| Mo. | Jul 12, 1915
Lead Opinion
In this case the. defendant filed a demurrer to plaintiff’s petition, which was sustained, and plaintiff refusing to plead further judgment was
“Plaintiff, the State of Missouri, for its second amended petition, voluntarily made, leave of court having been first obtained therefor, states that it brings this action at the relation of John T. Barker, Attorney-General of the State of Missouri, and relator states that, on the 6th day of November, 1912,' he was duly elected Attorney-General of the State of Missouri, and has since qualified, and is now acting as said Attorney-General of said State of Missouri, and states that the-State of Missouri brings this action for itself, and for all other persons similarly situated, and who are hereby invited to enter herein and become parties hereto.
“Plaintiff further states that the defendant is-now, and was at all the times hereinafter mentioned, a railroad corporation, duly organized and existing under and by virtue of the laws of the State of Illinois, with authority to sue and liable to be sued as such in-the courts of this State, and that said defendant is in possession of and operating a line of railroad from Kansas City, Missouri, to St. Louis, Missouri, which said railroad passes, among others, through the county of Saline, in said State of Missouri.
“Plaintiff further states that, in the year 1905,, the General Assembly of the State of Missouri passed and enacted acts commonly known and designated as-the maximum freight rate laws, to-wit, the Act of the General Assembly, approved April 15, 1905, entitled ‘An Act, entitled “An act to amend chapter 12 of the Revised Statutes of Missouri, revision of 18-99, entitled ‘Corporations, Private,’ by repealing section 1194 of said Revised Statutes, being part of article 4 of said
“Relator further states that, at the time of granting said injunction by the said Federal court, Herbert S. Hadley was the Attorney-General of the State of Missouri, and as such Attorney-General was made, and by the act of said defendant became and was, the representative of all shippers and passengers shipping and traveling upon, defendant’s lines or railroad from points within the State of Missouri to other points therein, and paying freight charges and passenger fares therefor, and as such Attorney-General was enjoined from enforcing any of the provisions of said maximum freight and passenger laws, and by virtue of said injunction against said Herbert S. Hadley, Attorney-General of said State of Missouri, who was then
“Relator further states that, after the granting- and allowing of said injunction, as aforesaid, the State-of Missouri, through its Attorney-General, and the shippers and passengers, and persons paying said unlawful and excessive freight charges and passenger fares, as aforesaid, through their representative, prosecuted an appeal to the Supreme Court of the United States, and that, on the 16th day of June, 1913, the-said Supreme Court reversed and for naught held the said decree of said Federal court granting and allowing said injunction in behalf of the defendant herein, and ordered said injunction dissolved and defendants bill therefor dismissed, without prejudice, and held that said maximum freight rate laws and said maximum passenger rate laws were and are valid and had been in effect since the time they became operative and in effect under the Constitution and laws of the State of Missouri, and found all the issues in said suit in favor of the State of Missouri, and said shippers and passengers, and persons paying said excess charges and fares, as aforesaid; that, thereafter said injunction was dissolved, and the defendant’s bill therefor dismissed, and the Federal Court aforesaid refused, and has since refused, to retain jurisdiction of said matter, but has left the question of jurisdiction for the State courts, and on the 2nd day of July, 1913, the defendant herein filed and published and put into effect, its schedules and tariffs, as required by said maximum passenger rate law, and, on the 12th day of July, 1913, filed and published, and put into effect, its schedules and tariffs, as required by said maximum freight rate law, and, at the times hereinbefore stated* respectively,
“Relator further states that, from said May 1, 1909, until said July 2, 1913, during the time said injunction was in force and effect preventing the operating and enforcement of said maximum passenger rate laws, the plaintiff was compelled to and did pay the railroad fares of its officers, agents and employees, while traveling upon the business and affairs of said State of Missouri, over the lines of railroad of the defendant herein, from points within the State of Missouri to other points therein, and during said time was compelled to and did pay to the said defendant, in excess passenger fares, the sum of fifty thousand dollars, and the State of Missouri is entitled to and should recover said excess passenger fares so paid from the ■defendant herein; that the defendant herein charged, collected and received said money without authority of law, and holds the same in violation of its corporate rights and powers as a common carrier in the State of Missouri, and has no title in and to said unlawful, exorbitant and excessive passenger fares and rates so collected, and had and received all and every part thereof for the use and benefit of the State of Missouri, plaintiff herein, and all of said money aforesaid belongs to the plaintiff, from which it was wrongfully and unlawfully taken, and wrongfully and unlawfully retained by defendant, and withheld from plaintiff, and, on said 2d day of July, 1913, when said defendant ceased to unlawfully charge, collect and receive said excess passenger fares aforesaid, said defendant was, and now is, indebted to the State of Missouri, the plaintiff herein, in said sum of fifty thousand dollars; for so much money had and received for the use of the State of Missouri, plaintiff herein.
“Relator further states that the State of Missouri, plaintiff herein, during the continuance of said
“Relator further states, that, on or about the-day of February, 1911, a fire caused the destruction of such records as were in the possession of the plaintiff, showing such shipments and charges aforesaid, and the plaintiff is not now in possession of any record thereof, is unable to state the amount of excess freight rates and charges charged, collected and received by defendant thereon, but that the defendant has a full and complete record thereof, and all the facts pertaining thereto are peculiarly within the knowledge of said defendant, and that said items and charges extended over a period of more than seven years, and are very numerous and complicated, and can be ascertained only by taking an accounting and having discovery thereof; that the defendant herein charged, collected and received said excess freight charges without any warrant or authority of law, and holds the same in violation of its corporate rights and powers as a common carrier in the State of Missouri, and has no title in and to said unlawful, excessive and exorbitant charges so collected, and had and received all and every part thereof to and for the use and benefit of the State of Missouri, plaintiff herein, and all of the money and said excess freight rates or charges and each and every part thereof belongs to the plaintiff, from which the same was wrongfully and unlawfully taken, and wrongfully and unlawfully retained by the defendant, and
“Plaintiff further states that, during the times hereinbefore stated, all the shippers and passengers, shipping and traveling over the lines of railroad of defendant from points within the State of Missouri to other points therein, and persons paying charges and fares therefor, the number of which is unknown to plaintiff, but runs into the thousands and hundreds of thousands, were likewise, and by the same identical and continuous unlawful act or acts of defendant, compelled to and did pay to the defendant said excessive freight rates or charges and said excess passenger rates or fares, and are likewise entitled to recover from the defendant such unlawful, exorbitant and excessive rates or charges, and that each and every one of them has the right to maintain an action against the defendant therefor; that the number of said shippers and passengers, and persons so paying said rates, charges or fares, are very numerous and in the same class as plaintiff, and their claims therefor likewise numerous, and that each and all of them are in the same situation as, or similarly situated with, the plaintiff in this suit; that there is a community of interests between all such shippers, passengers and persons so paying said excess rates, charges or fares and the State of Missouri, and that all said parties are united by a common tie, and have an identity of interest in the subject-matter of this suit; and are directly interested in the result or results to be obtained in this suit; that precisely the same questions of law and fact are in
“Wherefore, plaintiff prays judgment against the the defendant for the said sum of fifty thousand dollars, aforesaid, and for an accounting and discovery against the defendant herein as to said excess freight charges, and as to said excess passenger fares, so that it may be ascertained the exact amount of money so unlawfully taken'and exacted from the State of Missouri, plaintiff herein, and all other shippers and passengers similarly situated, and had and received to and for its and their use by defendant as aforesaid, and prays that a referee be appointed for the purpose of securing said accounting, and discovery of the items and amounts thereof, and that judgment be rendered against the defendant herein, for the amount so as
To this petition the following demurrer was hied:
“Comes now the defendant and demurs to plaintiff’s second amended petition in this cause for the following reasons, to-wit:
“1. Because the petition does not state facts sufficient to constitute a cause of action against this defendant.
“2. Because plaintiff has in said petition attempted to bring before the court alleged claims and alleged causes of action of other persons which cannot be legally joined in this suit, and are improperly united; and said petition is multifarious.
“3. Because plaintiff, in said petition, has improperly united alleged claims or alleged causes of action of persons not named as parties plaintiff to said suit.
“4. Because said petition is clearly multifarious.
“5. Because plaintiff, State of Missouri at the relation of John T. Barker, Attorney-General, has no legal capacity or right to maintain this suit for or on behalf of any shippers and passengers in any capacity whatever.
“6. Because this court has no jurisdiction of the subject of the action or of the alleged claims or alleged causes of action of shippers and passengers referred to in the petition, or of the alleged shippers and passengers.
’ “8. Because plaintiff has not the legal capacity or right or authority in law to sue or maintain this suit against defendant.
“9. Because there is a misjoinder of alleged causes of action which cannot be joined in the same-count or in the same petition.
“10. Because, the petition, upon its face, discloses no equity so as to give this court, as a court of equity, jurisdiction to grant the relief prayed in said petition, or the appointment óf a referee for the purpose of an accounting.
“11. Because the petition does not state whether or not an injunction bond was given or executed in the injunction suit referred to in the petition filed in the Circuit Court of the United States for the Western Division of the Western District of Missouri, sitting at Kansas City, Missouri; and, in the absence of an injunction bond, no recovery can be had by reason of any damages or claims caused by or growing out of the issuance of said injunction, and in any event no recovery can be had in the absence of a bond covering the matters complained of in the petition.
“12. Because at the time of issuing the alleged injunction by the said Federal court referred to in the petition, an injunction bond was executed and issued and filed in said Federal court and approved by said court, which bond is in words and figures, as follows, to-wit:
“IN THE CIRCUIT COURT OF THE UNITED STATES FOR “THE WESTERN DIVISION OF THE WESTERN “DISTRICT OF MISSOURI.
“THE CHICAGO & ALTON RAILROAD COMPANY, Complainant, y. “HERBERT S. HADLEY, Attorney-General, Joseph Ríce, John A. Knott and Frank W. Wightman, Railroad Commissioners, et al., Defendants.
*675 “INJUNCTION BOND.
‘‘Know all men by these presents: That the above complainant is held and firmly bound to the above-named defendants in the penal sum of ten thousand dollars, .for the payment of which it binds itself, its executors, administrators, successors and assigns. This .bond is made upon the condition.
“Whereas, the court in the above-entitled cause made an order on July 12, 1905, granting a temporary injunction; now if said obligor pays, in case said injunction be dissolved, all damages ascertained herein to have been sustained by defendants, or any of them, or any person becoming a defendant herein, then this obligation to be void;, otherwise in full force and effect.
“Witness the hand and seal of said party this- day of July, 1905.
“The Chicago & Alton Railroad Company,
“By S. M. Felton, Its President. “Attest: Charles H. Davis, Secretary.
“The foregoing bond is approved this 22nd day of July, 1905, the appearing defendants waiving the necessity of any surety signing the bond.
“Adelaide Utter, Clerk.
“That any recovery for the matters complained of in plaintiff’s petition is limited to said bond, above set forth, and that no recovery can be had for any of the matters complained of in plaintiff’s petition except in an action upon said bond, which bond plaintiff, through its counsel, has admitted was given and executed and approved by the court which issued the injunction alleged in the petition.
“13. Because the United States District Court for the Western Division of the Western District of Missouri alone has jurisdiction of all alleged damages or claims of the State of Missouri and of shippers and passengers for and on account of the alleged overcharges, and that the same are limited by said bond.
“14. Because the alleged statutes of the State of Missouri referred to in the petition are confiscatory, and enforcement of the same would amount to a depriving of defendant of its property without compensation,' without due process of law or the equal protection of the. law, contrary to section 1, article 14, of
“Wherefore, defendant prays the judgment of the' court. ’ ’
Other questions will be further outlined in the course of the opinion.
I. Some acrimony has seemingly crept into this case. The briefs are voluminous, and in some instances cite a great number of cases many of which fall far short of the conceived point, and at times the conception is not even clear. It is a case, however, where the court should winnow the wheat (if any) from the chaff; where the bark should be separated from the solid wood; where principles of substantial law should be separated from all vagaries. It is in other words a typical case for the application of seasoned doctrines of law. The doctrines of the theorist have no place in a case where either life, limb or property is at stake, and it makes no difference from which side of economic or political questions the theorist may come. We have theorists who imagine large interests are the only things to be observed, and then we have theorists that imagine that property rights should be swept aside by popular clamor, much of which clamor is of their own creation. Both are alike dangerous to society and the true administration of the law. Such views have no place in briefs for the courts. Questions of law which are at issue are the only things in which the courts are interested and harangues in which popular prejudice is sought have no place here. Some briefs in this case amply justify these remarks. We shall not be personal (and therefore designate no briefs), but the one upon which the shoe fits will recognize the justness of these observations. We pass now to the merits of this cause.
II. We have set out the petition in full for a purpose. At one time it appeared that there might be á question as to whether or not the learned Attorney-General was suing for the State, or whether he was suing for both the State and all passenger and freight shippers. In fact distinguished counsel privately employed by the State had suggested in oral argument that the court could, if it took a certain view of the law, strike from the petition certain allegations of the petition, as surplusage, and leave a petition which would state a good cause of action against the defendant and in favor of the State only. To my mind the suggestion struck with some force at the time. Later, however, a reading of the petition did not bear out the suggestion. But we need not necessarily resort to a reading of the petition for its construction. In the reply brief filed, the learned Attorney-General, despite the suggestion aforesaid, has seen fit to fully characterize his petition. As he stands sponser for the petition and this case, his interpretation of the petition should go far with the court. This on the theory that one should be bound by-his own admissions. His admission that this suit was brought for the shippers and passengers of Missouri is couched in this language:
“The last brief upon behalf of the railroad has been filed. This will be the last word said for more than one hundred thousand shippers and passengers, whose money has been wrongfully taken from them.
“The ‘Swan Song’ of the railroad is a last attempt to vilify the Attorney-General for his efforts to recover for the people their money.
‘ ‘ In their madness they cannot conceive of an Attorney-General who stands for the people. Had the Attorney-General represented them with one-half the zeal he represents the people, he would have been a great man, great enough as a lawyer to occupy a seat upon the bench of the Supreme Court of the United States—
The learned Attorney-General thus clearly admits that the purpose of his suit (and therefore the gist of his petition) is to recover not only for the State, but for “more than one hundred thousand shippers and passengers” the excess which was paid by the State and these “more than one hundred thousand shippers and passengers” in passenger and shipping rates. On page three of the original brief the learned Attorney-General, thus further says:
“The State also, in connection with its own cause of action, seeks to prosecute the suit in behalf of all other shippers and passengers, who were compelled to pay like excess charges, and who, therefore, are similarly situated with the State.”
Having characterized this petition himself he is estopped from saying that the court should otherwise name such petition, if his admission lead into trouble under the demurrer. Not only do we have this solemn admission, but many others of a like character throughout the several briefs filed by the appellants. We would therefore be perfectly safe in assuming the petition to be as the drafter thereof admits it to be.
But we need not rest upon these admissions alone. The petition proceeds upon the theory that the Attorney-General represents the shippers and passengers. It has been said that the prayer of a petition is no part of the petition, but the prayer of a petition is a Near index to the construction placed upon the petition by the pleader. A portion of the prayer in this case reads:
“Wherefore, plaintiff prays judgment against the defendant for the said sum of fifty thousand dollars, aforesaid, and for an accounting and discovery against
In the petition proper several pages are used in averring that the Attorney-General “by act of defendant became and was the representative of all shippers and passengers.” Just how a railroad company could, by any act of its, make the Attorney-General the agent and attorney for Missouri shippers and passengers is left in darkness. We only call attention to this among other allegations in the petition for the purpose of characterizing the petition. That ■ the construction given by the learned Attorney-General of his own petition, in his last brief, is a proper one (that he not only represents the State, but all the shippers and passengers) would seem to be borne out by the pleading itself. In fact it is urged that all these alleged excess charges are a trust fund in the hands of the defendant, and the Attorney-General for the State and all shippers and passengers is attempting to establish that trust and the amount thereof. With the petition as we view it, and with the construction thereof given us by the learned Attorney-General, we have no hesitancy in holding that the petition is one which attempts to collect these excess freight and passenger charges from the defendant not only for the State, but for the numerous shippers and passengers. That both the State and the shippers and passengers have a remedy, we have no doubt, but that is not the only question raised by this demurrer. Of these respective rights we may have more to say if occasion demands. The question uppermost at this point is, conceding the purpose of the petition- to be as the Attorney-General admits, and as we construe if, what then should be its fate under
III. The petition shows that the State, and the shippers and passengers, are attempting to recover the excess, which was charged them by defendant upon freight and passenger carriage, over and above the last maximum rate statutes for freight and w passenger rates. We use the word £ statutes” in the broader sense, because the freight and passenger statutes involved are not only separate and distinct statutes, but were laws passed at different terms of the Legislature. Now, concluding, as we do, that both the State and these shippers and passengers can recover, the question is whether this petition is good as against the demurrer lodged against it. At this point it is not necessary for us to say whether or not the excess paid by the State is wrapped up in an injunction bond, if one was given in-the Federal case referred to-in the petition. The petition does not aver that such a bond was given, and although the demurrer does aver that such a bond was given, the “speaking” portion of this demurrer is not really here for consideration and it might in one sense be improper to discuss it. If we discuss the bond question at all, it will not be in view of paragraph 12 of the demurrer, which demurrer is fully set out in the statement. A discussion of the question might be proper under some other clause of the demurrer.
It is clear to our minds from the allegations of this petition that the sundry shippers and passengers of this State were not parties to the Federal case pleaded in the petition, and their rights were not foreclosed by whatever may have been done by the court i-n that case. If by reason of having stood upon unequal vantage ground the defendant has compelled the shippers and passengers of this State to- pay more freight and passenger charges than under a valid law
“The defendant may demur to the petition, when it shall appear upon the face thereof, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between .the same parties, for the same cause, in this State; or fourth, that there is a defect of parties plaintiff or defendant; or fifth, that several causes of action have been improperly united; or sixth, that the petition does not state facts sufficient to constitute a cause of action; or, seventh, that a party plaintiff or defendant is not a necessary party to a complete determination of the action. ’ ’
The demurrer in the case at bar raises most of these questions. It is at least broad enough to raise the question that the plaintiff has not the legal capacity
In the first the excess was paid as alleged through an injunction wrongfully sued out — a wrongful act of the defendant. In the latter or supposed case we also have the wrongful act of- the defendant. After all, and in both cases, the subject of recovery is the difference between what was charged and received, and what the law permitted to be charged. Broadly speaking there can be no difference in the two cases. When we get down to the real case before us much of the learning in the briefs is as so much waste paper. Cases are often befogged by imaginary issues, when the real issues are simple. The subject-matter of the recovery sought in this case is plain. Can the State sue for the shippers and passengers, who by chance may have claims against the defendant? In the language of section 1800, Revised Statutes 1909, the statute on demurrer, has the State the capacity to sue in that way and for that purpose? Without hesitation we say not. The State may sue for herself, if she has not otherwise entangled herself in the injunction suit (a question passed) and the shippers and passengers may sue for themselves, but the State has no power to sue for all as she has done in the present petition. On this ground the demurrer was well taken.
When the State brings suit for the recovery of excess passenger and freight charges it has had to pay (whether that action be upon the injunction bond or a straight suit for the money paid), it is suing as any other corporation or citizen would sue. It is not acting in its governmental capacity. As said by the
To like effect is the Oregon Court in State ex rel. v. Lord, 28 Or. 498" court="Or." date_filed="1896-01-27" href="https://app.midpage.ai/document/state-v-lord-6897013?utm_source=webapp" opinion_id="6897013">28 Ore. 498:
“It was also held that the State, suing, in its corporate capacity for the protection of its property rights, stood in no different or better position in this regard than an individual. This doctrine is supported by high authority. Allen, J., in People v. Canal Board, 55 N. Y. 395, says: ‘When the State as plaintiff invokes the aid of a court of equity, it is not exempt from the rules applicable to • ordinary suitors; that is, it must establish a case of equitable cognizance, and a right to the particular relief demanded.’ And. as is said by the eminent jurist in People v. Ingersoll, 58 N. Y. 14, 17 Am. Rep. 178: ‘A distinction is to be observed between actions by the people or the State in right of the prerogative incident to sovereignty, and those founded on some pecuniary interest or proprietary right. The latter are governed by the ordinary rules of law by which rights are determined between individuals.’ To the same effect is the doctrine announced in People v. Fields, 58 N. Y. 514. See, also, 2 High, Inj., sec. 1327. So that we then concluded the plaintiff herein occupied no better or superior position, from a legal standpoint, for enforcing the remedy sought to be invoked, than the plaintiff in Sherman v. Bellows, 24 Or. 553" court="Or." date_filed="1893-10-30" href="https://app.midpage.ai/document/sherman-v-bellows-6896457?utm_source=webapp" opinion_id="6896457">24 Ore. 553. From this position we see no sufficient reason for receding, as we believe it to be sound in law, and supported upon reason and authority.”
In People v. Railroad, 57 N.Y. 161" court="NY" date_filed="1874-01-05" href="https://app.midpage.ai/document/people-v--albany-susquehanna-rr-co-3604939?utm_source=webapp" opinion_id="3604939">57 N. Y. 161, the New York Court of Appeals said:
In Oklahoma v. A., T. & S. F. Ry. Co., 220 U. S. l. c. 286, Mr. Justice Harlan said:
“If after Oklahoma became a State the company still charged the Kansas rate on local business in Oklahoma and if those rai.o would have been illegal under any State regulations, or were, in themselves, unreasonable and purely arbitrary, a controversy, in the constitutional sense, would have arisen between each shipper and the company,- which could have been determined by suit brought by the shipper in the proper State court, or even in the proper Federal court, where the controversy, by reason of the grounds alleged by the shipper, was one of which the latter court, under the statutes regulating the jurisdiction of the Federal courts, could take judicial cognizance. But plainly the State, in its corporate capacity, would have no such interest in a controversy of that kind as would entitle it to vindicate and enforce the rights of a particular shipper or shippers, and, incidentally, of all shippers, by an original suit brought in its own name, in this court, to restrain the company from applying the Kan
Other cases might be cited and quoted from but these will suffice. These courts get at the logic and reason of the thing. The State has no more right to codect my claim for excess freight or. passenger charges, than would one of my fellow members upon this court. The State in such transactions, i. e., law suits to protect its property, stands just as do individuals, and its right to sue for itself and for others must be measured by the same rules. Measured by- these rules it can’t sue for other shippers and passengers, under the facts pleaded. Each claim is a case within itself. It is true that there may be one common fact, i. e., that each arose by the failure of the railway to obey laws, but on the other hand all other proof is different. If the sundry claims grow out of shipping contracts violative of law, you may have as many contracts as you have claims.
But we need not multiply words. The claim of each shipper and passenger against the defendant is a private right. The State has no right to enforce mere private rights, and on this theory could not sue for others. Then from the other viewpoint the State could not sue for others than itself without having assignments of the claims, or without having the other claimants join, and when they do so join then further complications as to the petition arise. We have separate and distinct causes of action in a petition of a single count. But even more we would have a judgment in parts of which the State would have no interest earthly. What interest would the State have in a finding and judgment under this petition that John Jones was entitled to recover from the defendant $20,000 in overcharges? We realize that there is an equitable rule which permits persons similarly situated to sue in the name of a class, but that rule has no application to a thousand individual claims dependent upon different
As said before, the only thing which is common to • all these claims is that they arose out of a failure to comply with certain laws which have been determined to be valid. In1 all other respects the proof thereof is entirely different as to each claim. We rule therefore that the petition is bad, because giving the petition the construction given it by its learned author, the State has not the legal capacity to sue in the manner here indicated. If not estopped by something in the injunction proceeding mentioned, it could sue for itself, but not for itself and all shippers and passengers.
IY. That a State should not be permitted through its public officers, to assist either side of a private controversy is not only recognized generally, but it is specifically recognized in Missouri. In the case of State ex inf. v. A., T. & S. F. Ry. Co., 176 Mo. l. c. 709, this court quotes with approval the following from section 1830, 2 Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.):
‘ ‘ The people of the State have no power to invoke the action of the courts of justice in this form for the redress of civil wrongs sustained by some citizens at the hands of others. When the people come into court in the name and right of sovereignty, as plaintiffs in a civil action, they must come upon their own right for relief, to which they are themselves entitled. It is not sufficient for them to show that wrong has been done to some one; the wrong must appear to be done to the public in order to support an action by the people for redress. This principle has been applied and illustrated in numerous cases both in England and the United States. Thus, where a turnpike company in making its road through private lands had failed to
Applying this doctrine to the ease at bar. The State has the right to sue for itself in this case, unless it may have become implicated by some acts in the injunction case, but as to any other shipper or passenger it should not “take a hand,” if we may be permitted to use such a term judicially. Even the old equitable rule permitting one in the name of a class to sue, if such rule can stand under our code of practice, should be rigidly construed as to the State. If during this injunction proceeding John Jones, who was not a party thereto, had been compelled to pay excess passenger or freight charges, such controversy was a private matter between him and the defendant. The courts are open to him to adjudicate and adjudge his grievances, but the propriety of the State joining with him in the enforcement of this private right is quite a different question. As between citizens the hands of the State should be off. It would be unfair for the State to use public funds to assist certain private suitors in collecting their claims, when the mass of the contributors to the State’s funds (the tax payers) had no such claims. The Attorney-General in civil matters represents the State in its private interests. To
If the question as to whether a railroad corporation has charged me an excess rate, in either freight or passenger charges, is not a private controversy, I have read the books to no avail. If it were necessary (which it is not under the facts in this case) I would say that it should be held that the State under no circumstances, as a private suitor, should be permitted to go to the extent of drawing to it individual suitors, as against other individuals or corporations, of the State. It should not be permitted to use its powers, and its officers, and the public funds under the control of such officers, for the purpose of adjusting controversies between two of its citizens, although the State might have a similar controversy. This on the theory that as to the- private controversies between citizens, the State’s hands should be off. Respect for the State and State Government cannot be otherwise retained. If the State has a private grievance (as it would seem in this case) against oné of its citizens or corporations, let it litigate that grievance, but it should not as a pure question of public policy, be permitted to assist in the adjustment of similar grievances as between its own citizenship. The State should be broader' than that. It should not desire to intermeddle, even
V. There are other questions urged by the demur-, rer that might be fatal, to the petition, but we do not deem it necessary to discuss them. The question as to whether the State should look to the injunction bond, if such was given in the Federal case, is one of them. We desire now to express no opinion upon it. That is a matter for the learned representative of the State to determine. He does not plead that there was a bond. That the State has a right 'of recovery somewhere, if there was an injunction bond, is unquestioned. It is sufficient to say that for the reasons we have assigned the demurrer was well taken, and the judgment of the circuit court should be and is affirmed.
Concurrence Opinion
(concurring) ¡ — Because of the great importance of this case and the far reaching effect of the principles of law contended for by our learned Attorney-General and his distinguished associates, I have given the case more than ordinary consideration. While I fully concur in the opinion of my Brother Graves, yet there is one point I wish to accentuate which he has not laid as much stress upon as I should have liked for him to have done. For that reason I wish to add the following observations.
It is true one person may in equity join with him in a suit all persons as plaintiffs who are similarly interested and situated, that is, all persons whose interests spring from or grow out of the same illegal act or transaction may join in a common suit or action against the wrongdoer. That idea, however, refers to the wrongful act of the actor and not to the principle of law involved, the latter of which must, under both the State and the Federal Constitution, be general and not class,legislation. To make myself clear, suppose I should be indebted to two or more persons in the sum of $500 each, and should convey my property, say 100 acres of land, to my friend J. B. Jones for the purpose of defrauding my said creditors. ■ Under those facts it is not only settled, but might be said to be elementary, that all of my creditors might join in one suit to set aside the deed of conveyance on. the ground of fraud; or that if I should convey my land; say 200 acres, 100 to J. B. Jones and the other 100 to John Smith, for the purpose of defrauding my creditors, then one or all of my said creditors might severally or jointly, sue either or both Jones and Smith jointly in an action to set aside the fraudulent conveyances. This is predicated upon the fact that the same act or transaction which I committed was common to
The pioneer decision of this court upon that proposition is found in the case of Tucker v. Tucker, 29 Mo. 350" court="Mo." date_filed="1860-01-15" href="https://app.midpage.ai/document/tucker-v-tucker-8000729?utm_source=webapp" opinion_id="8000729">29 Mo. 350, and amplified and confirmed by Norton, J., in the case of Donovan v. Dunning, 69 Mo. 436" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/donovan-v-dunning-8006204?utm_source=webapp" opinion_id="8006204">69 Mo. 436. From that time to this the doctrine there announced has not been questioned in this State; but that is not the question here presented for determination, for there, as stated, the same act of the wrongdoer affected all the creditors, while in this case the acts complained of by the State and her co-plaintiffs are several and distinct, growing out of the alleged violation of a statute which, as before stated, must be general and not local or special, under the State and Federal Constitutions. If the contention presented and contended for by the State is sound, then each and every person in the State, or elsewhere, who should be defrauded by means of false weights could join in one suit against the wrongdoer to recover from him all sums he may h.ave defrauded them of by virtue of the false weights, though made at different times, at different places, and of course to different persons. To illustrate: for instance, which is a fact, I paid a few dollars overcharges for both freight and passenger services, which, under the decisions of the United States courts, were illegally demanded and wrongfully collected from me by some one of the numerous defendants involved in this litigation, but that fact in no manner nor in any sense gave me a common interest in or a joint cause of action with my brother Barker for the excessive charges which he also doubtless paid to some one or more of the defendants mentioned under separate and independent unlawful executions similar to those enforced against myself. I respectfully submit that if I am not correct in the observation just made, then all wrong
With commendable zeal our learned Attorney-Greneral has insisted that this court should stretch the principles of procedure before mentioned to cover this new condition of affairs that has never been presented to a court in this country before, and asks this court to apply the same to the facts of this case. However much we might be disposed to do so, in order to meet what appears to be the justice of the situation, yet it must be remembered that we are not the law-making power of the State and have no right to make, but only to decide, the law as it is, as declared in the old maxim, Jus dicere et non dare.
For the reason, among others stated, I agree to the opinion of my learned associate.
Concurrence in Part
(concurring in part and dissenting in .part). — There is no doubt of the correctness of the conclusions reached in the principal opinion that the Attorney- General cannot maintain this action in behalf of individual shippers and passengers from whom defendant has exacted charges in excess of legal rates. With that conclusion it is. necessary to agree unless established principles are ignored. It is also clearly evident that the opinion is right in holding that actions may be maintained by individual shippers and passengers and by the State, in the same manner as an individual, for such excess charges as they have, respectively, been compelled to pay. It does not seem to follow, necessarily, however, that this petition does not state a cause of action in behalf of the
Dissenting Opinion
DISSENTING OPINION OF HENRY W. BOND, JUDGE. '
I.
Being unable to agree with the views expressed in the learned majority opinion or the disposition of the case made by it, I herewith file my dissent.
The case is here on the appeal of the' plaintiff from a final judgment for defendant following the sustention of a demurrer to the amended petition. Both of these pleadings are set out in the majority opinion. They speak for themselves, and it is their language aloné which must fix their meaning and determine the questions presented for review. [Ashby v. Winston, 26 Mo. l. c. 213; Hamilton v. McLean, 169 Mo. l. c. 69; Kerr v. Simmons, 82 Mo. l. c. 275; Vaughan v. Daniels, 98 Mo. 234.]
Taking the petition first, the State of Missouri, as the only party plaintiff, alleged that defendant was indebted to it in the.sum of fifty thousand dollars for
Taking the demurrer next. Of the fourteen grounds stated only two can have any relevancy to the facts stated in the petition, the others are either repetitions or obviously untenable as not being confined to the- allegations contained in the petition. [Story, Eq. Pleadings (10 Ed.), sec. 448; Hubbard v. Slavens, 218 Mo. l. c. 622.] Those which need be discussed are, to-wit:
“2. Because the petition does not state facts sufficient to constitute a cause of action against this defendant.
The only questions which can arise on these demurrers are, first, whether the State has alleged a cause of action for itself; second, if so, whether that cause of action has been destroyed by the allegations in the petition that other suitors have similar causes of action which could be litigated herein if they should be permitted to become parties. These are the only ques-' tions which can arise on this appeal from a judgment finally dismissing plaintiff’s suit.
We will first inquire as to the right of the State to recover. If that shall be affirmed, then the first demurrer, which goes to the entire petition, must be overruled, for the rule is inexorable that a petition which states any cause of action, however defectively or imperfectly, is not subject to attack by a general demurrer. This is so elémentary and has been so repeatedly affirmed that we shall only call attention to two instances of the utterances of this court on the subject, to-wit:
“This court has repeatedly held that where the petition stated in the same or different' counts, several grounds for a recovery, it is error for the court to sustain a general demurrer to the petition.” [Johnson v. United Railways, 243 Mo. l. c. 288, per Wood-son, J.]
“Though the petition is very inartistically drawn, we regard its allegations as-tantamount to a cause of action defectively stated and not a defective cause of action; in which former case its defects cannot be taken advantage of by a general demurrer or its equivalent, an objection, as in this instance, because it does not state facts,” etc. [Water Co. v. City of Aurora, 129 Mo. l. c. 584, per Sherwood, J.]
The State as a public corporation is endowed with all the rights to sue in equity or at law which are pos
The facts stated in the petition, thus considered, disclose all the elements necessary to the recovery of a judgment or decree by plaintiff 'against the defendant for the amount claimed in the petition. This for the reason that by its general demurrer, not having filed any motion for indefiniteness, the defendant admits its indebtedness to' plaintiff in the amount and form alleged in the petition, or, as has been shown, that for seven years, and while defendant prevented the plaintiff from enforcing a valid law, it compelled the ¡fiaintiff, against the terms of that law, to pay defendant fifty thousand dollars made up of many distinct and various items forming a complicated account totaling fifty thousand dollars, all records of which in the possession of plaintiff have perished by fire, though a complete record thereof is in the control and custody of defendant.
In speaking of the essentials of a petition in equity, it was said by Gantt, J.: “It will be observed that the bill necessarily also calls for an accounting and discovery, which is everywhere recognized as another ground for equitable relief.” [Hagan v. Bank, supra, l. c. 337.] So in a case where the court was powerless to compel a non-resident corporation
Measured by these standards, it cannot be that the petition of plaintiff, as herein analyzed, fails to state a cause of action, cognizable either in equity or at law, for the amount which defendant illegally took from the plaintiff in the overcharges exacted for seven years. [McGrew v. Railroad, 230 Mo. l. c. 531; State ex rel. v. Railroad, 176 Mo. l. c. 717; Transportation Co. v. Sweetzer, 25 W. Va. 434" court="W. Va." date_filed="1885-03-21" href="https://app.midpage.ai/document/w-va-transportation-co-v-sweetzer-6593148?utm_source=webapp" opinion_id="6593148">25 W. Va. 434; Heiserman v. Railroad, 63 Iowa, 732" court="Iowa" date_filed="1884-04-10" href="https://app.midpage.ai/document/heiserman-v-burlington-cedar-rapids--northern-railway-co-7101029?utm_source=webapp" opinion_id="7101029">63 Iowa, 732; Southern Ry. v. Ala. R. R. Com., 196 Fed. l. c. 560; Bellamy v. Railroad, 220 Fed. l. c. 878; Coal Co. v. Railroad, 52 F. 716" court="None" date_filed="1892-11-07" href="https://app.midpage.ai/document/winsor-coal-co-v-chicago--a-r-co-8845092?utm_source=webapp" opinion_id="8845092">52 Fed. 716.] The naked facts of the relations between the State, the only party plaintiff, and the defendant, pleaded in the petition, if proven, would have entitled the State as plaintiff to a judgment in the trial court. Those facts were sufficiently stated under the settled rules of pleading. [1 Cyc. 436.] A general demurrer can only lie for the total failure of the petition to state any ground whatever for relief, either at law or in equity. After excluding from the petition all matters of surplusage, there remains embossed on its face the statement of a clear, complete and concrete case for relief by the State for itself against the defendant, for an accounting in equity or upon assumpsit at law for money had and received. Necessarily, therefore, the demurrer for that the petition stated no cause of .action should have been overruled. [Taylor v. Railroad, 207 Mo. l. c. 500; Otto v. Young, 227 Mo. l. c. 218; Bank v. Lyons, 220 Mo. l. c. 550; State ex rel. v. Tittmann, 103 Mo. l. c.
For the error of the trial court in sustaining the demurrer and dismissing plaintiff’s suit for itself, and rendering final judgment for defendant, this cause should be reversed and remanded.
n.
The right of the State to recover for itself being indisputable under the facts stated in its petition showing the nature and extent of the loss caused to it by the wrongdoing of defendant, it only remains to inquire whether it has lost that right by inviting other persons to become parties hereto for the purpose of asserting their own claims.
This question is made by the second and special demurrer (E. S. 1909, sec. 1801) quoted above.
Neither the prayer of a petition nor any exhibits thereto are subject to a demurrer. Nothing is open to that objection but the stating part of the petition. [Curry v. Lackey, 35 Mo. l. c. 392; Saline Co. v. Sappington, 64 Mo. 72" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/saline-county-v-sappington-8005493?utm_source=webapp" opinion_id="8005493">64 Mo. 72; Merrill v. Trust Co., 46 Mo. App. l. c. 242.] After setting out specifically its own cause of action against the defendant, the State alleged in substance that divers persons have been similarly injured by defendant, and invited them to become parties to the action and set up their respective claims. It is this reference in the petition to outsiders that constitutes the ground of the special demurrer now under review. This is apparent from the language of the demurrer, which specifies that the “petition has improperly united alleged claims or alleged causes of action of persons not named as parties plaintiff to said suit.” That form of stating the objection is as' far as the demurrer could go, since the only party to the petition is the plain-tiff, and.its cause of action is
The answer to this special demurrer and to the other repetitions and variations of it wherein the defendant averred multifariousness and misjoinder of causes of action is, that no such defects are in the present suit by one plaintiff against one defendant, and where only one cause of action has been alleged. “When, if ever, other parties shall appear and state their respective causes of action, the defendant may demur and obtain a ruling on a point not now presented by the petition. Our conclusion is that all the demurrers upon the assumption of multifariousness or misjoinder are bad for the reason that no such defects are contained in the present petition. Exactly the same ruling was made by the Supreme Court of North Carolina in a stronger case, for there the bill of plaintiff mentioned the names and causes of action of three other parties, on whose behalf, as well as his own, he prayed for a decree against the defendant, asking that they be allowed to come in and join him. In the decision of the case said the court: (Nash, J.) “The first cause assigned in the demurrer, is answered by the demurrer itself. It is, that the plaintiff has asked the court to provide for the relief of Chestnut, Robin
The demurrers in the case at bar are not well taken for another reason. The Supreme Courts of the United States (Brown v. Trust Co., 128 U. S. l. c. 412) and of this State (McGlothlin v. Hemery, 44 Mo. l. c. 355) have established the rule that in the nature of things multifariousness or misjoinder of causes of action cannot exist except there be two more causes of action united in one petition, each of which, as stated, will support a judgment. In the present petition only one cause of action is alleged. No other cause of action is stated, and no other party than the State is made a plaintiff to the present petition, hence it cannot be that it contains two or more distinct causes of action, each of which would support a judgment. All the demurrers interposed by defendant which purported to raise the questions of misjoinder or multifariousness are shown by the language of the petition to be purely anticipatory, since no such defects notv exist in that pleading. It may be that the defendant was entitled to object to the allegations with reference to future joinder of other persons in the present suit, by a motion to strike them out as irrelevant and redundant. But defendant did not avail itself of that defense, which, if sustained, would not have affected the con
Our conclusion is that there is no theory resting on reason or law which authorized the action of the trial judge in dismissing the suit of the plaintiff in this case, and entering judgment for defendant, and that his judgment should be reversed and the cause remanded, to be proceeded with in a manner consistent with these views.
III.
What has been said disposes of all the questions presented by the record in the present appeal. Another question not appearing in the record has been argued in the brief of respondent and must arise on a re-tria.1 of this case. That question is whether the right of the State to recover the money wrong
If this were an action on the bond, or a motion under the statute to assess damages proximately caused by the injunction, then the bond given would be the measure of the liability of defendant, in the absence of any evidence that the injunction suit was a malicious abuse of process, although the damages sustained exceeded the amount of the bond. [R. S. 1909, sec. 2524-2525; City of St. Louis v. Gaslight Co., 82 Mo. 349" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/city-of-st-louis-v-st-louis-gaslight-co-8007938?utm_source=webapp" opinion_id="8007938">82 Mo. 349; Holloway v. Holloway, 103 Mo. l. c. 284; Commission Co. v. Spencer, 236 Mo. l. c. 630; 2 High on Injunction (4 Ed.), see. 1663.] But that rule has no application where, as in this record, the suit is not brought for injuries proximately caused by the injunction, but is brought to recover what the defendant exacted at its peril during the pendency of an injunction which was finally held to have been illegally awarded by the Supreme Court of the United States. What was the effect of the injunction in the Federal court? Simply to prevent the enforcement against this defendant of the State statutes regulating its charges. It could not and did not go further. The sole issue in the case was whether the State of Missouri had violated the Constitution of the United States in exercising its sovereign power to make laws for the internal regulation of its affairs. That issue was decided against the State by the lower Federal court, but its ruling was vacated and. set at naught by the Supreme Court of the United States. Pending the final word of that great tribunal, the defendant in this case took the chance of violating the Missouri statutes, and compelled this plaintiff to pay fifty thousand dollars, contrary to the terms of the Missouri statutes. This was in violation of the law by defendant, who did it with imputed knowledge that
The plight of the defendant in this respect is not so good as the state of a party who has received money or property under a judgment which was subsequently reversed (for here the illegal charges began before a judgment nisi) yet in such cases the rule is unquestioned that the property so obtained must be restored to the owner. [2 Freeman on Judgments, sec.
This differentiation of the claim of the State for the overcharges specified in its petition, from injuries proximately caused by the writ of injunction, is not only the necessary result of analytical reasoning on the subject, but has been affirmed in a recent decision by the United States Circuit Court of Appeals. [Bellamy v. Railroad, 220 F. 876" court="8th Cir." date_filed="1915-03-08" href="https://app.midpage.ai/document/bellamy-v-st-louis-i-m--s-ry-co-8794677?utm_source=webapp" opinion_id="8794677">220 Fed. 876.] Certain railroads bad attacked the rate laws of the State of Arkansas by injunction in a Federal court of first instance. Upon appeal to the Supreme Court of the United States the Arkansas laws were fully upheld. Thereupon certain shippers brought actions to recover overcharges from the railroad, in the State court (declining to sue on the bond given in the Federal court). The railroad undertook to remove that cause to the Federal court. Upon appeal to the Federal Court of Appeals the cause was remanded to the State court. Said that court, in passing on the question as to whether the injunction bond was limitative of the rights of plaintiff: “Parties from tvhom excessive rates had been exacted■ were not confined to suing on the bonds. They also had the right given them by law to recover the■ overcharges. That right %oas not destroyed, by the injunction, but was simply suspended. As soon as the injunction was out of the way the right and remedy for its enforcement stood the same as if the injunction had never been issued.”
No judicature has gone further than the Federal courts in restricting the right of defendant in an injunction suit to a recovery of damages caused by the injunction to a suit on the bond. With that in mind, the United States Circuit Court of Appeals grasped at once the distinction between damages caused by an injunction and injuries caused by the action or con
IY.
It is only necessary to say a word about the majority opinion. I understand it to concede the full right of the State in its corporate capacity to sue for the excess rates which it was compelled to pay defendant, just as any other person might. On that subject the language of the majority opinion is, to-wit: “Now, concluding, as we do, that both the State and these shippers and passengers can recover, the question is whether this petition is good against the demurrer lodged against it. . . . Under the facts pleaded, the State of Missouri is not suing in its governmental capacity. It is suing-just as any private corporation or individual would sue to recover money to which it alleges it is entitled. This petition gives the State and the shippers and passengers as plaintiffs in the petition.” The underlined statement concluding the above quotation is clearly incorrect. The petition does not give any plaintiff except the State itself. It merely asks that others having similar demands be “permitted” hereafter to come in. It does not even name such persons. This is important, for if they had been named as parties plaintiff, and if their claims had been so stated as to authorize a judgment in their favor, then the right to join them could have been questioned by a demurrer for misjoin
The learned majority opinion takes another view inconsistent with the statements of the petition, which is that the State in this case is asking to recover the demands of other persons without an assignment of their claims to it. This conception of the petition is utterly at variance with the language of that pleading, which goes no further than to say that other persons should be permitted to come into this case and collect their own. demands. There is no foundation in the petition for the statement that the State sought to recover judgment in its favor for the claims of any other person. On the contrary, the petition proposed that such persons alone should assert their own causes of action, and recover therefor in their own right. The only authority which is adduced in support of the foregoing incorrect view of the petition is the case of Oklahoma v. Railroad, 220 U.S. 277" court="SCOTUS" date_filed="1911-04-03" href="https://app.midpage.ai/document/oklahoma-v-atchison-topeka--santa-fe-railway-co-97388?utm_source=webapp" opinion_id="97388">220 U. S. 277. When that State was a territory, under the jurisdiction of Congress, a Kansas railroad (Act of Congress, July 4, 1884) was empowered to enter there upon condition that the company should not charge the inhabitants a greater rate of freight than was allowed in Kansas, nor a greater passenger rate than three cents per mile. Congress, however, expressly reserved the right to regulate such rates “until a State government . . . shall exist” and then such State government shall be authorized ‘ ‘ to fix and regulate such rates. ’ ’ After the State government of Oklahoma was organized, a railroad operated under this grant charged the inhabitants a greater rate for transporting oil and other products than was authorized by the laws of Kansas for such service. Wherefore, the State of Oklahoma, as such, brought its
For the foregoing reasons I cannot follow the views of the majority opinion. In this case the State is concededly damaged under the pleading to the extent of fifty thousand dollars. It has come into court setting out the constitutive facts showing that injury. No case has been cited precluding that recovery. It is the sole plaintiff; no others have appeared and pleaded the elements of their right to recover. No applications have been filed for permission to join and recover judgment for themselves by any citizen of the State; There has therefore been no misjoinder of causes of action, for only one has been stated, that of the State.
It follows that the judgment dismissing plaintiff’s suit was patently erroneous and should be reversed and the cause rem’anded.
Concurrence Opinion
SUPPLEMENTAL CONCURRING OPINION.
I write this supplemental opinion because I did not have the aid of the able dissenting opinion filed herein, of my learned associate, Judge Bond, filed some six or seven days after the majority and my concurring opinion therewith were handed down, and consequently could not anticipate the views he would express upon the important questions involved in this litigation.
When I wrote said concerning opinion I proceeded upon the assumption, which, as I understood it, was practically conceded by the majority, if not by the entire court, that four legal propositions were determined or decided by the majority opinion- — all of which were fully discussed and considered by all of us except Judge Bond, he being absent, before the opinion was written:
First, that the State and the various individuals who had been required to pay the excessive rates for passenger and freight transportation over and above the maximum statutory rates fixed by the Legislature for such transporation, were in fact parties to this litigation. And there can be no doubt of the fact that such was the understanding of the court and counsel
My learned associate in writing his dissenting opinion has evidently overlooked these important and controlling facts in this ease, which cannot and should not in fairness to the court or counsel, be overlooked or brushed aside in passing upon the character and sufficiency of the petition under the demurrer filed herein. At any rate, speaking for myself, I considered those persons parties to this suit, just as the State is a party thereto, and wrote my concurring opinion accordingly ; and state here that'the first intimation I received to the contrary, save by illustration in argument of counsel, is contained in the able dissenting opinion filed herein.
Moreover, I dare say that there is not a man, woman or child in this State who desires to recover the overcharges paid by them, but who believe and honestly believe that they are parties to this litigation and that whichever way it goes, they believe and feel that they will be bound thereby.
I also predict that if they should at this late date be convinced that they are not parties to this litigation . they will naturally believe they have been misinformed regarding that important fact.
I know from remarks frequently made by the learned Attorney-General and his able associates, that they also understand and believe that the individual
Second. That in a proper action the State and each and all individuals who have been unlawfully required to pay such excessive charges for passenger or freight transportation "within this State, may recover the same back from the proper railway company.
Third. That the bond or bonds filed in the injunction suits instituted in the United States District Court, at Kansas City, are foreign to and constitute no bar or interference whatever with the rights of said parties to recover back any or all of said illegal exactions.
Fourth. In my opinion my learned associate, as disclosed by his dissenting opinion, has read more extensively than deeply regarding the functions of a bill of discovery. I have never understood that such a bill was ever designed to reach the matters he refers to.
Subpoenas duces tecum will reach each and every matter to which the dissenting opinion refers and therefore there is no reason or authority to resort to an extraordinary remedy to reach them. [State ex rel. v. Trimble, 254 Mo. 542" court="Mo." date_filed="1914-02-10" href="https://app.midpage.ai/document/state-ex-rel-atchison-topeka--santa-fe-railway-co-v-trimble-8018632?utm_source=webapp" opinion_id="8018632">254 Mo. 542.]
Fifth. That there is a defect of parties plaintiffs and defendants to this suit and an improper joinder of improper causes of action in the same petition, there can be no question, under the rules of pleadings in this State.
For this reason and for this-alone I believe and so expressed myself that the petition filed herein was had upon demurrer. That it is multifarious and therefore violative of the common-law rules of-pleading and the fourth and fifth paragraphs of section 1800, Revised Statutes 1909, there can be no question. They read as follows: “Fourth, that there is a defect of
These provisions of our code of civil procedure were intended to prevent and in my opinion properly so, the violation of the old principle of the common-law rules of pleading prohibiting multifariousness.
This ancient principle is so well known to both the bench and bar, as laid down by the old masters of the art of pleading, such as Chitty, Could, Stephens and more recently the late Judge Bliss of this court, who by the way, was one of the best and ablest jurists who ever sat upon this or any other court of last resort in this country, that it needs no further comment. •
From the inception of the jurisprudence of this State under both the common law and statutory rules of pleadiug, the petition or bill filed in this case is bad upon demurrer, as the numerous adjudications of this court clearly show. Some of the more recent cases involving this rule of pleading and adhering to the doctrine of multifariousness, as announced by the test-writers and confirmed by the statutes of this State are the following: Chaput v. Bock, 224 Mo. 73" court="Mo." date_filed="1909-11-29" href="https://app.midpage.ai/document/chaput-v-bock-8017033?utm_source=webapp" opinion_id="8017033">224 Mo. 73; Peniston v. Press Brick Co., 234 Mo. 698" court="Mo." date_filed="1911-06-01" href="https://app.midpage.ai/document/peniston-v-hydraulic-press-brick-co-8017547?utm_source=webapp" opinion_id="8017547">234 Mo. 698, and Trefny v. Eichenseer, 262 Mo. 436" court="Mo." date_filed="1914-12-02" href="https://app.midpage.ai/document/trefny-v-eichenseer-8019056?utm_source=webapp" opinion_id="8019056">262 Mo. 436, l. c. 442.
In the last case cited our brother, Judge Lamm, recently retired from this bench, speaking for the entire court, Bond, J., in result, said:
“By parity of reasoning, in the latter aspect of the case, the reasons underlying the rule against multifariousness are in point. To illustrate: Under our Code there can be but one final judgment, no matter how many issues are framed in several counts. ‘ The judgment upon each separate finding shall await the trial of all the issues.’ [R. S. 1909, sec. 1971.] Agreeable to that theory is section 2097, Ibid. Now, when different causes of action are bundled in one petition
This same rule has been so frequently and clearly announced by this court in scores of cases from that of Wilkson v. Blackwell, 4 Mo. 428" court="Mo." date_filed="1836-06-15" href="https://app.midpage.ai/document/wilkson-v-blackwell-6609744?utm_source=webapp" opinion_id="6609744">4 Mo. 428, down to the case just quoted from, it seems to me that it would be a piece of affrontery on my part to the intelligence and legal learning of the bench and bar of the State, to undertake, at this time, to add anything new or more convincing as to the existence of that rule and its applicability to the facts of this case to what has been so ably and clearly stated in the cases cited and the scores of others.
For the reason stated I still concur in the majority opinion.