McGrew Coal Company v. Mellon

• Decision Date: 08 October 1926
• Docket Number: 25911
• Citation: 287 S.W. 450,315 Mo. 798
• Parties: McGrew Coal Company v. Andrew W. Mellon, Federal Agent under Transportation Act of 1920, Appellant
• Court: Missouri Supreme Court

287 S.W. 450

315 Mo. 798

McGrew Coal Company v. Andrew W. Mellon, Federal Agent under Transportation Act of 1920, Appellant

No. 25911

Supreme Court of Missouri

October 8, 1926

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Reversed.

Edw J. White, W. W. Graves, Jr., E. M. Tipton and James F. Green for appellant; Alex M. Bull of counsel.

(1) The Legislature has no power to arbitrarily declare the discrimination by railroads unlawful, without regard to condition or circumstances. Sloan v. Railroad, 61 Mo. 24; C. & A. Railroad v. People, 67 Ill. 11; Abbott v. Lindenbower, 42 Mo. 162. (2) Sec. 9974, R S. 1919, and Section 12, Article XII, of Constitution of 1875, are in violation of the Fourteenth Amendment to the Constitution of the United States. 2 Elliott on Railroads, sec. 86; State ex rel. v. Railroad, 31 L. R. A. 47; Regan v. Loan Co., 154 U.S. 1014; Railroad v. Minnesota, 134 U.S. 970. (3) Plaintiff's claim has been denied by the Interstate Commerce Commission and should also be denied by this court. McGrew Coal Co. v. Dir. Gen., 85 I. C. C. Rep. 735.

Edwin A. Krauthoff for respondent.

(1) Neither the statutes nor the constitutional provision cited are in conflict with the Fourteenth Amendment of the Constitution of the United States. McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496, 258 Mo. 23, 244 U.S. 191, 280 Mo. 466, 256 U.S. 134. See, also -- McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533; Mo. So. Railroad Co. v. Pub. Serv. Comm., 279 Mo. 491. (2) Where plaintiff shipped coal f. o. b. destination and the consignee paid the excessive rate, and was thereafter reimbursed by the consignor, the consignor was the party entitled to recover. McGrew v. Mo. Pac. Ry. Co., 280 Mo. 466, 13 A. L. R. 283, 256 U.S. 134; Cobb v. Joyce-Watkins Co., 287 Mo. 47. (3) The contention that the carrier must charge and collect the tariff rates, though illegal is predicated of a provision in the Interstate Commerce Act, and self-evidently does not apply to intrastate rates. 1 Drinker on Interstate Commerce, secs. 229, 240, 244. The Missouri Public Service Commission cannot "by its order impart validity to a rate which is prohibited by the Constitution and laws of this State." Independent Breweries Co. v. St. Louis Ry. Co., 4 Mo. P. S. C. 623. And the filing of a tariff does not justify a violation of the law. "It is elementary that if the rate named in a contract is unlawful, a common carrier cannot justify such unlawful charge because a shipper has agreed to pay it." Mooney v. Mo. So. Railroad Co., 5 Mo. P. S. C. 257. The Commission "had no authority to authorize violations of the positive law." McGrew v. Mo. Pac. Ry. Co., 118 Mo.App. 383. (4) The Missouri constitutional provision makes it unlawful for a railroad corporation to "charge" the prescribed rate (Art. 12, sec. 12). So that, instead of the tariff rates violative of the law being a defense, they constitute the cause of action. "The record shows, we think, that the carrier violated the statute [the Interstate Commerce Act], by publishing the lower rate for the longer haul without permission . . ." Davis v. Portland Seed Co., 264 U.S. 424; Seawell v. Ry. Co., 119 Mo. 243; Cohn v. Ry. Co., 181 Mo. 44; California Adjustment Co. v. Ry. Co., 179 Cal. 153. It need not be shown that "the carrier actually charged or received the lower rate for the longer haul . . . the published lower tariff for the longer haul does so show." McCaull-Dinsmore Co. v. Great Northern Ry. Co., 154 Minn. 28; Beeghly v. Public Utilities Comm., 104 Oh. St. 165. The constitutional inhibition against the charging of the greater rate for the shorter haul (Art. 12, sec. 12) of course controls the Missouri Public Service Commission and the tariffs filed with that body. Mo. So. Ry. Co. v. Pub. Serv. Comm., 279 Mo. 489; In re Fourth-Class Rates, 4 Mo. P. S. C. 552; Independent Breweries v. St. Louis Ry. Co., 4 Mo. P. S. C. 625; Mooney v. Mo. So. Railroad Co., 5 Mo. P. S. C. 257, 279 Mo. 487. (5) Defendant asks the court to reconsider the former McGrew cases. "Where, as here, counsel for appellants insistently reiterate a single ground of invalidity, which, after repeated presentations has failed to convincingly impress the court, the time-worn maxim embedded in the law since the time of Littleton, that 'it is the concern of the public that there should be an end of litigation' may be appropriately applied. A careful survey of the present contention as to the invalidity of the statute adds no reason not heretofore submitted. What we held good in the beginning may therefore be held good in the end, for appellant's contention can derive no strength from iteration in the absence of reason." State ex rel. v. Imel, 280 Mo. 558. "In view of these repeated adjudications, can there be any merit in this appeal? If there is, we fail to appreciate it." Dickey v. Holmes, 208 Mo. 672. The practice of raising constitutional questions previously decided by this court has been denounced as "intolerable." Carpenter v. Hamilton, 185 Mo. 609. Constitutional questions passed on by the Supreme Court in former cases are no longer open. State v. Campbell, 214 Mo. 362; State v. Wild, 190 S.W. 273; State v. Evertz, 190 S.W. 287; State v. Campbell, 259 S.W. 430. "A constitutional question once decided is no longer open for consideration unless it appears to the court that its opinion is radically wrong." State ex rel. v. Imel, 280 Mo. 559. (6) Constitutional prohibitions are self-enforcing. State ex rel. v. Gordon, 251 Mo. 309; McGrew v. Paving Co., 247 Mo. 564; State ex inf. v. Kansas City, 233 Mo. 186. Likewise as to constitutional mandates. State ex rel. v. Warner, 197 Mo. 650. (7) In addition, it appears that Sections 1 and 4 of the Act of 1872, now Secs. 9974, 9998, R. S. 1919, were re-enacted in 1879 as a part of a revised bill relating to railroads. See unreported opinion of Valliant J., in the McGrew case, 230 Mo. 496, 582. So that, even if invalid as originally passed, it is entirely valid as passed in 1879. And the Legislature did enforce the Constitution of 1875 by enacting the revision of 1879. R. S. 1879, secs. 820, 822. No attack is made in this case in any manner as to the validity or sufficiency of the legislation had in 1879. The re-enactment of a statute adopts a construction thereof. Schawacker v. McLaughlin, 139 Mo. 341; State v. Schenk, 238 Mo. 453; Camp v. Railroad Co., 94 Mo.App. 281. (8) The contention of the defendant that the Missouri constitutional and statutory provisions in issue in this case are in violation of the Fourteenth Amendment to the Constitution of the United States has been denied by the Supreme Court of the United States. Mo. Pac. Ry. Co. v. McGrew Coal Co., 244 U.S. 191, 256 U.S. 134.

OPINION

Blair, C. J.

This is an action to recover alleged excessive freight charges for the transportation of coal between January 1, 1918, and March 4, 1920, from the mines of respondent at Myrick, Missouri, to various stations in this State on the railroad lines of the Missouri Pacific Railroad Company. Respondent had judgment below for $ 18,730.99, and an appeal was granted to this court.

The action was originally brought against Walker D. Hines, Director General of Railroads. James C. Davis, acting as Federal Agent, appointed under the Transportation Act of 1920, was substituted as appellant before the case was argued and submitted in this court. On May 12, 1926, Andrew W. Mellon, the successor of James C. Davis, upon a stipulation filed in this court, was substituted as appellant in the same official capacity.

The petition contained 168 counts, each count being based upon a separate shipment. Counts 41 and 95 were dismissed, and judgment was entered upon the remaining counts. The petition alleged the incorporation in Missouri of the McGrew Coal Company and that said corporation is and was engaged in the coal mining business in Lafayette County, Missouri, and further alleged the official position of Walker D. Hines as Director General of Railroads and that he was in charge of and operating the Missouri Pacific Railroad Company. The numerous counts or causes of action are alike except as to dates of shipments, amounts of coal shipped, rates charged, destinations of shipments and comparative rates charged between other points on said railroad.

In the first count it was alleged that, on December 28, 1917, plaintiff shipped 354,600 pounds of bituminous coal over the lines of the Missouri Pacific Railroad Company from Myrick to Archie, both in Missouri, and that the Director General charged and collected from the consignee ninety cents per ton by the carload, when said Director General at the time collected for the same class of coal and over the same railroad the rate of sixty cents per ton by the carload from Liberal, Missouri, to Granby, Missouri, a greater distance than from Myrick to Archie.

It was further alleged that plaintiff sold the coal so shipped at an agreed price, delivered free on board cars at destination, and that consignee paid the freight charges thereon at plaintiff's request and was reimbursed therefor by plaintiff. The judgment prayed for in said count was $ 53.19, together with interest and costs. The freight charges involved in this case were all collected from respondent within the period of Federal control during and following the World War.

Without going further into the pleadings, it suffices to say that appellant has made a number of defenses, some of which, due to questions arising out of Federal control and operation of railroads, were not made and could not have been made in prior cases between respondent and appellant or appellant's predecessor, the Missouri Pacific Railway Company.

Among the defenses now made is the defense made in prior cases that Section 12,...