Cohn v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 05 December 1910
• Parties: COHN et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

133 S.W. 59

151 Mo. A. 661

COHN et al. v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

December 5, 1910.

On Rehearing, January 3, 1911.

1. CARRIERS (§ 2) — REGULATION — STATUTES.

Rev. St. 1899, § 1126 (Ann. St. 1906, p. 971), prohibiting a carrier from charging for transporting goods a larger amount than is charged for the transportation of similar quantities of the same class of goods over a greater distance on the same road, regulates freight charges in any direction on the same road, as applied to shipments of the same class of property in similar quantities, and is not repealed by sections 1129, 1130, 1133, 1134 (Ann. St. 1906, pp. 973-975), prohibiting a carrier from charging more for transporting a car of freight, than it charges per car for several cars of a like class of freight; prohibiting rebating; making it unlawful for any carrier to give any undue preference to any person in the transportation of goods, and making it unlawful for any carrier to charge any greater compensation in the aggregate for the transportation of like kinds of property under similar circumstances, for a shorter than a longer distance over the same line, in the same direction.

2. APPEAL AND ERROR (§ 1195) — LAW OF THE CASE.

A decision of the Supreme Court that a petition states a cause of action for a violation of Rev. St. 1899, §§ 1133, 1134 (Ann. St. 1906, pp. 974, 975), regulating carriers, rendered on appeal from a judgment sustaining a demurrer to the petition, is not a decision on the merits, and, where there is a failure to prove the facts alleged in the petition, there is a failure to establish a case for plaintiff.

3. STATUTES (§ 225¼) — CONSTRUCTION.

Where the Legislature enacted two statutes at one time, the court should not say that the Legislature intended that the two should mean one and the same thing.

4. STATUTES (§ 188) — CONSTRUCTION — MEANING OF WORDS.

The court, in construing a statute, should give it a reasonable construction, and the words and phrases therein must be taken, as required by Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), in their ordinary sense.

5. COURTS (§ 97) — DECISIONS — CONTROLLING DECISIONS.

A state court, in construing a state statute, is not bound by the construction placed thereon by the federal Supreme Court.

6. CARRIERS (§ 13) — REGULATION — VIOLATIONS.

To constitute a violation of Rev. St. 1899, § 1133 (Ann. St. 1906, p. 974), making it unlawful for any carrier to give any undue or unreasonable preference to any particular person in the transportation of goods, a carrier must give an undue and unreasonable preference, and the question whether it has done so must be determined after considering honest competition not caused by its own act, and the cost of service, and where a carrier is required to meet competition not caused by its own act, it may fix its rate to meet it, though the effect may cause shippers to pay more for a short haul than for a long one.

7. CARRIERS (§ 12) — REGULATION — VIOLATIONS.

To constitute a violation of Rev. St. 1899, § 1134 (Ann. St. 1906, p. 975), making it unlawful for any carrier to charge a greater compensation in the aggregate for the transportation of like kinds of property under similar circumstances, for a shorter than a longer distance over the same line in the same direction, a carrier must charge more for a short haul than for a longer one where the circumstances are similar, and, where there is honest competition not caused by it, it may fix its rates to meet the competition though it causes shippers to pay more for a short haul than for a longer one.

8. CARRIERS (§ 12) — REGULATION — VIOLATIONS.

A carrier giving preferences notwithstanding Rev. St. 1899, §§ 1133, 1134 (Ann. St. 1906, pp. 974, 975), prohibiting a greater charge for a shorter haul than for a longer one under similar circumstances and conditions, may consider river competition, though a steamboat carrier does not deliver the freight to the consignees, but the freight must be hauled in wagons from the river several miles away.

9. COURTS (§ 488) — CONSTITUTIONAL QUESTIONS — DECISION OF SUPREME COURT.

Where the Supreme Court determined that a constitutional question was not involved in a case, and then transferred it to the Court of Appeals for determination on the merits, a constitutional question could not be injected into the case in the Court of Appeals.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Peter Cohn and another, partners under the name and style of Cohn & Pelz, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiffs appealed to the Supreme Court, and it (131 S. W. 881) transferred the cause to the Court of Appeals. Affirmed.

E. R. Lentz, for appellants. Martin L. Clardy and James F. Green, for respondent.

GRAY, J.

Appellants instituted this action in the circuit court of Butler county, on the 20th day of March, 1899, to recover the penalties provided by sections 1133, 1134, Rev. St. 1899 (Ann. St. 1906, pp. 974, 975). A demurrer was filed to the petition, and the same was sustained, and the plaintiffs appealed to the Supreme Court, and the judgment was reversed and the cause remanded. The opinion on the former appeal will be found in 181 Mo. 30, 79 S. W. 961. A copy of the petition will be found in the opinion of the Supreme Court, and reference is made thereto for its allegations. When the cause was remanded, an answer was filed, containing first a general denial, and then a special defense, admitting the rates as alleged in plaintiffs' petition were the rates charged, but denying that the circumstances and conditions under which shipments were made to Poplar Bluff were similar to those made to Charleston, Sikeston, and the other points named in the plaintiffs' petition; that the other towns were located near the Mississippi river; and that defendant, in order to get any business at said points, was compelled to make the rates charged, in order to meet Mississippi river competition and the competition of the St. Louis & Southwestern Railroad Company. The parties failed to agree upon a referee, and the court appointed Hon. L. R. Thomason to hear and determine all the issues. On the 10th day of February, 1906, the referee filed his report, finding the facts as follows:

"That for more than three years prior to March 20, 1899, Peter Cohn and Sallie Pelz were copartners engaged in the general merchandise business in the city of Poplar Bluff, Butler county, Mo., under the firm name and style of Cohn & Pelz; and that Bertha Cohn is the duly appointed executrix of the estate of Peter Cohn, deceased, formerly a member of the said firm of Cohn & Pelz. That the defendant, the St. Louis, Iron Mountain & Southern Railway Company, is a corporation, organized under the laws of the state of Missouri, owning and operating a line of railroad from the city of St. Louis, Mo., to the city of Popular Bluff, Mo., and from the city of Poplar Bluff, Mo., to the city of Cairo, in the state of Illinois. That said railroad, running from the city of Poplar Bluff to the city of Cairo, runs or passes through the cities or towns of Dexter, Essex, Grays Ridge Morehouse, Sikeston, and Charleston, Mo., and that each of said cities or towns are stations on defendant's said line of railroad. That for more than three years prior to said 20th day of March, 1899, the defendant held itself out as such, and was in fact, a common carrier for the general public of freight and passengers for hire between said points and stations along the line of its said railroad. That St. Louis, Mo., is the northern terminus of the defendant's said line of railroad; that the distance from St. Louis, Mo., to Poplar Bluff, Mo., is 166 miles; that the distance from St. Louis, Mo., to Dexter, Mo., is 190 miles; that the distance from St. Louis, Mo., to Essex, Mo., is 195 miles; that the distance from St. Louis, Mo., to Grays Ridge, Mo., is 199 miles; that the distance from St. Louis, Mo., to Morehouse, Mo., is 205 miles; that the distance from St. Louis, Mo., to Sikeston, Mo., is 211 miles; that the distance from St. Louis, Mo., to Charleston, Mo., by way of the Belmont branch of defendant's line of railroad, is 178 miles, and by way of Poplar Bluff is 226 miles; that all of said stations are not on a direct line, but all are in the same general direction from the city of St. Louis, Mo., as is the city of Poplar Bluff, and a greater distance therefrom. I further find that prior to the 20th day of March, 1896, and until long after the 20th day of March, 1899, the defendant did publish and promulgate as its tariff rates to be charged, and that defendant did charge, collect, and receive for the transportation of the various classes of freight from the city of St. Louis, Mo., to the city of Poplar Bluff, Mo., as follows: On first class, the sum of 75 cents per hundred pounds; on second class, the sum of 58 cents per hundred pounds; on third class, the sum of 50 cents per hundred pounds; on fourth class, the sum of 40 cents per hundred pounds; and that during said time the defendant did publish and promulgate as its tariff rate to be charged, and that defendant did charge, collect, and receive, during the same time, for the transportation of the various classes of freight from the city of St. Louis, Mo., and shipped through Poplar Bluff, Mo., to the cities or towns of Dexter, Essex, Grays Ridge, Morehouse, Sikeston, and Charleston, as follows: On first class, 50 cents per hundred pounds; on second class, 35 cents per hundred pounds; on third class, 30 cents per hundred pounds; on fourth class, 25 cents per hundred pounds; that the defendant did charge and collect and require the said firm of Cohn & Pelz to pay on the various classes of freights as follows: On first class, 25 cents per hundred pounds; on second class, 23 cents per hundred pounds; on third class, 20 cents per hundred pounds;...