Public Service Com'n v. Missouri Pac. R. Co.
| Decision Date | 11 November 1946 |
| Docket Number | 39999 |
| Citation | 197 S.W.2d 665,355 Mo. 679 |
| Parties | Public Service Commission of Missouri, Appellant, v. Missouri Pacific Railroad Company, a Corporation, and Guy A. Thompson, Trustee |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court; Hon. C. H. Jackson Judge.
Affirmed.
John P Randolph, General Counsel, and Wilbur F. Hall, Assistant Counsel, for appellant Public Service Commission; Delmar Dail and Frank Mattes for Brotherhood of Railroad Trainmen.
(1) The powers and duties of the Public Service Commission imposed by statute in relation to railroads as enacted in the Act of 1913, creating the Public Service Commission, has been retained by the legislature and as are now expressed by Secs 5619, 5641, R.S. 1939: (2) There was no repeal of Section 5212, R.S. 1939, by implication or otherwise by the enactment of the Public Service Commission Law, the repealing clause of that law being Section 5719, R.S. 1939. State ex rel. v. Patterson, 207 Mo. l.c. 145. (3) The Public Service Commission Act did not revise the whole subject matter of the old railroad law and the intention to substitute the Public Service Commission Act for the old railroad law is clearly negatived by the Public Service Commission Act itself, which specifically repeals certain sections "and all other acts and parts of acts in conflict with this act," and then further specifically provides: "The provisions of this act are not intended to repeal any law now in force unless in direct conflict therewith, but is intended to be supplemental to such laws." Section 5719, R.S. 1939. (4) Defendant (Respondent) sets out in its answer and cites particularly Section 5623, R.S. 1939 of our Public Service Commission Law, as supporting its contention that Section 5212 has been repealed by implication or was superseded or rendered invalid. Section 5623 gives the Public Service Commission jurisdiction over complaints relating to the "regulation, practices, equipment, appliances and services of common carriers and railroad corporations in respect to the transportation of persons or property within the state."
Thomas J. Cole, Ragland, Otto, Potter & Embry, James A. Potter and Leon P. Embry for respondents.
(1) Section 5212 was repealed by the Public Service Commission Act, Chapter 35, Revised Statutes of Missouri for 1939. (2) Said Section 5212 was enacted in 1853. Except for changing the "z" in "merchandize" to an "s," it has remained unchanged. Laws 1852-3, p. 142, sec. 45; Sec. 5212, R.S. 1939. (3) The Public Service Commission law was not enacted until 1913. Laws 1913, p. 557. (4) The Public Service Commission law is, therefore, the later of the two laws. The fact that the old 1853 law, which now appears as said Section 5212, has been carried forward through the various revisions of the statutes since 1853 does not detract from the force of the Public Service Commission law as a repealer thereof. Such carrying forward of the 1853 law operates only as a continuance of its original existence and does not operate to make it an original act. Hence, with reference to other statutes, the 1853 law (now said Section 5212) is to be construed as of the date of its original enactment and not as of the date of its carrying forward into any subsequent revision of the statutes. Sec. 683, R.S. 1939; Dillbeck v. Johnson, 232 Mo.App. 743, 122 S.W.2d 412; Dillbeck v. Johnson, 344 Mo. 845, 129 S.W.2d 885. (5) The Public Service Commission law repeals all laws in direct conflict therewith. Sec. 5719, R.S. 1939. (6) Section 5212 is in direct conflict with the Public Service Commission law and was, therefore, repealed by the latter. Secs. 5623, 5626, R.S. 1939. (7) Said Section 5212, if in force, would constitute a direct interference with the power vested in the Public Service Commission under said Section 5623 to regulate, among other things, the practices of carriers with reference to the safety or unsafety of such practices. The two are so irreconcilable that it must be said that said Section 5212 was repealed by the Public Service Commission law. State ex rel. v. Public Service Commission, 275 Mo. 60.
This is a proceeding to review the decision of the Springfield Court of Appeals in the case of Public Service Commission v. Missouri Pacific R. Co. et al., reported in 194 S.W.2d 314.
The Brotherhood of Railroad Trainmen filed with appellant its application for an order requiring the discontinuance by respondents of carrying a baggage car on the rear of its train No. 11 from St. Louis to Kansas City. After a hearing before appellant, appellant made an order directing respondents to discontinue the practice, the sole reason assigned being that respondents' practice violates Section 5212, R.S. Mo. 1939.
Counsel for appellant then brought an injunction suit in the circuit court of Cole County against respondents to enforce this order. Among other defenses, respondents pleaded in their answer that Section 5212, supra, had been repealed by implication by the enactment in 1913 of the Public Service Commission laws. By agreement the case was transferred to the Maries County circuit court, and after a trial that court entered a judgment denying the injunction. Appellant appealed the case to the Springfield Court of Appeals and the judgment of the trial court was affirmed for the reason that Section 5212 was repealed by implication when the Public Service Commission Act became effective.
Section 5212 was enacted in 1853 and reads as follows:
"In forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear of passenger cars; and if they, or any of them, shall be so placed, the officer or agent who so directed or knowingly suffered such an arrangement, and the conductor of the train, shall be deemed guilty of a misdemeanor, and be punished accordingly."
As previously stated, respondents contend that this section was repealed by implication by the enactment of the Public Service Commission laws and particularly by Sections 5623 and 5626, R.S. Mo., 1939, and both the trial court and the court of appeals sustained this contention. Therefore, the question for determination is: Was Section 5212, supra, repealed by the enactment of the Public Service Commission Laws?
The pertinent part of Section 5623, supra, is paragraph 2, which reads as follows: "Whenever the commission shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the regulations, practices, equipment appliances or service of any such common carrier, railroad corporation or street railroad corporation in respect to transportation of persons or property within this state are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and services thereafter to be in force, to be observed and to be used in such transportation of persons and property and so fix and prescribe the same by order to be served upon every common carrier, railroad corporation and street railroad corporation to be bound thereby; and...
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