Bowen v. Missouri Pac. Ry. Co.

• Decision Date: 11 December 1893
• Citation: 24 S.W. 436,118 Mo. 541
• Parties: BOWEN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

24 S.W. 436

118 Mo. 541

BOWEN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 11, 1893.

STATUTES — REVISION — COMPILATION OF VOID ACT.

1. Act June 16, 1887, which requires switches, frogs, and guard rails to be properly blocked, and which was declared void by the courts because not within the subjects of legislation designated by the governor calling the extra session at which it was passed, is not rendered valid by the fact that it was brought forward and placed in the Revised Statutes by the committee of revision appointed to compile, arrange, and publish the statutes, without ever having been re-enacted by the legislature.

2. The act being void when first passed, the mere fact that it was copied into the Revised Statutes does not prima facie establish its validity, unless it is shown that it was reenacted by the legislature at some regular session.

3. When, on appeal, the existence of a statute is called in question, the supreme court is not confined to the statutes as they are published, but may examine the rolls in the office of the secretary of state, though they were not produced in evidence at the trial, since the courts are required to take judicial notice of statutes.

Appeal from circuit court, Gasconade county; Rudolph Hirzel, Judge.

Action by Sarah B. Bowen against the Missouri Pacific Railway Company for her husband's death. From a judgment for plaintiff, defendant appeals. Reversed.

H. S. Priest and Wm. S. Shirk, for appellant. Ryors & Vosholl and I. W. Boulware, for respondent.

BLACK, C. J.

The plaintiff brought this action to recover damages for the death of her husband, who was a switchman in the employ of the defendant at its yards in the town of Chamois. The substantial averments of the petition are that defendant failed and neglected to have the space between a guard rail and a track rail blocked, by reason of which the foot of deceased was caught, causing injuries from which he died on the same day, — that is to say, the 24th March, 1891. The petition is based on the act of June 16, 1887, passed at the extra session of the general assembly of that year, entitled "An act to provide for the preventation of accidents to railroad employes and others, by requiring that switches, frogs and guard rails be properly blocked." The act contains two sections, both of which were carried into the Revised Statutes of 1889, and appear there as sections 2627 and 2628.

The validity of these sections is assailed by the defendant, and this presents the first and principal question in the case. In Wells v. Railway Co., 110 Mo. 286, 19 S. W. 530, we held the above-mentioned act unconstitutional, and therefore void, because the subject-matter of the act did not come within the subjects of legislation designated in the proclamation of the governor calling the special or extra session at which it was enacted. It must be taken as now settled that the act was invalid as first passed, and this brings us to the revision of 1889. According to the schedule of revised and unrevised bills found in the second volume, at page 2229, chapter 42, which relates to corporations, was passed by way of a revised bill, and sections 2627, 2628, are a part of the second article of that chapter. But a diligent examination of the statute rolls in the office of the secretary of state discloses the fact that article 2 was not passed by way of a revised bill. Indeed, the examination shows that sections 2627, 2628, were not re-enacted at that session, by way of a revised bill, or otherwise. The two sections of the act were simply brought forward and placed in article 2 by the committee on revision, which was appointed to compile, arrange, and publish the statutes after the adjournment of the general assembly. That committee had no legislative power conferred upon it, for the legislature could not, and indeed did not attempt to, delegate to it any such powers. The fact that the committee brought the said act forward and placed it in the Revised...