74 S.W. 854 (Mo. 1903), Cox v. Hannibal & St. Joseph Railroad Company

Citation:74 S.W. 854, 174 Mo. 588
Opinion Judge:BURGESS, J.
Attorney:Mosman & Ryan and Simrall & Trimble for appellant; O. M. Spencer of counsel. R. E. Ward and Claude Hardwicke for respondent.
Case Date:May 19, 1903
Court:Supreme Court of Missouri

Page 854

74 S.W. 854 (Mo. 1903)

174 Mo. 588




Supreme Court of Missouri, Second Division

May 19, 1903

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.


Mosman & Ryan and Simrall & Trimble for appellant; O. M. Spencer of counsel.

(1) Defendant's objection to the admission of any evidence under the petition, on the ground that the amendatory Act of 1883 was unconstitutional, null and void, should have been sustained. It was error to overrule such objection. (a) The Act of 1883 is unconstitutional in this, that the words to be inserted in section 810, Revised Statutes 1879, by said amendment, and which were in fact inserted in said section as it appears in said act, were not set forth in full in the prefatory clause of said Act of 1883 as required by section 34 of article 4 of the Constitution, which provides that, "The words to be inserted . . . together with the act or section to be amended, shall be set forth in full as amended." Our contention is, that these words mean, and can be satisfied only by setting forth the words "to be inserted" in the prefatory clause of the act, and again setting them forth in their proper place in the section as amended. (b) We are aware that this court, in Morrison v. Railroad, 96 Mo. 602, used language in arguendo that would seem to militate against this view, but as the amendment was not made by inserting words in that case, the precise point we raise could not be presented, and therefore was not decided. Besides this, the court in that case followed Mayor v. Trigg, 46 Mo. 288, and failed to note the difference between old section 35 of article 4 of the Constitution of 1865, and section 34 of article 4 of the Constitution of 1875. (c) It will not do to say that in the case at bar the amendment was by adding words, not by inserting words, and hence the command of the Constitution does not apply. Words added to the end of a section are as much inserted in that section as they would be if placed between two words in the middle of a line. Besides, the provision is remedial and protective, and the words used must be so construed as to promote the spirit and purpose of the section. Carson-Rand v. Stone, 129 Mo. 381; State v. King, 44 Mo. 283; State ex rel. v. Hostetter, 137 Mo. 649. (2) The amendatory law, as stated in the prefatory clause, was designed to cast upon railway companies the duty of removing or destroying all dead and dry vegetation and undergrowth upon their right of way lands, and it was enforced by an appropriate penalty, and by making the company liable for all damages done by the neglect of the duty to burn or remove the vegetation. But when the added words of the prefatory clause appeared in the section as amended, the words "so to clear up and burn such undergrowth and vegetation as required by," were stricken out, and in place of them was substituted the words "to comply with the provisions of," thus making it read "any corporation, company or person failing to comply with the provision of this section, shall incur a penalty not to exceed $ 500, and be liable for all damages done by said neglect of duty." As the existing section contained requirements as to ditches and drains, the effect of this change was to make the penalty apply to the failure to construct ditches and drains, as well as to the failure to destroy vegetation, and to give a right of action for failing to construct ditches, a thing not intended at all. We contend that this, to the members, unlooked-for result, was a fraud upon them, and an imposition on the people, and that the act, never having received legislative action, is null and void. (3) (a) Where the only title given is "an act to amend section 810," Revised Statutes 1879, without any words descriptive of the amendatory act, no legislation can be enacted that does not deal exclusively with, and is not germane to the original subjectmatter of the section, and as the burning or removal of vegetation is not germane to the construction of ditches, the Act of 1883 is necessarily unconstitutional and void. State ex rel. v. Heege, 135 Mo. 110; State v. Saline County, 51 Mo. 376. The title to the Act of 1883 gave no hint or suggestion that the section was to be amended by adding matter relating to an entirely new subject, wholly foreign to the original subject-matter of the section, and therefore the Act of 1883 is unconstitutional and void. (b) The rule of law is that where the parts of a law "sound and unsound, are so mutually related, so blended together, as to constitute an entirety, making it evident that unless the act be carried into effect as a whole, it could not have received the legislation," the whole act must fail. State v. Bockstruck, 136 Mo. 354. (4) As the Act of 1883 was unconstitutional, null and void for the foregoing reasons, the plaintiff is not entitled to recover. His right of action was given by the Act of 1883, and when that act fails, his right to maintain an action fails with it. He is then driven to pursue the remedies provided by section 810 as it stood in the revision of 1879, and can only proceed in the county court to secure the construction of the ditches and drains. The act of 1874 was in derogation of the common law. It created new rights which did not exist at common law. By the common law surface water was a common enemy which all might fight in their own way. Moss v. Railroad, 85 Mo. 86; Schnieder v. Railroad, 29 Mo.App. 75; Gray v. Schraber, 58 Mo.App. 173. This act changed the common law so far as relates to the construction of railroad embankments which obstructed the passage of surface water, and made it the duty of the company to construct ditches and drains to carry off such water, and to enforce this new duty the act provided a special remedy. The rule of law is that where a new duty which did not exist at common law is created by statute, and in the same act a remedy is provided for the enforcement of that duty, the special remedy must be pursued, and resort can not be had to the remedies provided by the common law. Baker v. Railroad, 36 Mo. 543; City v. Henry County, 115 Mo. 569; Hickman v. Kansas City, 120 Mo. 118.

R. E. Ward and Claude Hardwicke for respondent.

It is immaterial whether or not the amendment of 1883 was constitutional. The original act, before such amendment, made it the duty of defendant to construct and maintain the ditch. R. S. 1879, sec. 810. If such amendment was constitutional, then this was an action under the statute as amended; if such amendment was not constitutional, then this was a common-law action for damages caused by the neglect of defendant to perform a duty imposed by the Act of 1874. Failure to perform a duty enjoined by statute or...

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