McCully v. Chicago, B. & Q. Ry. Co.

• Decision Date: 13 May 1908
• Citation: 110 S.W. 711,212 Mo. 1
• Parties: McCULLY et al. v. CHICAGO, B. & Q. RY. CO.
• Court: Missouri Supreme Court

110 S.W. 711

212 Mo. 1

McCULLY et al. v. CHICAGO, B. & Q. RY. CO.

Supreme Court of Missouri.

May 13, 1908.

1. CONSTITUTIONAL LAW — DEPRIVATION OF PROPERTY — DUE PROCESS OF LAW.

Rev. St. 1899, § 1085 (Ann. St. 1906, p. 933), in so far as it requires railroad companies to furnish free return transportation to shippers of stock by car load over the line of their road or roads to the point from which shipment is made, is invalid as a deprivation of property of the carrier without due process of law, in violation of the fourteenth amendment of the federal Constitution.

2. SAME — EQUAL PROTECTION OF LAW.

Such section is also invalid as a denial to the carrier of the equal protection of the law, in that it denies to railroad companies the right to charge and exact payment of tolls or fares for the transportation of shippers of stock over their lines which they are allowed to charge other shippers for the same service.

Woodson and Valliant, JJ., dissenting.

In Banc. Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Suit by W. E. McCully and others, constituting the Board of Railroad and Warehouse Commissioners, against the Chicago, Burlington & Quincy Railway Company. Decree for complainants, and defendant appeals. Reversed and dismissed.

O. M. Spencer, A. W. Mullins, and H. J. Nelson, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, for respondents.

BURGESS, J.

This proceeding was instituted in the circuit court of Linn county by plaintiffs, in their official capacity as members of the Board of Railroad and Warehouse Commissioners, against the defendant, under section 1150, Rev. St. 1899 (Ann. St. 1906, p. 983). It is provided by section 1085, Rev. St. 1899 (Ann. St. 1906, p. 933), that, in case of the shipment of live stock by the car load, railroad companies shall pass the shipper or his employé to and from the point designated in the contract or bill of lading, in consideration of the price paid for the car, and without further expense to the shipper. Informal complaints having been made to the Board of Railroad and Warehouse Commissioners that the defendant railway company was refusing to furnish shippers of live stock by the car load with return transportation, a hearing was had before said board, due notice having been given to defendant, after which hearing an order was made by the board directing the defendant to pass the shipper of live stock, or his employé, to and from the place designated in the contract, or bill of lading, as provided in said section 1085. The order thus made was duly served upon the defendant, and, upon its refusal to comply therewith, this suit was instituted by plaintiffs to enjoin the defendant from violating the order of the board and the provisions of said section 1085. The defendant demurred to the petition upon the following grounds: "(1) Because said petition does not state facts sufficient to constitute a cause of action. (2) Because section 1085 of the Revised Statutes of Missouri of 1899, upon which plaintiff's complaint is founded and their said petition predicated, is invalid and void, because it is repugnant to and in conflict with the fourteenth amendment to the Constitution of the United States, in this: That said statute operates as a deprivation of property without due process of law, and is a denial of the equal protection of the laws, in denying to railroad companies the right to charge and exact the payment of tolls or fares for the transportation of persons over their lines. (3) Because said section of the statutes undertakes to require railroad companies, as common carriers, to render valuable service without compensation." The demurrer was overruled by the court, and, the defendant declining to plead further, final judgment was rendered as prayed for in the petition, from which judgment defendant appealed to this court.

It is insisted by defendant that the court below erred in overruling the demurrer interposed by it to the petition, and in rendering judgment against the defendant and in favor of plaintiffs, because section 1085, Rev. St. 1899 (Ann. St. 1906, p. 933), upon which the complaint is predicated, is repugnant to and in conflict with the fourteenth amendment to the Constitution of the United States, and therefore void.

The statute in question is as follows: "Sec. 1085. Whenever any railroad company or corporation doing business within the limits of this state shall receive and ship any live stock, or watermelons when shipped with the privilege of peddling along the line of said road or roads, by the car loads, said company shall, in consideration of the price paid for said car, pass the shipper or his employé to and from said point designated in contract or bill of lading without further expense to shippers, under penalties as in the two preceding sections: Provided, that this section shall not be so construed as to permit a shipper of live stock to peddle the same along the line of said road or roads."

This section of the statute was enacted in 1889, and approved June 12th of that year. Sess. Acts 1889, p. 63. The headnotes or catchwords to the act and the title thereto are as follows:

"Corporations: Railroads — Shippers to Ride Free, When. An act to amend an act to require railroad companies, or persons owning or operating any railroad or railroads in this state to furnish suitable and convenient cars for shipping live stock, and transporting and delivering the same to consignees at any station or stockyard in this state, approved March 31, 1887, by adding a new section thereto.

"Section 1. Company to pass shippers," etc.

The Legislature of this state in 1875 enacted for the first time a statute fixing the maximum rates authorized to be charged by railroad companies for the shipment of live stock in car loads within this state. These rates were "not exceeding ten dollars per car load for the first twenty-five miles, and not exceeding seven dollars per car load for the second twenty-five miles, and four dollars per car load for each additional twenty-five miles, or fractional part thereof, unless the fraction be less than thirteen miles, in which case the rate shall not exceed two dollars per car load for such fractional part." Sess. Acts 1875, p. 114, § 4. This statute was brought forward and incorporated, without amendment, into the Revisions of 1879, 1889, and 1899, being section 1194, Rev. St. 1899 (Ann. St. 1906, p. 1005). Railroad companies were thus limited in the charges they might make for shipping live stock when the act of 1889 was passed, now section 1085, Rev. St. 1899 (Ann. St. 1906, p. 933). Prior to the said act of 1889 there was no statute requiring railroad companies to furnish shippers of live stock or their employés free transportation. While it is conceded by defendant that the Legislature has the power to fix the maximum rates which railroad companies may charge for the transportation of persons and property, provided such rates be just and reasonable to both the carrier and the public, it insists that the Legislature cannot "enact a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or ca-price may seem proper" — citing Lake Shore & Mich. Ry. Co. v. Smith, 173 U. S. 695, 19 Sup. Ct. 565, 43 L. Ed. 858. The right of the defendant to charge and collect fares or tolls for the transportation of persons and property over its line is the essence of its franchise, and to trench upon this right would be to deprive it of its property without due process of law, and to deny to it the equal protection of the law. The said fourteenth amendment to the Constitution of the United States, among other things, provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Railway Co. v. Campbell, 61 Kan. 439, 59 Pac. 1051, 48 L. R. A. 251, was an action against the railway company to recover a sum of money paid as passenger fare on the line of the road of the company from Kansas City, Kan., to Attica, Kan. The plaintiff in the case shipped a car load of live stock from the latter place to the former. On the going trip he rode free on a stock shipper's contract issued to him by the railroad company's agent at the shipping point, and on the return trip demanded to be carried free, in accordance with the provisions of chapter 167, p. 355, Laws Kan. 1897. This demand was refused, and, to avoid ejection from the train, he paid the required fare. He then brought action to recover the amount paid, together with an attorney's fee for the prosecution of the suit. Judgment was rendered in his favor, first by a justice of the peace, next by the district court, and lastly by the Court of Appeals. The railroad company prosecuted error to the Supreme Court. The only question involved in the case was the constitutionality of the enactment under which the demand for free transportation was made; the title of the act and the only section necessary to refer to in this case being as follows:

"An act to amend chapter 195 of the Laws of 1895, being an act entitled `An act to require railroad companies to furnish free transportation to shippers of stock in certain cases, and providing a remedy in case of failure or refusal on the part of the railroad company to comply with the provisions of this act.' To provide a penalty for the violations of the provisions of this act, and repealing all acts and parts of acts in conflict herewith."

"Section 1. That section 1 of chapter 195 of the Laws of 1895, be amended so as to read as follows:

"Section 1. Whenever any railroad company, or corporation, doing business within the limits of this state shall receive and ship any live stock by the car load,...