McGrew v. Missouri Pacific Ry. Co.

• Decision Date: 12 November 1910
• Citation: 132 S.W. 1076,230 Mo. 496
• Parties: JAMES C. McGREW v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

132 S.W. 1076

230 Mo. 496

JAMES C. McGREW v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

November 12, 1910

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

Affirmed.

Martin L. Clardy and Scott & Bowker for appellant.

(1) No law enacted by the General Assembly shall relate to more than one subject, and that shall be clearly expressed in the title. Constitution 1875, sec. 28, art. 4; State v Miller, 45 Mo. 495; People v. Denahy, 20 Mich 349; State ex rel. v. County Court, 102 Mo. 531; State ex rel. v. Ranson, 73 Mo. 87; State ex rel. v. Miller, 100 Mo. 445; Skinner v Wilhelm, 30 N.W. 313. (2) The Legislature can make the title of an act as general as they see fit, so long as the act does not contain separate, distinct and incongruous subjects; when it does, it is void. Lewis v. Dunne, 134 Cal. 291; State ex rel. v. Bronson, 115 Mo. 271; State ex inf. v. Borders, 164 Mo. 221. (3) The amendment must be germane, not only to the title of the act amended, but also to the subject-matter of the law amended. State v. Smith, 35 Minn. 257; Trumble v. Trumble, 55 N.W. 869; Comr's v. Mining & Smelting Co., 32 P. 717. (4) An amendatory act must be enacted with the same formalities and strictness as original legislation. State ex rel. v. Tibbets, 71 N.W. 990. (5) If the title and the bill both contain more than one subject the whole act is void. Cooley's Constitutional Limitations (7 Ed.), 211. (6) The title of the act must fairly indicate the contents of the bill, and must not be misleading or deceptive. State v. Fulks, 105 S.W. 733; Fish v. Stockdale, 69 N. W. (Mich.) 92; Adams v. Waterworks Co., 25 S.W. 605; Harper v. State, 19 So. 857. (7) Statutes are read and construed in the light of the common law. Johnson v. Fluetsch, 176 Mo. 452; 6 Am. and Eng. Ency. Law (2 Ed.), p. 270; Cooley's Constitutional Limitations (7 Ed.), p. 94. (8) Common carriers were allowed to make reasonable and just discriminations at the common law. 4 Elliott on Railroads, secs. 1467, 1565 and 1676; 17 Am. and Eng. Ency. Law (2 Ed.), p. 135; 2 Hutchinson, Carriers (3 Ed.), secs. 521, 588 and 589; Railroad Commissioners v. Weld, 73 S.W. 529. (9) Sections 1126 and 1160, R. S. 1899, were enacted by the Legislature in 1872. Laws 1872, p. 69. (10) Sections 1126 and 1160, enacted by the Legislature of 1872, are unconstitutional and void, as the act containing said sections was not passed in accordance with section 32 of article 4 of the Constitution of 1865. State ex rel. v. Lafayette Court, 41 Mo. 39; State v. Presinger, 76 Mo. 346; State v. Coffee and Tea Co., 171 Mo. 634; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Baker, 129 Mo. 482; Witzmann v. Railroad, 131 Mo. 612; Shivley v. Langford, 174 Mo. 535; Dart v. Bagley, 110 Mo. 42. (11) Where the act of the Legislature is broader than its title, the act is void. Cooley's Constitutional Limitations (7 Ed), pp. 202 and 211; In re Hauck, 38 N.W. 269; Callahan v. Judges of Superior Court, 26 N.W. 806; Chicago & Alton v. People, 67 Ill. 11; 26 Am. and Eng. Ency. Law (2 Ed.), pp. 579 and 590. (12) The fact that the Act of 1872 or sections 1126 and 1160 have been brought forward in the various revisions, gives them no force or validity, and said sections are void just as they were when first passed by the Legislature of 1872. Brannock v. Railroad, 200 Mo. 561. (13) A statute revising the whole subject-matter of a former staute, 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; Meriwether v. Love, 167 Mo. 514; Delaney v. Police Court, 167 Mo. 667. (14) Discrimination by railroads was first prohibited by the Constitution of 1875. The Constitution of 1865 was silent upon this subject. Constitution 1875, secs. 12, 14 and 23, art. 12. (15) Sections 1126 and 1160, supra, or the Act of 1872, page 69, were copied verbatim from the statute of Illinois. Laws of Illinois 1871-2, p. 635. (16) A state by adopting the statute of a sister state, adopts the construction which has been given the statute by such other state. State ex rel. v. Macon County Court, 41 Mo. 453; Northcut v. Edgar, 132 Mo. 265; Burnside v. Wand, 170 Mo. 531. (17) The Legislature of a state has no power to conclusively and arbitrarily say that all discriminations by railroads, regardless of conditions and circumstances, are unlawful. Sloan v. Railroad, 61 Mo. 24; Chicago & Alton v. People, 67 Ill. 11; 2 Hutchinson, Carriers (3 Ed.), sec. 588; Abbot v. Lendenbower, 42 Mo. 162. (18) Sections 1126 and 1160, or the Act of 1872, are unconstitutional and void, because they are in conflict with article 5 and section 1 of article 14 of the amendments to the Constitution of the United States. Cooley's Constitutional Limitations (7 Ed.), pp. 500-1-2-3-4-5-6-18 and 20; 2 Elliott on Railroads, sec. 686; 2 Hutchinson, Carriers (3 Ed.), sec. 574; Nebraska ex rel. v. Railroad, 31 L. R. A. 47; Ragan v. Trust Co., 154 U.S. 1014; Railroad v. Minnesota, 134 U.S. 970; Smyth v. Ames, 169 U.S. 819.

Alexander Graves for respondent.

(1) (a) McGrew v. Railroad, 177 Mo. 533 (approved in Cohn v. Railroad, 181 Mo.), correctly held that section 1126 and section 1134 should stand together and that the latter did not repeal the former by implication especially as the 20th section of the Act of 1887 provided against a repeal by implication, declaring that it was supplemental to former laws, repealing only those in direct conflict. This construction is supported by overwhelming authority. State ex rel. v. County Court, 41 Mo. 459; 26 Am. and Eng. Ency. Law (2 Ed.), 733; Plum v. Lugar, 49 N. J. L. 557; 26 Am. and Eng. Ency. Law (2 Ed.), 732. (b) Before section 1134, which operates only on shipments in the same direction and under similar circumstances, can be construed to repeal section 1126 by implication, the court must find that it covers all the ground of section 1126; i. e., that it operates on shipments in opposite and other directions, regardless of circumstances and conditions. And even then it may be affirmative, cumulative or auxiliary. State ex rel. v. Walbridge, 119 Mo. 389; Hogan v. Guigon, 29 Grattan 709; Supervisors v. Iron Co., 93 U.S. 624; Radebaugh v. Shelly, 6 Ohio St. 316. "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; United States v. Gear, 3 How. (U.S.) 120; Miller v. Edwards, 8 Colo. 528; Bowen v. Lease, 5 Hill (N. Y.) 225. The Act of 1887 copies four sections of the Interstate Commerce Act (Sewell v. Railroad, 119 Mo. 233). Read what the Illinois court said: Tyson v. Postlewait, 13 Ill. 728; Robinson v. Rippey, 111 Ind. 116; Blaine v. Bailey, 25 Ind. 165. (2) If appellant's theory of repeal be adopted, such construction would render the Act of 1887 (sec. 1134) unconstitutional. Article 12, sec. 12, of the Constitution has nothing in it about shipments "under similar circumstances and conditions in the same direction," and free or reduced rates, as has section 1134. The Constitution must be understood and construed in a plain, every-day, common sense manner, as it was by the common people who adopted it. Webb v. Lafayette Co., 67 Mo. 359; Law v. People, 87 Ill. 395; Manley v. State, 7 Md. 135. The variation of the Act of 1887 (sec. 1134), from article 12, section 12, of the Constitution is plain and obvious, if the act be construed as a repeal instead of being cumulative. Webb v. Lafayette County, 67 Mo. 359; State ex rel. v. Walker, 85 Mo. 41; Westport v. McGee, 128 Mo. 164; Devries v. McKoan, 6 N. Y. Legal Obs. 205, 1 Duer 640, 47 Barb. 118, 10 Abb. 350, 19 How. (N. Y.) 99. But the construction placed on these laws in McGrew v. Railroad, 177 Mo. supra, reconciles them; that is what courts seek to do. Cooley on ConLim. (5 Ed.), p. 220; Reid v. Smoulter, 128 Pa. St. 324; Lowery v. Rainwater, 3 Mo.App. 562. (3) (a) In the Revised Statutes of 1879 section 1 of the Act of 1872, after being incorporated and passed as a revised bill, was made sec. 820, R. S. 1879, and sec. 1126 R. S. 1899; and its re-enactment, was in obedience to the mandate of the Constitution. Benton Co. v. Morgan, 163 Mo. 674; Railroad v. Brick Co., 85 Mo. 332. (b) The revision of 1879 is constitutional. State ex rel. v. Ranson, 73 Mo. 86, approved 128 Mo. 440. Cook v. Marshall County, 119 Ia. 396; Commonwealth v. Brown, 91 Va. 773; Yellow River Co. v. Arnold, 46 Wis. 222; State v. Bowers, 14 Ind. 196; Johnson v. Harrison, 47 Minn. 577; Railroad v. State, 104 Ga. 846; People v. Parvin, 74 Cal. 552; Cooley on Con. Lim. (6 Ed.), pp. 172, 175. (c) McGrew v. Mo. Pac., 177 Mo. 533, was correctly decided in all respects. However, if there is any semblance of reason to the contrary, section 1126 could only be affected in so far as it concerns shipments "under similar circumstances and conditions and in the same direction." And of the 39 counts in the petition that would render only one faulty, viz., count 17, amounting to $ 5.37. State v. Morrow, 26 Mo. 141; Purcell v. Ins. Co., 42 N.Y.S. 396; Scales v. State, 47 Ark. 476; McGruder v. State, 40 Ala. 349; Trustees v. Trenton, 30 N.J.Eq. 676; Davis v. Fairbanks, 3 How. (U.S.) 636. (4) Chicago & Alton v. People ex rel., 67 Ill. 11, is not even persuasive authority by reason of the difference in the constitutions of Missouri and Illinois. The Constitution of Missouri leaves no room for a judicial question and declares all discrimination to be unjust. Sec. 12, art. 12...