the mandate of the Constitution itself.” Now, the Constitution was not adopted until the year A. D. 1875, and an examination of the Laws of 1872, pp. 69 and 70, will show that the act of which section 1126 is an exact copy, was passed by the Legislature of 1872, which was three years prior to the adoption of the Constitution. That being true, it cannot be contended that said section was enacted in obedience to the command of the Constitution.
I, therefore, take it that if the fact upon which that portion of the opinion is based is erroneous, then the opinion in that particular must necessarily be erroneous also. And again, the Act .of 1872, from which section 1126 is a copy, was unconstitutional and void at the time of its passage, and could in no manner form a sound basis upon which to rest that decision. Nor can We escape that conclusion by saying that said act was re-enacted in 1879, for the manifest reason that it was repealed by the Act of 1887.
The second criticism I wish to suggest against that opinion is this: On page 543 the following language is used: “The first, or section 1126, Revised Statutes 1899, had and has for its object the regulation of freight charges in any direction, the same or opposite directions, on the same road and over any portion of the same road, regardless of ‘circumstances or conditions, ’ and is in the language of the Constitution itself, article 12, section 12, supra; whereas section 1134, Re- ■
The effect of the two opinions is to find for Mr. McGfrew, whether the shipments are made in the same or opposite directions. In either event the company must lose, yet, according to section 1134, it is entitled to win under the conditions stated therein, but under those two opinions those conditions can never transpire. .It is, therefore, clearly seen that according to these two opinions section 1134, which is the later enactment, is repealed by section 1126, which is the prior enactment. I submit that in the very nature of things this cannot be done, and it is in conflict with the universal rule of construction, that where two statutes of different dates were enacted and are in conflict with each other, the one which was first enacted will be repealed by implication by the subsequent enactment and not vice versa.
Not only this, but by reading section 12 of article 12 of the Constitution, and section 1126, it will be seen that the opinion mentioned is in error when it says that section of the statute was enacted in pursuance to the very mandate of the. Constitution, and is in the
I have thus attempted to show that section 1126 was not enacted in response to the mandate of the Constitution, as stated in that opinion, and that it is-much broader in its terms than are the provisions of said section 12 of the Constitution, and, therefore, it did not and could not prevent the Legislature in 1887 from repealing that section and enacting in lieu thereof section 1134.
This entire,trouble and litigation has grown out of the erroneous assumption that section 1126 was enacted in response to the mandate of the Constitution, and that it is in the language thereof, and in holding all other acts and statutes upon the subject to be in subordination to that section; whereas, in fact, it was enacted three years prior to the adoption of the Constitution, and was clearly unconstitutional at the time-of its passage, as before shown; and notwithstanding it was re-enacted in 1879, it was -clearly and unques
Y. Counsel for respondent finally contends that appellant cannot raise any constitutional questions in this court, because they were not presented to the court below. As a general proposition that is true, but where the sole cause of action arises out of the violation of a statute which is unconstitutional, and there can be no recovery except by giving that statute force and effect, then its constitutionality can be raised at ■any stage of the proceedings, and in any court where the cause is pending, at any time.
The reason for that rule is that if the statute is unconstitutional and void, and that is the only law upon which the case can be predicated, then there is no law creating a cause of action, and consequently there can be no recovery. [State ex rel. v. Smith, 177 Mo. 69, l. c. 92; State ex rel. v. Smith, 152 Mo. 444; Ex parte Siebold, 100 U. S. 371; State ex rel. v. Smith, 141 Mo. 1; Kaukauna Co. v. Green Bay Co., 142 U. S. 254; Kirkwood v. Meramec Highlands Co., 160 Mo. l. c. 118.]
I am, therefore, of the opinion that the judgment should be reversed and judgment entered here for appellant.