Park Transp. Co. v. Missouri State Highway Com'n

• Decision Date: 19 April 1933
• Docket Number: 32699
• Parties: Park Transportation Company, a Corporation, Appellant, v. State Highway Commission et al
• Court: Missouri Supreme Court

60 S.W.2d 388

332 Mo. 592

Park Transportation Company, a Corporation, Appellant, v. State Highway Commission et al

No. 32699

Supreme Court of Missouri

April 19, 1933

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed.

J E. Turner for appellant.

The defendants, having filed a general demurrer to plaintiff's petition, thereby admitted that all well-pleaded facts in said petition were true. Butler v Lawson, 72 Mo. 248; Wolff v. Ward, 104 Mo. 153; Dodson v. Lomax, 115 Mo. 559. The rule for interpreting and construing a legislative act is that, as nearly as possible to ascertain, the intention of the Legislature should be carried into effect, and the statute so construed as to carry out the same, with the proviso that where there is in the same statute a particular enactment and also a general one, the particular enactment includes the general and the particular enactment must be operative and controlling. Art. II, R. S. 1929; De Hart v. School District, 214 Mo.App. 656; Boyd v. J. M. Ward Furniture, Stove & Carpet Co., 38 Mo.App. 217; St. Louis v. Lane, 110 Mo. 260; King's Lake Drainage & Levee District v. Jamison, 176 Mo. 565. Plaintiff being engaged in hauling road material to be used in the construction of public highways and roads in Missouri, and occasionally finding it temporarily necessary to haul over-length road material on its trucks, tractors and trailers to the points of road construction, it has a right to do so without a permit from the defendant, Missouri State Highway Commission. Sec. 7787, Laws 1931, p. 265. The plaintiff, being engaged in hauling road material to various points of road construction in the State of Missouri and transporting said material from the producing plant to the point of road construction without delay and with a minimum cost, is thereby engaged in promoting the general welfare of the people and has a constitutional and legal right to do so. Sec. 7787, Laws 1931, p. 265; Sec. 4, Art. IV, Const. of Mo. The plaintiff, being a resident of this State engaged in transporting road material going into the public roads of Missouri, has a right to do so without being unlawfully stopped, searched and its trucks seized and held, and its property rights destroyed or damaged. Sec. 2, Art. II, Const. of Mo. The plaintiff, having written contracts for large amounts that pay it a profit for transporting road material by means of its trucks, tractors, trailers and semi-trailers upon and over the public highways of this State, has a right to do so without having its property, money or property rights or profits taken or damaged by having its trucks searched, seized, taken and held, and the Missouri State Highway Commission has no right to take or damage plaintiff's property in that manner while it is engaged in transporting road material, and said Commission has no right to deprive plaintiff of its liberty or property in that manner. Secs. 21, 30, Art. II, Const. of Mo.; Fifth and Fourteenth Amendments of the Const. of the U.S. of America.

John W. Mather, Chief Counsel, and John C. Collet, Assistant Counsel, for State Highway Commission; D. D. McDonald, General Counsel, and G. C. Murrell, Assistant Counsel, for Public Service Commission; Roy McKittrick, Attorney-General, and William Orr Sawyers, Assistant Attorney-General, for Lewis Ellis.

(1) While it is true that a general demurrer admits all the well pleaded facts contained in the petition, conclusions of the pleader, allegations of immaterial facts, and the like, do not come within the classification of well pleaded facts and are not admitted by the demurrer. Normandy Consol. School Dist. of St. Louis County v. Harral, 315 Mo. 602, 286 S.W. 90; Stephens v. Mound City Liverymen & Undertakers Assn., 295 Mo. 596, 246 S.W. 42; Jewel Realty Co. v. Diercks, 18 S.W.2d 1043; State ex rel. Kansas City v. Burney, 324 Mo. 363, 23 S.W.2d 117; 49 C. J. p. 56, sec. 30; 49 C. J. p. 438, sec. 545; Weller v. Lumber Co., 176 Mo.App. 248; Mannes v. Norse, 338 Ill. 327; Buholtz v. Railroad, 47 S.D. 512, 199 N.W. 785; Miller v. Railway Co., 299 Pa. 63, 149 A. 86. (2) The facts properly alleged in plaintiff's petition are not sufficient to confer jurisdiction upon a court of equity because: (a) Injunction will not lie to restrain the enforcement of the criminal law. State ex rel. v. Wood, 155 Mo. 449; State ex rel. Chase v. Hall, 297 Mo. 600, 250 S.W. 64. (b) The petition states no facts showing an impending multiplicity of suits or irreparable injury. State ex rel. v. Wood, 155 Mo. 449; State ex rel. v. Burney, 324 Mo. 363, 23 S.W.2d 117; Normandy Consol. School Dist. of St. Louis Co. v. Harral, 315 Mo. 602, 286 S.W. 90; Halke v. Herman, 87 Mo.App. 134; Stegmann v. Weeke, 279 Mo. 131; State ex rel. Chase v. Hall, 297 Mo. 600, 250 S.W. 54. (3) The petition does not state facts sufficient to authorize injunctive relief upon the ground that the State Highway Commission threatens an abuse of discretionary powers. (a) There is no allegation that the Highway Commission has threatened to do the things charged. State ex rel. Reynolds County v. State Highway Comm., 42 S.W.2d 194; Gibson v. Chicago Great Western, 125 S.W. 453. (b) There are no facts pleaded showing that the alleged threatened acts would constitute an abuse of discretion. Normandy Consol. School Dist. of St. Louis County v. Harral, 315 Mo. 602, 286 S.W. 90; Stephens v. Mound City Liverymen & Undertakers Assn., 295 Mo. 596, 246 S.W. 42; State ex rel. v. Wood, 155 Mo. 449; Jewel Realty Co. v. Diercks, 18 S.W.2d 1043. (4) The unconstitutionality of the law furnishes no ground for injunctive relief. State ex rel. v. Wood, 155 Mo. 449. (5) Even if the constitutionality of Section 7787 is a proper matter for consideration in an injunction suit, that section is not unconstitutional. (a) It does not violate Sections 4, 21 and 30 of the Constitution of Missouri or Section 1 of Amendment 14 of the Federal Constitution. Swartzmann Service, Inc., v. Pub. Serv. Comm., 60 F.2d 1034; Sproles v. Binford, 52 S.Ct. 581; Hendrick v. Maryland, 235 U.S. 622, 59 L.Ed. 391; Kane v. New Jersey, 242 U.S. 167, 61 L.Ed. 227; Morris v. Duby, 274 U.S. 143, 71 L.Ed. 971; People v. Thompson, 341 Ill. 169; Packard v. Benton, 364 U.S. 145, 68 L.Ed. 608; State v. Railroad Co., 242 Mo. 339, 147 S.W. 118; State v. Merchants Exch., 269 Mo. 346, 190 S.W. 903. (b) Section 7787 is not in conflict with Section 11 of the Constitution of Missouri or Amendment 5 of the Constitution of the United States. State v. Owens, 302 Mo. 348, 259 S.W. 101; State ex rel. v. Anderson, 270 Mo. 533, 194 S.W. 268. (6) Plaintiff's trucks being engaged in the business of regularly transporting road materials throughout the State do not fall within the classification defined in the exception to Section 7787, relating to trucks temporarily transporting road materials, and hence, plaintiff's trucks must have permits for the hauling of over-length loads. (a) Definitions of the word "temporary." 3 Bouvier's Law Dictionary (3 Ed.) p. 3254; 27 American and English Enc. of Law (2 Ed.) p. 1097; Slack v. Jacob, 8 W.Va. 650; Pickens v. Coal River Boom, etc., Co., 51 W.Va. 450; Ballentine's Law Dictionary, p. 1267; 8 Words and Phrases (1 Ed.) p. 6901; 4 Words and Phrases (2 Ed.) p. 866. The word "permanent" distinguished and defined: 3 Bouvier's Law Dictionary (3 Ed.) p. 2568. (b) Definition of the terms "contract hauler" and "irregular routes." Sub. Secs. C and H, sec. 5264, Laws 1931, pp. 304-305. (c) The statutory definitions of the terms "contract hauler" and "irregular routes" will be read into the petition as descriptive of those terms. Pipes v. Railroad, 267 Mo. 393, 184 S.W. 79; Shohoney v. Railroad Co., 132 S.W. 1062.

Hays, J. All concur, except Leedy, J., not sitting.

OPINION

HAYS

This is an appeal from a final decree of the Circuit Court of Cole County dismissing a suit brought to enjoin interference with the plaintiff's motor trucks in the hauling of what may be termed overlength loads upon the highways of this State. The decree of dismissal was rendered upon demurrer to the bill. The suit is brought against the State Public Service Commission, the State Highway Commission, together with the individuals composing the membership of each, and also the superintendent of the State Highway Patrol.

The plaintiff (appellant), a private business corporation of Missouri, is a licensed "contract hauler," and as such is engaged in hauling road material by motor trucks upon the public highways, over irregular routes throughout this State, and now and then transporting from supply houses overlength loads of road material on its trucks for necessary use in the construction of the State's highways at different times and places. The appellant's claimed right to transport overlength loads of such material without special permits from the Public Service Commission has been and is denied, by the respondents, its trucks stopped and delayed, its drivers arrested and summoned into court, and threatened with a continuation of such measures upon the trucks being so operated without such special permits. The State Highway Commission is alleged to have "arbitrarily notified appellant it would not issue permits for the making of such hauls from said supply houses to said points of use in road construction, but would compel all shipments of road material of above lengths and longer and other road material to be made by rail to the nearest railroad station to the points of highway construction." And that "said arbitrary attitude and ruling of said defendants deprive appellant of its property rights, its liberty and privileges and the gains of its contracts, business and industry, without due process of law and without compensation, contrary to Section 7787 of Laws of Missouri,...