McGrew Coal Company v. Missouri Pacific Railway Company

• Decision Date: 26 January 1920
• Citation: 217 S.W. 984,280 Mo. 466
• Parties: McGREW COAL COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

217 S.W. 984

280 Mo. 466

McGREW COAL COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

January 26, 1920

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Edward J. White, James F. Green and Harvey C. Clark for appellant.

(1) Under the stipulation introduced by the plaintiff, the freight on each shipment mentioned in the petition was paid by the consignee and not by the plaintiff. Any damages sustained by reason of any overcharge on such shipments was sustained by the consignee, who paid the freight, and not by the plaintiff, and respondent is not the proper party to complain. International Coal Co. v. Railroad, 230 U.S. 184; Hoover v. Railway Company, 156 Pa. St 220; Sharpless v. Lawrence, 213 F. 427; Homestead Co. v. Electric Co., 226 F. 53; Lehigh Valley Railroad v. American Hay Co., 219 F. 541; Railroad Co. v. Spiller, 242 F. 1; Kirkpatrick v. Railroad Co., 86 Mo. 341. (2) Before plaintiff can recover in this case it must show that it has been damaged by the acts of the appellant. Cases supra. (3) Statutes are read and construed in the light of the common law. Johnson v Fluetsch, 176 Mo. 452; 6 Am. & Eng. Enc. Law (2 Ed.), p 270; Cooley's Constitutional Limitations (7 Ed.), p. 94. (4) Common carriers were allowed to make reasonable and just discriminations at the common law. 4 Elliott on Railroads, secs. 1467, 1565, 1676; 17 Am. & Eng. Enc. Law (2 Ed.), p. 135; 2 Hutchinson on Carriers (3 Ed.), secs. 521, 588, 589; Railroad Commissioners v. Weld, 73 S.W. 529. (5) Secs. 3173 and 3211, R. S. 1909, enacted by the Legislature of 1872, are unconstitutional and void as the act containing said sections was not passed in accordance with Sec. 32, Art. 4, Constitution of 1865. State ex rel. Hixon v. Lafayette Court, 41 Mo. 39; State v. Presinger, 76 Mo. 346; State v. Great Western Coffee and Tea Co., 171 Mo. 634; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Baker, 129 Mo. 482; Witzman v. S. Ry. Co., 131 Mo. 612; Shively v. Langford, 174 Mo. 535; Dart v. Bagley, 110 Mo. 42. (6) The fact that the Act of 1872, or Sections 3173 and 3211, have been brought forward in the various revisions, gives them no added force or validity; said sections are void just as they were void when first enacted by the Legislature in 1872. Brannock v. Railway, 200 Mo. 561; Paddock v. Railroad, 155 Mo. 524. (7) The General Assembly by adopting the statute of a sister state, adopts the construction which has been given that statute by such state. State ex rel. v. Macon County Court, 41 Mo. 453; Northcut v. Edgar, 132 Mo. 265; Burnside v. Want, 170 Mo. 531. (8) The Legislature has no power to arbitrarily say that all discriminations by railroads, regardless of conditions and circumstances, are unlawful. Sloan v. Pac. Railroad, 61 Mo. 24; Chicago & Alton Ry. Co. v. People, 67 Ill. 11; 2 Hutchinson Carrier (3 Ed.), sec. 588; Abbott v. Lendenvower, 42 Mo. 162. (9) A statute revising the whole subject-matter of a former statute and evidently intended as a substitute for it, although it contains no expressed words to that effect, repeals the former. Laws 1887 (Extra Session), p. 15; State v. Roller, 77 Mo. 120; Yall v. Gillham, 187 Mo. 393; Mariwether v. Love, 167 Mo. 514; Delaney v. Police Court, 167 Mo. 667; State ex rel. v. Patterson, 229 Mo. 364; Sutherland on Statutory Construction (2 Ed.), sec. 247. (10) A statute is repealed by implication if there is a positive repugnancy between the new law and the old, so that they cannot stand together or be consistently reconciled. Pac. Railroad Co. v. Cass Co., 53 Mo. 17. (11) A construction of the Constitution should not be adopted which renders meaningless any of its provisions. State ex rel. v. Hostetter, 137 Mo. 636; Cooley's Constitutional Limitations (7 Ed.), pp. 91, 92. (12) The test of whether or not a constitutional provision is self-enforcing is whether its language is addressed to the General Assembly or to the courts. If its language indicates that it was intended as a present enactment, complete in itself as definite legislation, it is addressed to the courts and is self-enforcing; but if it contemplates subsequent legislation to carry it into effect, it is addressed to the General Assembly, and is not self-enforcing. State ex rel. v. Gibson, 195 Mo. 251. (13) Sec. 3173, R. S. 1909, and Section 12, Article 12, Constitution of Missouri 1875, are in violation of the 14th Amendment of the Constitution of the United States. Cooley's Constitutional Limitations (7 Ed.), pp. 500 to 520; 2 Elliott on Railroads, sec. 686; 2 Hutchinson Carrier (3 Ed.), sec. 574; State of Neb. ex rel. v. Sioux City & O. W. R. Co., 31 L.R.A. 47; Ragan v. Farmers Loan and Trust Co., 154 U.S. 1014; Chicago, M. & St. P. Railroad v. State of Minn., 134 U.S. 970; State v. Aims, 169 U.S. 819.

Krauthoff, McClintock & Quant for respondent.

(1) The right of the McGrew Coal Company to recover of defendant an excess rate, being a greater rate of freight for a shorter haul than defendant charged another for a longer haul, stands adjudicated. McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496; McGrew v. Mo. Pac. Ry. Co., 258 Mo. 23; McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533; Cohn v. St. L., I. M. & S. Ry. Co., 181 Mo. 30; McGrew v. Mo. Pac. Ry. Co., 118 Mo.App. 379. The questions presented have all been considered heretofore with great care and at great length and consistently have been decided against appellant. McGrew Coal Co. v. Mo. Pac. Ry. Co., 178 S.W. 1179; affirmed, Mo. Pac. Ry. Co. v. McGrew, 244 U.S. 191. (2) Plaintiff quoted a price for coal per ton delivered at point of destination. The carrier exacted of the consignee an illegal freight rate. The consignor reimbursed the consignee for the excess charged. The carrier received money to which the carrier was not entitled. Who owns this money? This constitutional provision is self-enforcing. McGrew v. Mo. Pac. Railroad Co., 230 Mo. 496, 546; Mo. Pac. Ry. Co. v. McGrew, 244 U.S. 191. The Constitution declares unlawful the charging of the excessive rate. Where the doing of a thing is declared unlawful, a right arising out of the unlawful act may be enforced in any appropriate form of action. McGrew v. Mo. Pac. Ry. Co., 230 Mo. 547, 549. In the case of an excessive freight rate "the legal injury is suffered by the person who pays for the carriage." Watkins on Shippers & Carriers, p. 344, sec. 213; Nicola v. Railroad Co., 14 Interstate Comm. Rep., pp. 199, 209; Sondheimer Co. v. Railroad, 20 I. C. C. 607; Lamb, McGregor & Co. v. Railroad, 20 I. C. C. 358; Deming Lumber Co. v. Southern Pacific, 24 I. C. C. 599; Darnell-Taenzer Lumber Co. v. Southern Pacific Co., 221 F. 890, 245 U.S. 531; Georgia Railroad & Banking Co. v. Crossley, 128 Ga. 35; Service & Wright Lumber Co. v. Railway Co., 67 Ore. 63; Davis v. Mobile & O. Ry. Co., 194 F. 376; Andalman v. Ry. Co., 153 Ill.App. 169. (3) "A person liable for and who has paid for a loss or injury caused by fault of another is subrogated to the rights of the injured party against the wrongdoer." 37 Cyc. 394; Lumberman's Mut. Ins. Co. v. Railroad Co., 149 Mo. 177; Loewenstein v. Ins. Co., 227 Mo. 116; Hartford Fire Ins. Co. v. Wabash Ry. Co., 74 Mo.App. 112; Holland Banking Co. v. See, 146 Mo.App. 275; The Jersey City, 43 F. 166, 167; Mobile Ry. Co. v. Jurey, 111 U.S. 594. (4) The law is a part of every contract. Plaintiffs made a contract with defendant to carry coal. The law fixed the rate. This made the rate a part of the contract. Defendant violated the contract. Plaintiff as consignor has a right to sue for the breach of a contract to which it is a party. Atchison v. Chicago Ry. Co., 80 Mo. 213; Ross v. Ry. Co., 119 Mo.App. 294; Gratiot Street Warehouse Co. v. M., K. & T., 124 Mo.App. 564; Steamship Co. v. Railroads, 144 Mo.App. 53; Bennett v. Railroad, 151 Mo.App. 298; Reynolds v. C. & A., 85 Mo. 90; Vanbuskirk v. Railroad, 131 Mo.App. 363; Clubb v. Railroad Co., 136 Mo.App. 4; Barr v. Railroad Co., 181 Mo.App. 91. Either a consignor or a consignee may sue for a breach of the contract of shipment. Henry Bromschwig Tailor's T. Co. v. M., K. & T., 147 S.W. 174. (5) As between a consignor and a consignee, the consignor is the trustee of an express trust. R. S. 1909, sec. 730; Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 478; Gratiot Street Warehouse Co. v. Railway Co., 124 Mo.App. 565; Snider v. Adams Express Co., 77 Mo. 523; 3 Hutchinson on Carriers (3 Ed.), sec. 1309. An action may be brought by the trustee of an express trust. Harney v. Dutcher, 15 Mo. 89; Chouteau v. Boughton, 100 Mo. 411; Ellis v. Harrison, 104 Mo. 277; Beck v. Haas, 111 Mo. 271; Glenn v. Hunt, 120 Mo. 342; Stilwell v. Glasscock, 47 Mo.App. 557; Rothwell v. Skinker, 84 Mo.App. 176; Geer v. Zinc Co., 126 Mo.App. 177.

BROWN, C. Walker C. J. and Williams, Blair and Williamson, JJ., concur; Goode and Woodson, JJ., dissent; Graves, J., not sitting.

OPINION

In Banc

BROWN C.

This petition, filed in the Circuit Court of Lafayette County, Missouri, returnable to the February term, 1915, contains fifty-two counts. Each count is based upon alleged illegal charges on shipment of coal from Myrick, Missouri, to some other station on the line of defendant's railroad in the State of Missouri. All the counts are identical except as to dates, amount of coal shipped, the rate charged, the destination and the comparative rate charged by the defendant for shipment between the points mentioned.

The first count is, omitting titles and signatures, as follows:

"Plaintiff avers that in April, 1908, it was and still is a coal mining company incorporated under the law of the State of Missouri.

"Plaintiff for first cause of action avers that in October, 1879, the defendant was, and has ever since been, a railroad corporation, duly organized under the law of said State...