| Mo. | Oct 15, 1884
This suit is for tbe recovery of penalties for overcharges, alleged to have been made and received by defendant of plaintiff, on contracts for tbrougb shipments of freight from Lebanon, a station on defendant’s road, to St. Louis, tbe eastern terminus of tbe Missouri Pacific Railroad, and from Lebanon to Pacific, a
By section 838, Revised Statutes, freight is classified, and, by section 834, freight charges are regulated. The-freight shipped by plaintiff belonged to class “D” which comprises all grain in car loads. Section 835 imposes a penalty for making overcharges. Plaintiff had a judgment from which defendant has appealed, and contends that the foregoing provisions of the law do not apply to-it, because it acquired by purchase the right of the Atlantic and Pacific Railroad Company, a corporation organized under an act of the congress of the United States, and, also, by the same purchase, the right of the-S. W. Branch of the Pac. R. R. Co., a corporation organized under the laws of Missouri, to fix and determine-tolls, freights and fares, free from all state, control or influence. Appellant’s counsel has filed a voluminous abstract of 364 pages of printed matter, containing the acts of congress, and of the state legislature in relation to these different corporations, and, in a brief of 243 pages, discussed numerous questions, bearing upon that of defendant’s amenability to the above sections of the Revised Statutes; but there is only one point on this branch of the case, which we deem it necessary to notice, believing it decisive of the main question.
The defendant was incorporated in the year 1876, under the general laws of this state. The constitution of 1875, art. XII, contains the following provisions, in force when defendant was incorporated:
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.” Sec. 14. “Railways heretofore constructed, or that may
Sections 833, 834 and 835, classifying and regulating' charges for freight and imposing a penalty for overcharges, were in force at and prior to the date of defendant ’ s incorporation. D ef endant is not the £ £ Atlantic and - Pacific Railway Company,” or the ££ South West Branch of the Pacific,” under another name, but is a new corporation, organized since the adoption of the constitution of 1875, and the enactment by the general assembly of the above sections. The defendant, not the ££ Atlantic and Pacific” or the “ South West Branch of the Pacific,” is-now, and at the time of the alleged receipt of overcharges-for freight, was owner of, and operating the road from Lebanon to Pacific. Even conceding for the argument, that the Atlantic & Pacific by the act of congress, and the SouthWest Branch of the Pacific, by the act of our legislature, were placed beyond the control and interference of' the state, and had rights and franchises which could not be destroyed or abridged by the legislature, yet it does-not follow that a corporation deriving its being, under the laws of this state can purchase rights from any corporation or individual, which it is forbidden to exercise.
Corporations can hold only what they are authorized to acquire and hold by their charters. Before the defendant had a corporate existence the people of the state adopted the constitution of 1875, and the general assembly passed the laws required by the constitution, and yet it is claimed for a corporation, deriving its vitality and being from the general laws of the state, since the adop
In view of these solemn declarations in our organic law, would it not be strange if a corporation could be created .by the General Assembly, .or under the general law, which would not be subject to those provisions of the constitution? Sections 12 and 14, supra, of the constitution are prospective and are applicable to all railroad corporations formed after the adoption of that constitution. The manifest policy was, to get legislative control of all railroad corporations, and yet it is strenuously urged, that so far from succeeding as to corporations then in existence, it has even failed as to those subsequently organized, which can acquire, by purchase, the rights of effete corporations whose existence antedates the constitution, and thus perpetuate the exemption from legislative control, which the constitution sought to extinguish. We are of a different opinion, and hold that defendant is subject to the provisions of the constitution, and the law under consideration. And there are highly respectable authorities which support this view. Louisville & N. R. R. Co. v. Palmes, 109 U.S. 244" court="SCOTUS" date_filed="1883-11-19" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-palmes-90934?utm_source=webapp" opinion_id="90934">109 U. S. 244; Campbell v. R.R. Co., 23 Ohio St. 168.
Did defendant violate the law in question in its transactions with the plaintiff ? The sum of the freight .charged from Lebanon to St. Louis, considering it a
The evidence on this point established the following facts, we think, beyond any doubt: The defendant’s station agent at Lebanon was, also, the agent of the Missouri Pacific at that point. When plaintiff made his first shipment of wheat, he was told by defendant’s agent, that he was not authorized to give bills of lading for defendant company, to carry beyond its terminus, Pacific. Plaintiff at first objected, but finally shipped the wheat, taking defendant’s bill of lading to Pacific, and one from the Missouri Pacific from Pacific to St. Louis. At the same time he was furnished with blank bills of lading of both companies, which he afterwards used in his shipments, each of which was made as in the first instance. To those facts, not only the agent at Lebanon, but the plaintiff and his clerk testified. Every way bill issued by the defendant on freight shipped by plaintiff showed the division rates which each road received, and the freight charged by defendant, including demurrage and switchage at St. Louis. Pacific was defendant’s eastern terminus, nor did it ever have any control or management of the Missouri Pacific road or business from Pacific to
An agreement was entered into between the two companies, by‘'which the Missouri Pacific agreed to haul . defendant’s cars over its road, both passenger and freight, but under that agreement the Missouri Pacific had exclu- . sive control of the trains and cars and the arrangement was made as testified by several witnesses, in the interest . and for the benefit of shippers, to avoid breaking bulk at Pacific and the expense and waste incident to the re-handling of the freight. The plaintiff could have shipped ■ over the defendant’s road to Pacific at local rates, and there made his terms with the Missouri Pacific, or shipped in the mode adopted by him. The switch companies in St. Louis were separate and distinct from the Missouri Pacific Railway Company, and to get a car loaded with wheat from the Missouri Pacific depot to the Central Elevator or the Yeager Mills costs from $3 to $6 per car. All • of plaintiff’s wheat went to the Yeager Mills and the •Central Elevator, and the cost of transportation from the Missouri Pacific depot to those points was paid by • defendant. On the foregoing facts, we see nothing upon which to base the claim made by plaintiff.
The agreement between the Missouri Pacific and the • defendant made, as the witnesses testify, for the benefit • of shippers, does not affect the question of defendant’s liability; did not make defendant a carrier of freight from Lebanon to St. Louis, in spite of the express contract, made by defendant with plaintiff, that it would only carry to Pacific. It is contended that under that ■ contract, the Missouri Pacific only received eleven per
If such an arrangement as that made between these two roads is to be held to make each one a carrier over the route of the other, from the point where its cars are received by such other, railroad companies will of course to the detriment of shippers, throughout the state, cease to enter into such agreements. Without such an
The statute upon which this suit is based is a penal statute, and while not to be so strictly construed as to defeat its object, yet when one is charged with its violation, the evidence must show that, either in its letter, or, at least, in its spirit, its provisions have been violated. Even if defendant is to be held as having received the entire freight on plaintiff’s shipment to St. Louis, yet it was under no obligation to carry the wheat beyond the Missouri Pacific depot at St. Louis, and, in accordance with a long established custom, it paid for plaintiff the charges for transporting the wheat from that depot to the Yeager Mills-and to the St. Louis Elevator, from $8 to $5 per car, and adding to this a reasonable charge for demurrage, in support of which there is abundant testimony, and also, that, at that season cars were worth from $5 to $10 per day, and deducting these sums from the freight received, it would reduce the sum to considerably less than the charge allowed by the statute for the entire distance. Treating defendant as having only received from plaintiff freight charges from Lebanon to Pacific, eighteen cents per hundred pounds, the above charges would reduce the freight really received considerably below what defendant had a right to charge under the statute. The distance from Lebanon to Pacific is 148 miles, six cents for the first twenty-five, four for the next, and two cents for each additional twenty-five miles, would make the local rate it could have charged eighteen cents.