State v. Chicago & A. R. Co.

• Decision Date: 29 June 1915
• Docket Number: No. 18675.,18675.
• Citation: 265 Mo. 646,178 S.W. 129
• Parties: STATE ex rel. BARKER, Atty. Gen., v. CHICAGO & A. R. CO.
• Court: Missouri Supreme Court

178 S.W. 129

265 Mo. 646

STATE ex rel. BARKER, Atty. Gen., v. CHICAGO & A. R. CO.

No. 18675.

Supreme Court of Missouri.

June 29, 1915.

Rehearing Denied July 12, 1915.

In Banc. Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by the State, on the relation of John T. Barker, Attorney General, against the Chicago & Alton Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John T. Barker, Atty. Gen., and W. T. Rutherford, Lee B. Ewing, T. J. Higgs, and S. P. Howell, Asst. Attys. Gen. (W. M. Williams, of Booneville, W. M. Fitch, of St. Louis, and J. P. Gilmore, of Tulsa, Okl., of counsel), for appellant. Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent. Campbell Cummings, of St. Louis, and Henry L. McCune, of Kansas City, Ernest E. Watson, of St. Paul, Minn., and Clifford B. Allen, of St. Louis, amid curiae. Bresnehen & West, of Brookfield, for A. D. Shipp. J. L. Minnis, of St. Louis, for Wabash R. Co. IN. F. Evans and E. T. Miller, both of St. Louis, for St. L. & S. F. R. Co. S. W. Moore, of Kansas City, for K. C. So. Ry. Co. M. L. Bell, of Chicago, Ill., and Paul E. Walker, of Topeka, Kan., for Rock Island Lines. S. H. West, of St. Louis, for St. L. & S. W. Ry. Co. R. A. Brown, of St. Joseph, for St. J. & G. I. Ry. Co. J. M. Bryson and J. W. Jamison, both of St. Louis, for M., K. & T. Ry. Co. O. M. Spencer, of St. Joseph, for C., B. & Q. R. R. Co. J. F. Green, of St. Louis, and Edw. J. White, of Kansas City, for Missouri Pac. Ry. Co. Gardiner Lathrop, of Chicago, Ill., and Thomas R. Morrow, of Kansas City, for A., T. & S. F. Ry. Co.

GRAVES, J.

In this case the defendant filed a demurrer to plaintiff's petition, which was sustained, and, plaintiff refusing to plead further, judgment was entered up for defendant and against plaintiff. The soundness of that judgment is the issue here. Plaintiff's petition is peculiarly worded, and the case may have to turn upon that wording, and for such reason we deem it best to set out the petition in full. The petition reads:

"Plaintiff, the state of Missouri, for its second amended petition, voluntarily made, leave of court having been first obtained therefor, states that it brings this action at the relation of John T. Barker, Attorney General of the state of Missouri, and relator states that on the 6th day of November, 1912, he was duly elected Attorney General of the state of Missouri, and has since qualified, and is now acting, as said Attorney General of said state of Missouri, and states that the state of Missouri brings this action for itself, and for all other persons similarly situated, and who are hereby invited to enter herein and become parties hereto.

"Plaintiff further states that the defendant is now, and was at all the times hereinafter mentioned, a railroad corporation, duly organized and existing under and by virtue of the laws of the state of Illinois, with authority to sue and liable to be sued as such in the courts of this state, and that said defendant is in possession of and operating a line of railroad from Kansas City, Mo., to St. Louis, Mo., which said railroad passes, among others, through the county of Saline, in said state of Missouri.

"Plaintiff further states: That, in the year 1905, the General Assembly of the state of Missouri passed and enacted acts commonly known and designated as the maximum freight rate laws, to wit, the act of the General Assembly, approved April' 15, 1905, entitled `An act, entitled "An act to amend chapter 12 of the Revised Statutes of Missouri, revision of 1899, entitled `Corporations, Private,' by repealing section 1194 of said Revised Statutes, being part of article IV of said chapter concerning railroad classification—charges—commissioners, and to enact in lieu thereof the following * * * sections providing for the regulation of freight charges by railroads and the recovery of penalties for the violation thereof"' (Laws 1905, p. 102), and the act of the General Assembly, approved April 14, 1905, entitled 'An act to amend article IV, chapter 12 of the Revised Statutes of Missouri of 1899, entitled "Railroad classification, charges, commissioners" by adding a new section thereto, to be known as section 1195a' (Laws 1905, p. 104); said acts fixing and establishing the maximum rates or charges that could thereafter be lawfully made, charged, collected, and received by defendant and other railroads for carrying and transporting freight of the kinds and classes therein specified from points within the state of Missouri to other points therein, which said acts became operative and in effect on the 16th day of June, 1905. That thereafter the General Assembly of the state of Missouri repealed said acts aforesaid, and passed and enacted in lieu thereof, and thus modified the same, the act approved March 19, 1907, entitled `An act to repeal an act of the 43rd General Assembly, approved April 15, 1905, entitled "An act to amend chapter 12 of the Revised Statutes of Missouri, revision of 1899, entitled `Corporations, private,' by repealing section 1194 of said Revised Statutes, being part of article IV of said chapter, concerning railroad classification, charges, commissioners, and to enact in lieu thereof the following new sections providing for the regulation of freight charges by railroads and * * * recovery of Penalties for the violation thereof," and to repeal an act of the 43rd General Assembly, approved April 14, 1905, entitled "An act to amend article IV, chapter 12, of the Revised Statutes of Missouri 1899, entitled `Railroad classification, charges, commissioners' by adding a new section thereto, to be known as section 1195a, fixing the charges for carrying undressed stone, crushed rock and building or paving brick," and to enact la lieu thereof certain new sections, to be known as sections 1194, 1194a1, 1194b1, and 1154c1, providing for the regulation of freight charges by railroads and prescribing * * * punishment for a violation thereof, which new sections shall read as follows' (Laws 1907, p. 171), and also the act, approved March 19, 1907, entitled `An act to amend article IV, chapter 12, Revised Statutes of Missouri of 1899 by adding a new section thereto, to be known as section 1195a, and relating to freight charges and classifications' (Laws 1907, p. 187), which said acts became operative and in effect on the 14th day of June, 1907, fixing and establishing the maximum freight rates and charges that could thereafter be lawfully made, charged, collected, and received by the defendant and other railroads carrying and transporting the kinds and classes of freight therein specified. That the said General Assembly of Missouri also passed and enacted, in the year 1907, the act, approved February 27, 1907, entitled `An act to repeal sections 1191 and 1192 of chapter 12, article IV, Revised Statutes of Missouri 1899, entitled "Railroad classification—charges—commissioners," by striking out sections 1191 and 1192 and enacting the following * * * sections in lieu thereof to be known as sections 1191 and 1192 and 1192a' (Laws 1907, p. 170), fixing and establishing the maximum rates of fares that could thereafter be lawfully made, charged, collected, and received by the defendant and other railroads carrying and transporting passengers from points within the state of Missouri to other points therein, which said rates or fares permitted and allowed to be so made, charged, collected, and received by the defendant became and were at the rate of 2 cents per mile for persons over 12 years of age, and one-half thereof for persons 12 years of age and under. That said maximum freight and passenger rate laws provided for reduced freight and passenger rates, respectively, from what the defendant and other railroads prior thereto had been permitted to charge, and were charging, for freight and passengers carried and transported by the defendant from points within the state of Missouri to other points therein, or what is commonly known and designated as intrastate business or transportation. That on the 16th day of June, 1905, an injunction was issued out of and by the Circuit Court of the United States for the Western Division of the Western District of Missouri, sitting at Kansas City, Mo., enjoining the operation and enforcement of the said maximum freight rate laws of 1905. That thereafter, and on the 13th day of June, 1907, in the said same suit, by supplementary proceedings therein, and as a part thereof, said injunction theretofore granted and subsisting was amended and enlarged so as to enjoin the said maximum freight rate laws of 1907, and also the operation and enforcement of said maximum passenger rate laws were in said same suit, by supplementary proceedings therein, and as a part thereof, enjoined from the 13th day of June, 1907, until the 19th day of June, 1907, but were not further enjoined thereafter until the 8th day of March, 1909, and said defendant complied therewith, and did not charge passenger rates or fares in excess thereof until May 1, 1909. That thereafter, on the 8th day of March, 1909, the injunction and amendments thereto have continued in force and effect until said date said federal court rendered a final decree in said suit and undertook to permanently enjoin the operation and enforcement of said maximum freight and passenger rate laws aforesaid, and, from the dates hereinbefore stated, the operation and enforcement of said maximum freight and passenger rate laws were enjoined until the reversal of said decree by the Supreme Court of the United States, as hereinafter more particularly stated, and, during the times hereinbefore and hereinafter mentioned, defendant herein, as well as the other railroads owning or operating lines of railroad within this state, refused to put into operation and effect said reduced freight and passenger rates, as required by said maximum freight and passenger rate laws, but continued to unlawfully...