Kansas City Terminal Ry. Co. v. Industrial Commission

• Decision Date: 13 December 1965
• Docket Number: No. 2,No. 51322,51322,2
• Parties: 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
• Court: Missouri Supreme Court

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.

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have Chapter 291 ¹ declared inapplicable to railroads, or, in the alternative, that the provisions of that chapter were repealed by implication by the enactment of the Public Service Commission Law in 1913.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 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 procedure followed that they fairly and adequately represent that class.' See, also, Sheets v. Thomann, Mo.App., 336 S.W.2d 701, and City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546.

In this case plaintiff's petition contained the following allegations with respect to the maintenance of this suit as a class action:

'4. Plaintiff and all other railroad corporations within the purview of Public Service Commission Law mentioned above constitute a class having joint, common, or several rights with a common question of law or fact, involved in the justiciable issue here in question; and, said class being too numerous and otherwise impracticable to bring all individually before the Court herein, plaintiff is such one of said class as will fairly insure adequate representation of all in said respects. Plaintiff, accordingly, sues, respectively, in its individual capacity, and in the above-mentioned capacity of class-representative.'

No proof was offered by plaintiff to show that it was impracticable to bring in all twenty-four (the number shown to be subject to PSC General Orders, 3, 24 and 40) of the railroads. In addition, the petition did not allege that plaintiff was fairly chosen to represent the class, and there was no evidence of any kind on the subject. Unless we resort to mere conjecture, we can conclude only that plaintiff was a self-appointed representative. Furthermore, there is nothing in this record to show any desire on the part of other railroads to be free of the inspection by the defendants and hence nothing to show a common interest or claim between them and plaintiff. The only evidence before us pertaining to the existence or nonexistence of a joint or common right or one involving a common question of law or fact was the affidavit offered by the defendants to the effect that other railroads in Missouri have continued to be inspected and to pay the inspection fees involved. This is indicative of the absence of a common interest between the railroads. Under such circumstances, we hold there was not a sufficient showing to permit the maintenance of a class action, and the judgment of the trial court should have been limited to a determination of the rights of plaintiff individually rather than as a representative of a class.

The next proposition urged by defendants is that the trial court erred in its holding that Chapter 291 did not apply to plaintiff and other railroads. Plaintiff's petition had asserted (1) that Sec. 291.060 by its terms was inapplicable to railroads (or if intended to be applicable, and so construed, it would be unconstitutional as violative of Article III, Sec. 23 of the 1945 Missouri Constitution), and (2) that whatever applicability the statute had to railroads had been repealed by implication by the enactment in 1913 of the Public Service Commission Law. The finding and judgment of the trial court recites simply that Chapter 291 is inapplicable to plaintiff and other railroad corporations. No reason is assigned, but we presume from the wording of the judgment that the finding was on the basis that the act by its terms was inapplicable--not that the statute had been repealed by implication.

Plaintiff's petition sought relief from Chapter 291 generally, and the court's judgment holds that Chapter 291 is inapplicable, but actually the section under which defendant Director made his inspection, and for which a fee was charged, is Sec. 291.060, and this is the section which is analyzed and discussed by plaintiff. Plaintiff's brief recognizes that whether he has the right to make such inspection involves only this section. The title and legislative history of other sections in Chapter 291 are not discussed or briefed. The real question for decision, therefore, is whether Sec. 291.060 authorized defendants to inspect plaintiff's facilities.

In 1901 the General Assembly enacted a statute the title of which read, 'An Act to provide for the appointment of a factory inspector and defining his term of service, salary, powers and duties.' (1901 Session Laws, p. 197.) This is the statute which, with some later amendments, became what is now Sec. 291.060.

This...