Humes v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 221
• Parties: HUMES v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 221

HUMES

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Thos. J. Portis for appellant.

The statute under which this suit was instituted, and by virtue of the provisions of which the judgment was rendered is in conflict with the constitutions of Missouri and of the United States. (1) The powers of the legislature in this State are expressly limited by the constitution of 1875. Const., art. 4, § 1. The law in question violates section 20 of article 2 of the constitution, which declares “that no private property can be taken for private use with or without compensation, unless by consent of the owner.” There was no such provision in the constitution of 1865. Cooley's Const. Lim., (3 Ed.) 357; Taylor v. Porter, 4 Hill 140; Osborn v. Hart, 24 Wis. 91; Bloodgood v. Railroad Co., 18 Wend. 59; Dickey v. Tennison, 27 Mo. 374; County Ct. v. Griswold, 58 Mo. 193; People v. Morris, 13 Wend. 328; Sadler v. Lanham, 34 Ala. 320; Lane v. Dorman, 3 Scam. 288; In re Albany Street, 11 Wend. 149; People v. White, 11 Barb. 30. (2) The law involved here is, also, in conflict with article 2, section 30 of the constitution of 1875, which provides “that no person shall be deprived of life, liberty or property without due process of law. Cooley's Const. Lim., (3 Ed.) p. 352; Hoke v. Henderson, 4 Dev. 15; Taylor v. Porter, 4 Hill 140; Jones v. Perry, 10 Yerg. 59; Ervine's Appeal,16 Pa. St. 256; Lane v. Dorman, 3 Scam. 238; Reed v. Wright, 2 Greene (Ia.) 15; Comm. v. Byrne, 28 Gratt. 165; Dartmouth College v. Woodward, 4 Wheat. 519; 4 Wheat. 235; 60 Me. 509; 2 Yerg. 260; 23 Wis. 478; 13 N. Y. 432; 5 Nev. 302; 20 Wall. 663; 6 Otto 101. (3) The law is also in conflict with article 4, section 53 of the constitution of 1875, which declares that “the general assembly shall not pass any local or special law authorizing the granting to any corporation, association or individual any special or exclusive right, privilege or immunity. A. & N. R. R. Co. v. Baty, 6 Cent. L. J. 148; Cooley's Const. Lim., 392; Vanzant v. Waddell, 2 Yerg. 260; Ervines' Appeal,16 Pa. St. 266. (4) The act is unconstitutional in that if it is a penal statute, ( Barret v. Railroad Co., 68 Mo. 56,) the whole amount of the penalty recovered on it is diverted from the school fund to which it belongs under article 2, section 8 of the constitution. Dutton v. Fowler, 27 Wis. 427. (5) It is in conflict with the 14th amendment to the Federal constitution. County of San Mateo v. Railroad Co., 8 Am. and Eng. R'y Cases 21; s. c., 13 Fed. Rep. 782.

T. K. Skinker, for respondent.

This cause having come to this court on constitutional questions, the court can consider no others. Eyerman v. Blaksley, 78 Mo. 145; Montgomery v. Hernandez, 12 Wheat. 129; Udell v. Davidson, 7 How. 769; Rector v. Ashley, 6 Wall. 142; Gibson v. Chouteau, 8 Wall. 314. The defendant waived the right to raise the constitutional questions urged by it as to the double damage act by accepting its corporate existence thereunder. Cooley Const. Lim. (5 Ed.) *181, 182; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 468; Baker v. Braman, 6 Hill, 47; Embury v. Conner, 3 N. Y. 511; Detmold v. Drake, 46 N. Y. 318; Ferguson v. Landram, 5 Bush. 230; Dewhurst v. Allegheny,95 Pa. St. 437; Bidwell v. Pittsburg,85 Pa. St. 412; Burlington v. Gilbert, 31 Iowa, 356. The act (section 43) does not violate section 1, article 14 of the amendments to the Constitution of the United States, nor section 30, article 2, nor section 7, article 11 of the Constitution of Missouri, of 1875. Barnett v. Railroad Co., 68 Mo. 58; Cummings v. Railroad Co., 70 Mo. 570; Spealman v. Railroad Co., 71 Mo. 434. Neither does said 43rd section violate section 20, article 2 of our present constitution. The precise point here made by appellant is that any recovery by a party injured over and above the actual damage sustained is the taking of its property for plaintiff's private use. The constitutional provision invoked cannot refer to the taking of property in satisfaction of a debt or claim for damages, for it makes the right to take it depend on the consent of the owner from which the absurd conclusion would follow that the property of a debtor or wrong-doer could not be taken, except by his consent. When the present constitution was adopted, it had become the settled policy of the State, whenever it appeared to the legislative mind to be necessary to the execution of the laws to give persons injured by their violation an action for double damages, treble damages, or damages assessed on some other basis in excess of those actually sustained. The 43rd section does not violate section 53, article 4, of the State Constitution. 1st. Because it is not a local or special law. 2nd. Because it does not grant to any corporation, association, or individual, any special or exclusive right, privilege, or immunity. Snyder v. Warford, 11 Mo. 517. If it named a particular class, such as farmers, as the sole beneficiaries of its provisions, it would probably not be unconstitutional. Class legislation is not necessarily unconstitutional. If it were our mechanic's lien laws, and many others of a similar character, would have to go. Davis v. State, 3 Lea 380. But this section does not go even so far as this. The benefits of the provisions are open to all--even to railroad companies; for if a railroad company should own a mule, and he should be killed on the track of another company, the former could recover under this statute.

PHILIPS, C.

This is an action instituted in the circuit court of the city of St. Louis under what is popularly known as the 43d section of the general corporation law of this State, for double damages for killing plaintiff's mule on defendant's railroad. The plaintiff recovered judgment for $135, which on motion of plaintiff was doubled by the court and judgment entered accordingly. From this judgment the defendant appealed to the court of appeals where the judgment of the lower court was affirmed pro forma. Defendant has brought the case here on appeal.

I. This court is invited by appellant, in a most elaborate and creditable argument, to again consider and determine the constitutionality of said 43d section. The constitutionality of this section of the statute was fully considered and affirmed in the case of Barnett v. Railroad Co., 68 Mo. 56, which was followed in Cummings v. Railroad Co., 70 Mo. 570. But counsel urge these decisions were under the constitution of 1865, quite unlike certain provisions of the constitution of 1875. The validity of this section under the constitution of 1875 was considered by Judge Hough in the opinion delivered by him in Barnett v. Railroad Co., in so far, at least, as the validity of the law was involved in giving the penalty over and above the actual value of the animal to the owner thereof instead of to the school fund as appellant now insists should be done. So the validity of this section was directly presented under the constitution of 1875 in the case of Spealman v. Railroad Co., 71 Mo. 434. The opinion in this last case was written by Norton, J., who was an active and prominent member of that convention. The questions presented therein for determination were the effect upon this statute of article 5 of the amendments to the constitution of the United States, which declares that “no person shall be deprived of life, liberty or property without due process of law”; also of article 14 of the Federal constitution which provides that “no State shall deprive any person of life liberty or property without due process of law;” and, also, of article 11, section 8 of the constitution of 1875 of Missouri which provided inter alia that “the clear proceeds of all penalties and forfeitures, etc., shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund.” To his opinion from his high vantage ground, I should hesitate to oppose any antagonistic view of my own touching the points decided. By these adjudications I feel bound. No view entertained by me, if dissentient, could avail the appellant. I shall, therefore, discuss only such questions raised by the appeal as are not within the matters so adjudicated by this court.

II. It is now urged that the double liability clause of section 43 is repugnant to section 20 of article 2 of the constitution of 1875 which declares: “That no private property can be taken for private use, with or without compensation, unless by the consent of the owner.” This provision, in so many words, was not in the constitution of 1865. It is contended that so much of the damages allowed the owner of property injured by a railroad as exceeds its actual value is, in effect, taken from the company without compensation to it and against its assent. The logic of this argument literally taken, would exempt the company offending from single damages, for it receives no compensation at all where it merely destroys the property of the citizen and gives, presumably, only an enforced assent to making restitution in single damages. It would apply with equal force, looking alone to the literal language of the constitution, to any taking of property in satisfaction of any claim for damages. As the right to take it is made to depend on the consent of the party, the result would follow that the injured party could not recover any damage from the wrong-doer. We do not think this provision of the constitution was aimed at section 43, or its cognates to be found in the statute. We can conceive of a more rational purpose in its adoption, predicated of the history of the adjudications by the courts of this State, as well as the current history of the times developing so many devices and schemes by individuals, legislatures and municipalities to obtain private property against the owner's consent for purely private purposes. It was, for instance,...