Phillips v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1885
• Citation: 86 Mo. 540
• Parties: PHILLIPS v. THE MISSOURI PACIFIC RAILWAY COMPANY Appellant.
• Court: Missouri Supreme Court

86 Mo. 540

PHILLIPS

v.THE MISSOURI PACIFIC RAILWAY COMPANY Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Smith & Krauthoff for appellant.

(1) Section 2835, Revised Statutes, is in violation of article four, section fifty-three, subdivision seventeen, of the constitution of Missouri, which provides that the general assembly shall not pass any local or special law regulating the jurisdiction of justices of the peace. “A special law is one referring to a selected class.” Earle v. Board of Education, 55 Cal. 489; State ex rel. v. Wilcox, 45 Mo. 465; State v. Hermann, 75 Mo. 340; Cooley's Const. Lim. 391; Bouv. Law Dic., Tit. “Special.” It is not too late to raise this objection for the first time in this court. The question of jurisdiction is never waived. R. S., 1879, sec. 3519; State ex rel. v. Griffith, 63 Mo. 545; Bateson v. Clark, 37 Mo. 31; Nance v. Ry. Co., 79 Mo. 196; Graves v. McHugh, 58 Mo. 499. (2) It is also in violation of the constitution of the United States, article fourteen, section one, which provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” Cooley on Constitutional Limtations, secs. 128, 129, and note; Potter's Dwarris on Stat. and Const., pp. 52, 53; 1 Kent Com. 459; State ex rel. Henderson v. Boone Co., 50 Mo. 317; State v. New Madrid Co., 51 Mo. 86, 88; Hall v. Bray, 51 Mo. 293; State ex rel. v. Wilcox, 45 Mo. 465; Thomas v. Board of Com., 5 Ind. 5; Gentile v. TheState, 29 Ind. 409; Devine v. Comrs. of Cook Co., 84 Ill. 592; Earle v. S. F. Board of Equalization, 55 Cal. 490; Williams v. Bidleman, 7 Nev. 70; State v. Hammer, 42 N. Y. 435. (3) Section 809, Revised Statutes, is in violation of section one, article fourteen, amendments to the constitution of the United States, and section twenty, article two, section thirty, article two, section fifty-three, article four, and section eight, article eleven, of the constitution of Missouri.

Draffen & Williams for respondent.

That section 809, Revised Statutes, is constitutional, has been too frequently determined by this court, to be now seriously considered, and the judgment should be affirmed. Spealman v. The Mo. Pac. Ry. Co., 71 Mo. 434; Cummings v. The St. L., I. M. & S. Ry. Co., 70 Mo. 570; Barnett v. A. & P. Ry. Co., 68 Mo. 56.

NORTON, J.

This action was commenced before a justice to recover double damages under section 809, Revised Statutes, for stock alleged to have been killed by defendant. Judgment was obtained in the justice's court, from which defendant appealed to the circuit court, where judgment was again rendered for plaintiff, from which an appeal is prosecuted to this court.

It is argued by defendant's counsel that section 809, Revised Statutes, known as the double damage act, is in contravention both of the federal and state constitutions and, therefore, void. This question was considered in the cases of Barnett v. Ry Co., 68 Mo. 56; Spealman v. Ry. Co., 71 Mo. 434; Humes v. Ry. Co., 82 Mo. 221, and in all of them the constitutionality of the act was affirmed. In the case last cited it is exhaustively considered by Commissioner Philips, who wrote the opinion, and we do not feel called upon to add anything to what is there said. Since the above cases were decided the Supreme Court of the United States in the case of Terry v. Mo. Pac. Ry. Co., (not yet reported), has expressly held said section 809, to be not repugnant to the constitution of the United States.

It is also insisted by counsel that section 2835 of the Revised Statutes, conferring jurisdiction upon justices of the peace of “all actions against any railroad company in the state to recover damages for injuring or killing horses, etc., without regard to the value of such animal or the amount claimed for killing or injuring the same,” is in violation of section fifty-three, subdivision seventeen, article four of the state constitution, and is, therefore, void. The section on which the argument is based is as follows: “The general assembly shall not pass any local or special law regulating the jurisdiction of justices of the peace.”

In the determination of a question involving the constitutionality of a law, it is a settled rule for the guidance of courts that the acts of the legislature are presumed to be constitutional, and it is only where they manifestly infringe on some provision of the constitution that they can be declared void for that reason. In case of doubt every possible presumption not directly inconsistent with the language and subject matter is to be made in favor of the constitutionality of the act. State v. Able, 65 Mo. 357. Guided by this rule we can reach no other conclusion than to pronounce the act in question valid. Section 2835 is a general and not a local or special law. It does not apply alone to a single justice of the peace, or to the justices...