E. R. Darlington Lumber Company v. Missouri Pacific Railway Company

• Decision Date: 25 February 1909
• Citation: E. R. Darlington Lumber Company v. Missouri Pacific Railway Company, 116 S.W. 530, 216 Mo. 658 (Mo. 1909)
• Parties: E. R. DARLINGTON LUMBER COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

116 S.W. 530

216 Mo. 658

E. R. DARLINGTON LUMBER COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

February 25, 1909

Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.

Reversed and remanded.

Martin L. Clardy and Henry G. Herbel for appellant.

(1) Inasmuch as none of the lumber in any of these cars weighed as much as sixty thousand pounds, plaintiff was only entitled to forty-eight hours free time, notwithstanding the lumber may have been loaded in cars of sixty thousand pounds capacity or greater. There ought to be no difficulty in so construing this act. That appears to be the common-sense view of the language of the act. It is not the "capacity" of the car that is unloaded, but the lumber in the car. The word "capacity" was evidently used in this act in the same sense that the word "cargo" is used in marine shipping contracts, and was intended to mean that the car should be laden to its full carrying capacity, viz., sixty thousand pounds, before the shipper would be entitled to an additional day's time for unloading. Flanagan v. Demarest, 3 Robertson (N. Y.) 181; Kreuger v. Blanck, 5 Ex. L. R. 183; Sargent v. Reed, 2 Strange 128; Holy Trinity Church v United States, 143 U.S. 459; United States v Kirby, 7 Wall. 486; Carlisle v. United States, 16 Wall. 152; State v. Clark, 5 Dutcher (29 N. J. Law) 98; Kane v. Railroad, 112 Mo. 39; Harrington v. Railroad, 71 Mo. 384; Proctor v. Railroad, 64 Mo. 122; Verdin v. St. Louis, 131 Mo. 163; Vondiest v. Railroad, 77 S.W. 633; State v. Crenshaw, 22 Mo. 458; Railroad v. Schulte, 91 S.W. 806; Guy v. Pond, 101 U.S. 434; Railroad v. Dougherty, 91 S.W. 772; Sams v. Railroad, 170 Mo. 175; Johnson v. Railroad, 104 Mo.App. 588; State ex inf. v. Term. Assn., 182 Mo. 284; Railroad v. Smith, 173 U.S. 694. (2) Are the parts of this demurrage act in controversy here constitutional? We contend that they are not for the reason that the legislators have chosen an arbitrary standard, which has no just relation to the purpose for which the law was enacted. In other words, the mere selection of a sixty-thousand-pound car as a standard for determining the time that a shipper shall have to unload the contents of the car, regardless of its weight, has no reasonable grounds for a basis, and is discriminatory in its tendencies, and is, therefore, obnoxious to the equality clause of the fourteenth amendment to the Constitution of the United States. Railroad v. Ellis, 165 U.S. 165; Deppe v. Railroad, 36 Iowa 55; Railroad v. Smith, 173 U.S. 694; Stone Co. v. Railroad, 13 Int. Com. Rep. 569; Yick Wo v. Hopkins, 118 U.S. 373; State ex rel. v. Ashbrook, 154 Mo. 395. (3) That this Demurrage Act does not apply to the interstate shipments in controversy is settled by the decision of our Supreme Court in State ex inf. v. Railroad, 176 Mo. 713. See McNeill v. Railroad, 202 U.S. 559; Wilson Produce Co. v. Railroad, 14 I. C. C. 173; Interstate Stock Yards Co. v. Railroad, 99 F. 472.

George V. Reynolds for respondent.

(1) It is presumed that the Legislature intended to impart to its enactments such a meaning as will render them operative and effective and to prevent persons from eluding and defeating them. Accordingly, in case of any doubt or obscurity the construction will be such as to carry out these objects. Black on Interpretation of Laws, sec. 49, p. 106; The Emily and the Caroline, 9 Wheat. 381; Simmons v. California Powder Works, 7 Colo. 285; Thompson v. State, 20 Ala. 54; Opinion of the Justices, 22 Pick. 571. (2) Every act of the Legislature is presumed to be constitutional until the contrary is shown, and doubts are resolved in favor of the validity of the act. Black on Int. of Laws, p. 93. (3) The words of a statute are to be taken in their popular meaning unless technical terms or words of art. (4) Regulation of demurrage charges by a State is within its power. An agreement or State legislation affecting interstate commerce merely indirectly, is valid. Hopkins v. United States, 171 U.S. 594; Steamship Co. v. Portwarders, 6 Wall. 31; Munn v. Illinois, 94 U.S. 113; Railroad v. Iowa, 94 U.S. 163; Peck v. Railroad, 164 U.S. 177. (5) A State can enact such regulations, at least with respect to a railroad corporation of its own creation, as are not directed against interstate commerce, but which only incidentally or remotely affect it, and are reasonably designed to subserve the convenience of the public. Railroad v. Ohio, 173 U.S. 308. (6) The Interstate Commerce Commission has no jurisdiction over demurrage charges fixed by a State after delivery to the consignee has been completed.

OPINION

GRAVES, J.

Plaintiff, a manufacturing business corporation under the laws of Missouri, brings this action in replevin to recover from defendant, a railway corporation under the laws of Missouri, the possession of certain specifically described lumber of the alleged aggregate value of $ 1,037.50, and contained in four cars, specifically described in the petition. In the complaint it is not only alleged that the defendant had wrongfully detained said lumber, but that "said detention is wrongful, malicious, willful and oppressive," and judgment is asked for the recovery of said lumber, together with $ 1,000 for the wrongful detention thereof, and also for $ 3,000 punitive damages and costs.

By answer the defendant first specifically denied that it had or at the institution of the suit was wrongfully detaining said lumber, but pleaded the facts as to the detention of the lumber by it. The answer then pleads the facts specifically as to each carload of the lumber. Two of the cars were intrastate shipments, and two of them interstate shipments.

As to the first car in question, the answer says:

"Now comes said defendant and for its second amended answer, by leave of court filed, to the petition in the above-entitled cause, denies that at the time this suit was instituted, or at any time, it wrongfully detained from plaintiff any of the lumber described in said petition.

"Avers that it is a common carrier of freight for hire in the city of St. Louis, and State of Missouri, and is also engaged in switching cars containing freight delivered to it by connecting common carriers at St. Louis, Missouri, for delivery to consignees thereof on private switch tracks connecting industries, located on or near its tracks, such as plaintiff's; that on the 17th day of June, 1905, it received at St. Louis, Missouri, for delivery to plaintiff on its private switch track in its lumber yards in said city, at Chouteau and Vandeventer avenues, from the Terminal Railroad Association of St. Louis, a connecting common carrier, a carload of yellow pine lumber in car No. 18894, St. Louis & Southwestern Railroad, which had been shipped to plaintiff by the consignor thereof from Pineville, Louisiana, a station on the Louisville Railway & Navigation Company's railway, which said car had a capacity of 60,000 pounds and the lumber therein weighed 45,000 pounds; that on receipt of said car loaded with lumber, from the Terminal Railroad Association of St. Louis as aforesaid, this defendant served a written notice on the plaintiff herein in the city of St. Louis, on the 17th day of June, 1905, and before 5 o'clock p. m. of said day, informing said plaintiff that said car of lumber was on hand in its yards at St. Louis, and was ready to be delivered to plaintiff at that time for unloading, or other disposition, and that at said time the switch track in plaintiff's yard aforesaid was occupied by other cars, so that a delivery of said car to plaintiff, on said track, at that time, could not be effected by defendant, and that unless directions for disposition of said car were given by plaintiff to this defendant within forty-eight hours after 7 a. m. of June 21, 1905, a demurrage charge of one dollar per day, or fraction of a day, would be assessed and charged against said plaintiff, by this defendant, for the detention and use of said car by plaintiff; that it was unable to place said car on plaintiff's said switch track on account of said track being occupied by other cars consigned to plaintiff from the time said notice was given to plaintiff until July 1, 1905, when plaintiff requested defendant to place said car on said switch and tendered to it nine dollars, being for nine days, at the rate of one dollar per day, for the demurrage charges accrued thereon from 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on a basis of seventy-two hours free time. That defendant refused to accept said nine dollars in full payment and satisfaction of the demurrage charges that had accrued on said car and deliver said car to plaintiff, because it claimed that there were ten days' demurrage charges due it on said car at the rate of one dollar per day from said 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on the basis of forty-eight hours free time, under its rules and the laws of the State of Missouri, then in force; that plaintiff refused to pay said demurrage charges to defendant, and defendant refused to deliver said car to plaintiff until said demurrage charges were paid, and said car remained in the possession of defendant until taken out of its possession on July 11, 1905, by the sheriff of the city of St. Louis, in pursuance of the order of delivery issued by this Honorable Court in this case; that from the first day of July to said 11th day of July, 1905, there had accrued on said car, demurrage charges of seven dollars, being for seven days at the rate of one dollar per day, which plaintiff also refused to pay defendant."

We shall omit what is said of the other three cars for the same questions of facts are pleaded and the same laws invoked. That is to say, for all practical...