McGrew v. Missouri Pacific Railway Co.

• Decision Date: 17 November 1903
• Citation: 76 S.W. 995,177 Mo. 533
• Parties: McGREW, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY
• Court: Missouri Supreme Court

76 S.W. 995

177 Mo. 533

McGREW, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Missouri, Second Division

November 17, 1903

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

Reversed and remanded.

Alexander Graves for appellant.

(1) Section 2659 (which was a part of the legislation of the extra session of 1887) expressly provides: "This act is not intended to repeal any law now in force, not in direct conflict, but is intended to be supplemental to such laws." It is clear that section 2629, was enacted in pursuance of two sections of the Constitution and contains the exact language of section 12, and that section of the Constitution made it mandatory on the Legislature to pass just that law upon which this action is based. And section 14 of the Constitution made it mandatory on the Legislature to "pass laws to correct abuses." The abuse corrected by said section 2629 is the charging of fifty-five cents per ton for mine-run coal from Myrick to Kansas City, a distance of forty-two miles, as against forty cents per ton from Myrick to Boonville, a distance of seventy-seven miles. Now Kansas City and Boonville are admitted by the demurrer, as are all the other facts charged in the petition, to be truly stated as being on the defendant's line of road. And the court will take official notice that from Myrick they are in opposite directions of each other. Hence it will be readily discerned that section 2637 (passed at extra session of 1887) has no application or reference to a shipment of that character, because by its terms it expressly provides for the shorter and longer "distance over the same line in the same direction." Therefore, the two sections 2629 and 2637 are wholly consistent with each other, dealing as they do with entirely different objects. Both sections can stand together consistently and both can be practically applied with full vigor. State ex rel. v. Walbridge, 119 Mo 389. (2) The object of the two statutes are not the same. The statutes upon which the action is based has for its object the regulation of freight charges in any direction over any portion of the railroad regardless of "circumstances or conditions" and is in the language of section 12 article 12 of the Constitution. The statute of the extra session of 1887 has for its object the regulation of freight rates over the same part of the railroad in the "same direction, under similar circumstances and conditions," and both may stand together. The foregoing proposition is settled law. "It is necessary to the implication of a repeal that the objects of the two statutes are the same in the absence of a repealing clause. If they are not, both statutes will stand, though they may refer to the same subject." United States v. Claflin, 97 U.S 552; People v. Platt, 67 Cal. 22; Rosborough v. Boardman, 67 Cal. 116; Rawson v. Rawson, 52 Ill. 62; U. S. v. Gear, 3 How. (U.S.) 120; Miller v. Edwards, 8 Colo. 528; Bowen v. Lease, 5 Hill (N. Y.), 225; State ex rel. v. County court, 41 Mo. 553. (3) Section 2629 upon which the action is based, was section 820, Revised Statutes 1879, and was passed in obedience to the mandate of the Constitutional provisions above quoted and is embraced within the police power of the State to be exercised for the public welfare, and is beneficial. State v. Loomis, 115 Mo. 313; Budd v. New York, 143 U.S. 533; Munn v. Illinois, 94 U.S. 123; Railroad v. Humes, 115 U.S. 518; Walker v. Sauvinet, 92 U.S. 92; Owens v. Railroad, 83 Mo. 454; Sewell v. Railroad, 119 Mo. 222. If the law, in the opinion of the corporation, works hardship or injustice, the court can not intervene for its relief. "The ballot-box and not the judiciary must be appealed to." Gibbons v. Ogden, 6 Curtis 12; Budd v. New York, supra; Railroad v. Humes, supra; Powell v. Penna, 127 U.S. 686; Munn v. Illinois, supra; Walker v. Sauvinet, supra; Missouri v. Lewis, 101 U.S. 32; State v. Loomis, 115 Mo. 314; County Court v. Griswold, 58 Mo. 192.

M. L. Clardy and Wm. S. Shirk for respondent.

(1) The demurrer to the petition was rightfully sustained. It did not allege that the longer and shorter hauls, mentioned in the petition, were made "under similar circumstances and conditions," or "in the same direction." Without these allegations the petition stated no cause of action. Sections 1126 and 1134, Revised Statutes 1899, must be read together. They can be read and construed together, and together be effectuated and enforced. It is one of the cardinal rules of the construction of statutes that if they can be read together without contradiction or repugnancy or absurdity or unreasonableness, they should be read together and both have effect. Ex parte Joffee, 46 Mo.App. 360; State to use v. Herman, 70 Mo. 441; Cole v. Skrainka, 105 Mo. 303; Kane v. Railroad, 112 Mo. 34. (2) Section 1134, Revised Statutes 1899, is constitutional. The Legislature was fully authorized to enact this section under section 14, article 12, of the Constitution, which directs the General Assembly to pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs. This is exactly what section 1134 undertakes to do. (3) As an instance where different sections of the statute will be read or construed together, see McGrew v. Railroad, 114 Mo. 210. In that case the action was based entirely on section 2631, Revised Statutes 1889 (section 1128, Revised Statutes 1899), and the triple damages allowed by Revised Statutes 1899, section 1140, sued for. But by section 1136, Revised Statutes 1899, the rates fixed by the statute or by the railroad commissioners were deemed reasonable. In that case, the plaintiff ignored the last-named section, as the plaintiff in this case ignores section 1134, and failed to allege that the rates charged were in excess of the rates fixed by the railroad commissioners, or by the statute. The court held that sections 2631 and 2639 (R. S. 1889) must be read together, and that one suing for unreasonable or unjust rates, must, by the allegations of his petition, bring himself within the terms of the statute, and that the petition was fatally defective in not alleging that the rates charged were in excess of the rates fixed by statute, or approved by the railroad commissioners. So here, sections 1126 and 1134, Revised Statutes 1899, must be read together and the different counts of plaintiff's petition are fatally defective, because by their allegations they do not bring the case within the terms of section 1134, Revised Statutes 1899. (4) If appellant's contention is right, then under no circumstances or conditions could a common carrier charge more for a short than a long haul, nor could it make either free or reduced rates for carrying the property of the United States nor of the State of Missouri, nor for any fair, exposition, religious, scientific, benevolent or charitable purpose. Because all these rights and privileges are given by said section 1134.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

The plaintiff brought his action returnable to the December term, 1899, of the Lafayette Circuit Court.

Omitting caption, the petition is in the following words:

"Plaintiff avers that the defendant is and has been ever since the month of October, 1879, a railroad corporation duly organized under the general corporation law of the State of Missouri, and on the dates and at the times hereinafter named was engaged in the transportation of freight and passengers between the points in said State as hereinafter set forth. That the plaintiff is and was during all the dates hereinbefore and hereinafter named engaged in the coal business, having his mines near Myrick, one of defendant's stations, shipping coal to Kansas City, Missouri, another of defendant's stations. That the plaintiff shipped by defendant's line of railroad on certain days of September, 1897, from said Myrick, to various persons, as consignees, at said Kansas City, the following freight, to-wit: 138.60 tons of mine-run coal, in cars numbered 12665, 12558, 105, 4145, 3923, 10960, and 4112, for which defendant fixed, charged, demanded and received fifty-five cents per ton of plaintiff, and said charge and payment of said freight rate was fifteen cents per ton more than defendant was by law entitled to fix, demand, charge and receive in this, to-wit: That during all the said time and dates hereinafter named defendant had fixed, charged, demanded and received over its said line and over another part of its said road from said station of Myrick and to another of its said stations, namely, Boonville, Missouri, a distance of seventy-seven miles, for the transportation of mine-run coal forty cents per ton by the carload, while the distance from said Myrick to said Kansas City was only 42.3 miles for which said charge of fifty-five cents per ton for said freight was fixed, charged, demanded and received, and the same was illegal and exceeded the amount that the defendant was entitled to charge, fix, demand and receive for said shipments in the sum of $ 20.77, an itemized account whereof is herewith filed marked 'Exhibit A.' Wherefore plaintiff avers that he is aggrieved and damaged in the sum of $ 20.77, for which he asks judgment, and for his costs, and for all other relief to which he may be entitled under the statute in such cases made and provided."

The remaining twenty counts in the petition are identical with the first count above copied, being for each successive month down to and including May, 1899, for similar illegal freight charges on coal shipped from said Myrick to Kansas City, amounting in the aggregate to $ 2,206.29.

To this petition defendant demurred on the ground that neither of the counts stated a cause of...