McGrew v. Missouri Pac. Ry. Co.

• Decision Date: 28 June 1910
• Citation: 230 Mo. 496,132 S.W. 1076
• Parties: McGREW v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

132 S.W. 1076

230 Mo. 496

McGREW v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 28, 1910.

Rehearing Denied November 12, 1910.

1. APPEAL AND ERROR (§ 193)—THEORY OF CASE.

Though a party cannot try a case on one theory in the trial court and upon another theory in the appellate court, and, generally speaking, if a constitutional question is not raised at the trial it cannot be urged upon appeal, yet where a cause of action is founded upon a statute, the constitutionality and life of the statute are involved from the start to the finish of the case, and defendant, at any time and in any court, may object that plaintiff's petition does not state a cause of action, because the statute upon which it is founded is unconstitutional or has been repealed, in view of Rev. St. 1899, § 602 (Ann. St. 1906, p. 628), providing that if no objection be taken by demurrer or answer the objections shall be deemed to be waived except an objection to the jurisdiction of the court over the subject-matter, and that the petition does not state a cause of action.

2. CARRIERS (§§ 199, 201)—UNLAWFUL DISCRIMINATION—RULE AT COMMON LAW.

At common law, only unjust discriminations by carriers are condemned, and the question of whether a discrimination is unjust is for the court to decide.

3. STATUTES (§ 113)—TITLE OF ACT—"DISCRIMINATION."

Act April 1, 1872 (Laws 1872, p. 69), entitled "An act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this state for the transportation of freight on said roads," by section 1 (Rev. St. 1899, § 1126 [Ann. St. 1906, p. 971]) prohibits a railroad company in the state from charging for transportation of property for any distance over its road any larger amount as compensation than is charged by it for the transportation of similar quantities of the same class of property over a greater distance over its road; from charging different rates for receiving, handling, or delivering freight at different points on its road, or any road used by it in connection therewith; and from charging for the transportation of property over any portion of its road a greater amount as compensation than shall be charged by it for transportation of similar quantities of the same class of property over any other portion of its road of equal distance. Held, that the act is not violative of Const. 1865, art. 4, § 32, providing that no law shall relate to more than one subject, which shall be expressed in the title, in that the title is merely declaratory of the common law prohibiting only unjust discrimination, and tolerating just discrimination, while the body of the act prohibits every discrimination without regard to whether it is just or unjust, rendering the act merely one to prevent such things as the court might decide to be unjust discrimination, but the title of the act prohibits things declared in the act to be unjust discrimination; the word "discrimination," applying to local as well as individual discrimination, and including the so-called "short-haul" regulation, and the body of the act prohibiting only the three discriminations specified therein, and no just discrimination, the legislative condemnation of the specified discrimination as unjust, rendering them unjust by reason of such condemnation, the body of the act is fully covered by the title.

4. STATUTES (§ 113)—TITLE OF ACT.

The title is broad enough to include every unjust discrimination whether unjust in law prior to the enactment or not, and broad enough to authorize the Legislature to declare unjust discrimination which previously had been tolerated under the law.

5. CONSTITUTIONAL LAW (§ 21)—CONSTRUCTION OF CONSTITUTION—PROVISIONS ADOPTED FROM OTHER STATE.

The general rule is that where one state borrows a constitutional provision from another state that has previously been construed by the courts of the other state, such construction is presumed to have been adopted along with the provision; the reason for the rule being that, if it were intended to exclude the previous construction, the legal presumption is that the terms of the provisions would be so changed as to effect that intent.

6. STATES (§ 1)—POWERS.

The governments of the states possess all the powers of the Parliament of England except such as have been delegated to the United States or reserved by the people, in view of Const. 1870, art. 3, § 1 (Ann. St. 1906, p. 172), providing that the legislative power, subject to the limitations therein contained, shall be vested in a Senate and House of Representatives.

7. CONSTITUTIONAL LAW (§ 26)—CONSTRUCTION OF CONSTITUTION—NATURE OF STATE CONSTITUTION.

The state Constitutions are not grants of power, but are restrictions on the powers which the state government would otherwise possess.

8. CARRIERS (§ 12)—REGULATION—POWER OF STATE.

The regulation of railroads is within the legislative power of the state, and the state may fix rates and authorize them to be charged and place them beyond the power of the interference of the courts on the ground that they are extortionate, and such rates, except for some constitutional or statutory provision so authorizing, cannot be adjudged by the court to be extortionate.

9. CARRIERS (§ 2)—DISCRIMINATION—REGULATION—CONSTITUTIONALITY OF STATUTE.

Act April 1, 1872 (Laws 1872, p. 69), entitled "An act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this state for the transportation of freight thereon," by section 1 (Rev. St. 1899, § 1126 [Ann. St. 1906, p. 971]) prohibits a railroad company in the state from charging for transportation of property for any distance over its road any larger amount as compensation than is charged by it for the

[132 S.W. 1077]

transportation of similar quantities of the same class of property over a greater distance over its road; from charging different rates for receiving, handling, or delivering freight at different points on its road, or any road used by it in connection therewith; and from charging for transportation of property over any portion of its road a greater amount as compensation than is charged by it for transportation of similar quantities of the same class of property over any portion of its road of equal distance. The act was taken substantially from the Illinois law (Laws 1871-72, p. 635). In 1873, the Illinois law was declared unconstitutional on the ground that the Constitution restricted the power of the Legislature to prohibit discriminations to those which were unjust and made the question of the injustice of any alleged discrimination a judicial question for the court, and that the Legislature had no power to declare anything to be an unjust discrimination. The Missouri Constitution of 1865 did not limit the power of the Legislature to prohibit discriminations by railroads, but Const. 1875, art. 12, § 14 (Ann. St. 1906, p. 306), adopted literally from the Illinois Constitution (article 11, § 12), the portion held to have been violated by the Illinois law providing that railroads are public highways, and railroad companies common carriers, and that the General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger traffic on the different railroads in the state, and shall pass laws establishing maximum rates and charges for transportation of passengers and freight on the railroads, and enforce all such laws by adequate penalty. The Missouri Constitution, also by article 12, § 12 (page 306), providing that it shall not be lawful for any railroad company to charge for transportation of freight or passengers a greater amount for a less distance than the amount charged for a greater distance, and that suitable laws shall be passed to enforce the provision, adopted the very gist of the statute (the so-called "short-haul" rule) extending its provisions to passengers as well as to freight. Held, that the intent in adopting section 12 was to establish the short-haul rule as a part of the fundamental law and to put it in operation, and the provision of section 14, directing the Legislature to pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger traffic, does not operate as an implied limitation on the power of the Legislature to prevent only such discriminations as are unjust, the use of the word "unjust" not being intended to limit the Legislature's power in that regard, but to require the exercise of such power, and to declare what shall be unjust discrimination, and such provision refers to discriminations generally, whereas the short-haul rule, established by section 12, applies to a particular class of discriminations, specifically established in positive and explicit terms, so that the short-haul provision of Act 1872 was not rendered unconstitutional by the adoption of the Constitution of 1875.

10. STATUTES (§ 207)—CONSTRUCTION—GENERAL AND PARTICULAR ENACTMENTS.

Where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment taken to affect only such cases within its general language as are not within the provisions of the particular enactment.

11. CONSTITUTIONAL LAW (§ 26)—LIMITATION OF LEGISLATIVE POWER.

While constitutional limitations upon the legislative power may be made expressly or by implication, the implication must at least be clear and strong and convincing, if not absolutely necessary.

12. CONSTITUTIONAL LAW (§ 26)—CONSTRUCTION OF CONSTITUTION.

A constitutional command to the Legislature to do one thing is not a denial of its power to do other things.

13. CONSTITUTIONAL LAW (§ 12)—CONSTRUCTION OF CONSTITUTION—FORCE OF MAXIMS.

The maxims "expressio unius est exclusio alterius" and "expressum facit cessare...