Kansas City Terminal Ry. Co. v. Industrial Commission, No. 51322

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFINCH
Citation396 S.W.2d 678
PartiesKANSAS CITY TERMINAL RAILWAY COMPANY, Plaintiff-Respondent, v. The INDUSTRIAL COMMISSION of the State of Missouri, the Department of Labor and Industrial Relations, Don L. Cummings, Director, Division of Industrial Inspection, William J. Delahunty, Assistant Director, Division of Industrial Inspection, and Thomas F. Eagleton, Attorney General of the State of Missouri, Defendants-Appellants
Docket NumberNo. 2,No. 51322
Decision Date13 December 1965

Page 678

396 S.W.2d 678
KANSAS CITY TERMINAL RAILWAY COMPANY, Plaintiff-Respondent,
v.
The INDUSTRIAL COMMISSION of the State of Missouri, the
Department of Labor and Industrial Relations, Don L.
Cummings, Director, Division of Industrial Inspection,
William J. Delahunty, Assistant Director, Division of
Industrial Inspection, and Thomas F. Eagleton, Attorney
General of the State of Missouri, Defendants-Appellants.
No. 51322.
Supreme Court of Missouri, Division No. 2.
Dec. 13, 1965.

Page 679

Sam D. Parker, W. M. Stapleton, Kansas City, Harold L. Harvey, Gilbert A. Schuessler, Paul R. Moody, St. Louis, Forrest P. Carson, Jefferson City, for respondent.

Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for appellants.

FINCH, Judge.

This appeal involves a declaratory judgment action by plaintiff on its own behalf and as representative of a class, seeking to have Chapter 291 1 declared inapplicable to railroads, or, in the alternative, that the provisions of that chapter were repealed by implication by the enactment of the Public Service Commission Law in 1913. The trial court sustained plaintiff's motion for summary judgment, holding that the suit was maintainable as a class action, that Chapter 291 was inapplicable to plaintiff and other railroads similarly situated as a class, and that defendants should be enjoined from inspecting railroads or charging them an inspection fee. Defendants appealed. We have jurisdiction on the basis of the fact that state officers are parties and the constitutionality of statutes is in issue.

The facts as established by the pleadings and evidence offered on the motion for summary judgment are as follows: Plaintiff is a Missouri railroad corporation. The Director of Industrial Inspection of Missouri, one of the defendants, through his agents, inspected plaintiff's premises at the Union Station in Kansas City, Missouri. The Director then ordered plaintiff to pay the fee for such inspection prescribed by Sec. 291.130 in the amount of $39.00. The premises of plaintiff which were inspected consisted of portions of the offices, the subbasement facilities, and the docks and platforms at Union Station in Kansas City. Plaintiff refused to pay the inspection charge on the basis that said Director did not have jurisdiction to make the inspection in question. The Director continued to demand payment, citing an opinion of the Attorney General, expressed an intention to continue the inspection of railroad property in Missouri, and stated that refusal to pay the inspection fee constituted a misdemeanor. The filing of this suit followed.

An affidavit of the Secretary of the Public Service Commission of Missouri, filed in connection with the motion for summary judgment, recited that the Commission has issued General Orders 3, 24 and 40, which pertained to railroads, and that inspections are made by the Public Service Commission pursuant thereto or to insure compliance therewith. Copies of said General Orders were attached to the Secretary's affidavit and submitted to the court. The affidavit indicated that the Commission inspects shops, stations, docks, freight yards, engines, cars, and other physical properties and equipment of the railroads. In addition, reports of accidents are investigated. An affidavit of the Director of Industrial Inspection for Missouri, offered by defendants, stated that existing records of the Division dating back to 1941 show that railroads have been inspected by the Division continuously since that time. It stated further that the Division continued to inspect railroads after institution of this suit by plaintiff, and that members of the

Page 680

class purportedly represented by plaintiff have consented to these continuing inspections and have paid the prescribed inspection fees.

The first point urged by defendants is that the trial court erred in holding that this suit was maintainable as a class action. This point is well taken. Civil Rule 52.08, V.A.M.R., permits a class action where the persons constituting the class are very numerous or it is impracticable to bring them all before the court and the right sought to be asserted is joint, common, or several, with a common question of law or fact. It is required further by Civil Rule 52.09, V.A.M.R., that the petition allege facts showing that plaintiff or plaintiffs have been fairly chosen and adequately and fairly represent the whole class. The rule specifically requires that these allegations must be proved. This requirement is for the reason that judgment in a class action determines rights of persons not before the court. The rule is well stated in Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596, 599, as follows:

'* * * Our duty is to protect absent parties in suits of this sort. Plaintiffs do not even undertake to allege or to prove facts showing that they were 'fairly chosen,' or chosen at all, and that they 'adequately and fairly represent the whole class.' How they were chosen, if indeed they were chosen, or why they might adequately and fairly represent the class is left for us to ponder. The requirements of the supreme court rule cannot be regarded as merely technical or directory. They are mandatory. Campbell v. Webb, 363 Mo. 1192, 1199, 258 S.W.2d 595, 599. They reveal the court's solicitude for the constitutionality of Section 507.070 by requiring that the elements of due process be accorded to all absent persons whom others who sue would bind as a class. Doubtless the rule was formulated and adopted to achieve consistency with the philosophy announced in Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741, which demonstrates that Art. XIV, U.S. Constitution, forbids suitors to bind members of a class unless it is made apparent by the...

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10 practice notes
  • Bartley v. Special School Dist. of St. Louis County, No. 63901
    • United States
    • United States State Supreme Court of Missouri
    • April 26, 1983
    ...stand and the legislature, in fact, intended repeal although it did not do so. Kansas City Terminal Railway Co. v. Industrial Commission, 396 S.W.2d 678, 683 (Mo.1965). And where two acts are seemingly incompatible, they must, if feasible, be so construed that the later act will not operate......
  • Concerned Parents v. Caruthersville School Dist. 18, No. 59626
    • United States
    • Missouri Supreme Court
    • April 11, 1977
    ...their individual capacities, even if they do not qualify to act on behalf of a class. Kansas City Terminal Ry. v. Industrial Commission, 396 S.W.2d 678 (Mo.1965). Since the trial court did not consider or act upon the request that this case proceed as a class action and we act herein as a P......
  • City of Lebanon v. Holman, No. 8477
    • United States
    • Missouri Court of Appeals
    • April 27, 1966
    ...1 As nearly as we can compute it, the exact acreage is 2,460. 2 Kansas City Terminal Railway Co. v. Industrial Comm., Mo., 396 S.W.2d 678, 680; Hribernik v. Reorganized School Dist. R--3, Mo.App., 276 S.W.2d 596, 599; Sheets v. Thomann, Mo.App., 336 S.W.2d 701; Milton Const. & S. Co. v. Met......
  • Lucas Subway Midmo, Inc. v. Mandatory Poster Agency, Inc., No. WD 79834
    • United States
    • Court of Appeal of Missouri (US)
    • April 25, 2017
    ...disagree with the circuit court that this present case is analogous to Kansas City Terminal Railway Company v. Industrial Commission , 396 S.W.2d 678 (Mo. 1965). In Kansas City Terminal , the plaintiff sought to represent a class of railroads that were paying inspection fees. Id. at 680–81.......
  • Request a trial to view additional results
10 cases
  • Bartley v. Special School Dist. of St. Louis County, No. 63901
    • United States
    • United States State Supreme Court of Missouri
    • April 26, 1983
    ...stand and the legislature, in fact, intended repeal although it did not do so. Kansas City Terminal Railway Co. v. Industrial Commission, 396 S.W.2d 678, 683 (Mo.1965). And where two acts are seemingly incompatible, they must, if feasible, be so construed that the later act will not operate......
  • Concerned Parents v. Caruthersville School Dist. 18, No. 59626
    • United States
    • Missouri Supreme Court
    • April 11, 1977
    ...their individual capacities, even if they do not qualify to act on behalf of a class. Kansas City Terminal Ry. v. Industrial Commission, 396 S.W.2d 678 (Mo.1965). Since the trial court did not consider or act upon the request that this case proceed as a class action and we act herein as a P......
  • City of Lebanon v. Holman, No. 8477
    • United States
    • Missouri Court of Appeals
    • April 27, 1966
    ...1 As nearly as we can compute it, the exact acreage is 2,460. 2 Kansas City Terminal Railway Co. v. Industrial Comm., Mo., 396 S.W.2d 678, 680; Hribernik v. Reorganized School Dist. R--3, Mo.App., 276 S.W.2d 596, 599; Sheets v. Thomann, Mo.App., 336 S.W.2d 701; Milton Const. & S. Co. v. Met......
  • Lucas Subway Midmo, Inc. v. Mandatory Poster Agency, Inc., No. WD 79834
    • United States
    • Court of Appeal of Missouri (US)
    • April 25, 2017
    ...disagree with the circuit court that this present case is analogous to Kansas City Terminal Railway Company v. Industrial Commission , 396 S.W.2d 678 (Mo. 1965). In Kansas City Terminal , the plaintiff sought to represent a class of railroads that were paying inspection fees. Id. at 680–81.......
  • Request a trial to view additional results

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