State v. Missouri, K. & T. Ry. Co.

• Decision Date: 19 December 1914
• Docket Number: No. 18352.,18352.
• Citation: 172 S.W. 35
• Parties: STATE v. MISSOURI, K. & T. RY. CO.
• Court: Missouri Supreme Court

172 S.W. 35

STATE v. MISSOURI, K. & T. RY. CO.

No. 18352.

Supreme Court of Missouri.

December 19, 1914.

1. EVIDENCE (§ 23) — JUDICIAL NOTICE — EXPENSE OF TRAVEL.

The court judicially knows that the organized militia of the state, when traveling on orders from the Governor, travels at the expense of the state.

2. CARRIERS (§ 13) — DISCRIMINATION — ONE-CENT MILITIA FARE LAW.

The one-cent militia fare law (Rev. St. 1909, § 8396) is not in violation of Const. art. 12, § 23, forbidding discrimination between or in favor of transportation companies and individuals, as it is a case of discrimination in favor of the state or the United States if it should be found that the latter recoups the state for the outlay.

3. CARRIERS (§ 13) — DISCRIMINATION — ONE-CENT MILITIA FARE LAW.

The one-cent militia fare law (Rev. St. 1909, § 8396) violates Const. art. 12, § 14, providing that the General Assembly shall pass laws to prevent unjust discrimination in passenger tariffs etc., conceding that a one-cent fare is unjust discrimination, as the Legislature may not fail to carry out the command of the Constitution and do the diametrically contrary thing.

4. CARRIERS (§ 13) — DISCRIMINATION — APPLICATION TO STATE.

Const. art. 12, § 14, and Rev. St. 1909, § 3232, forbidding discrimination, is binding upon the state, notwithstanding that by the Constitution railroads are declared to be public highways.

5. EMINENT DOMAIN (§ 3) — CONSTITUTIONAL PROVISIONS — RAILROADS — "PUBLIC HIGHWAY."

That by Const. art. 12, § 14, railroads are made "public highways" does not nullify the provisions of Const. art. 2, § 21, which forbids the taking of private property for public use without just compensation.

6. CARRIERS (§ 13) — DISCRIMINATION — UNJUST DISCRIMINATION.

Under Const. art. 12, § 14, forbidding unjust discrimination in railroad rates, it does not follow that because a discrimination is apparent it is an unjust discrimination.

7. CARRIERS (§ 13) — UNJUST DISCRIMINATION — COMMON LAW.

It needs neither a statute nor a constitutional provision to make an unjust discrimination in railroad rates unlawful, for such discrimination was forbidden by common law.

8. CARRIERS (§ 13) — DISCRIMINATION IN RATES.

If the difference in railroad rates is based upon a reasonable and fair difference in conditions which equitably and logically justify a different rate, it is not an unjust discrimination.

9. CARRIERS (§ 13) — DISCRIMINATION IN RATES — UNJUST DISCRIMINATION — ONE-CENT MILITIA FARE LAW.

The one-cent militia fare law (Rev. St. 1909, § 8396), providing that railroads shall carry between points in the state the National Guard when ordered in military duty by the Governor at one cent a mile for each officer and enlisted man, with not to exceed 100 pounds of baggage or camp equipage, constitutes unjust discrimination under Const. art. 12, § 14, providing that the General Assembly shall pass laws to prevent unjust discrimination in passenger rates, in view of Rev. St. 1909, § 3232, fixing the maximum fare for adult passengers at two cents a mile and for children under 12 at one cent a mile, as such rate is prima facie

a reasonable rate, and there is nothing to show that the cost of transporting the National Guard would be cheaper than carrying any other passenger.

Bond, J., dissenting.

In Banc. Original mandamus proceedings by the State against the Missouri, Kansas & Texas Railway Company. Writ denied.

Mandamus, brought originally in this court. Plaintiff, upon filing a petition containing apt allegations, procured the issuance by us of an alternative writ of mandamus, the pertinent part of which reiterated the allegations of the petition, and, omitting caption and formal parts, is as follows:

"Comes now the state of Missouri and represents and shows to the court that the Missouri, Kansas & Texas Railway Company is a corporation duly organized and existing according to law and owning and operating a line of railway from Jefferson City to Nevada, Mo., wholly within this state.

"Your petitioner further shows that this state has formed and maintains an organized militia known and designated as the National Guard of Missouri, and that, under and by virtue of section 8396 of Revised Statutes of 1909 of said state, it was and is the duty of all companies and corporations owning or operating lines of railroad in this state to transport said organized militia or National Guard over the lines of said railroads between points wholly within this state, at the rate of one cent per mile for each man belonging to said organization, whenever said National Guard is ordered by the Governor of this state to travel on military duty in this state.

"Your petitioner further shows that on the 22d day of May, 1914, a part of said National Guard, to wit, Capt. W. S. Moore and 15 men of Company L, Second Regiment, infantry, was ordered by the Governor of this state to go from Jefferson City to Nevada, in this state, on military duty, to wit, for target practice at the government rifle range near Nevada; that on said date Adjutant General John B. O'Meara, by order of the Governor, and acting for this petitioner, applied to the said Missouri, Kansas & Texas Railway Company for transportation for the said 16 members of said Company L, Second Regiment, National Guard, from Jefferson City to Nevada, over the line of said railway company at said rate of one cent per mile for each man so transported; that the distance from Jefferson City to Nevada over defendant's railway is 174 miles, and that said adjutant General tendered to said railway company the sum of $27.84 for the transportation aforesaid.

"Your petitioner further states that said Missouri, Kansas & Texas Railway Company refused to accept said sums so tendered and refused to issue transportation to said organized militia, and failed and refused to transport said militia as by law it is required to do, and asserts that it will not in future transport said National Guard at said rate."

Defendant demurred to said alternative writ upon one ground and divers specifications, which demurrer, that the said ground and the specifications thereunder may be clearly seen, we likewise set out, omitting caption and formal parts, to wit:

"(1) Because it does not state facts sufficient to constitute a cause of action.

"(2) Because the one-cent militia fare law (section 8396, Revised Statutes of 1909 of Missouri) is in violation of section 14 of article 12 of the Constitution of Missouri, being an unjust discrimination against other passengers in the state.

"(3) Because said one-cent fare law deprived defendant of the equal protection of the law and takes its property without due process of law, and is in violation of section 1, article 14, of the Constitution of this state.

"(4) Because said section is in violation of sections 12 and 23 of article 12 of the Constitution of this state, which prohibit discriminations in charges or facilities for transportation between companies and individuals, or in favor of either.

"(5) Because said one-cent militia fare law is confiscatory and in violation of section 1 of the fourteenth amendment to the Constitution of the United States, and section 30 of article 2 of the Constitution of Missouri.

"(6) Because the order to Capt. W. S. Moore and 15 men to go to Nevada, Mo., and engage in target practice was not military duty within the meaning of said section 8396, Revised Statutes of 1909."

From the pertinent part of the alternative writ as we set it out above, and from the above demurrer thereto, the points up for ruling will be clearly seen.

The statute, the constitutionality of which is the only bone of contention, will be found set out at length in the subjoined opinion, to which reference is likewise made for further facts, should such become necessary.

John T. Barker, Atty. Gen., and Lee B. Ewing and Wm. M. Fitch, Asst. Attys. Gen., for the State. J. W. Jamison, of St. Louis, for defendant.

FARIS, J. (after stating the facts as above).

It is patent that the demurrer to the alternative writ of mandamus is well taken, if, as defendant contends, section 1 of "An act to establish the maximum rates to be charged by railroad companies for transporting the organized" militia, etc. (Laws 1909, pp. 368 and 369), now section 8396, is unconstitutional. In the last analysis this is the only question in the case. Other matters of minor moment are urged, but none of the latter is of any decisive importance in a final determination of the real question in issue.

In order that we may have the matter under discussion plainly before us, we set out said section 8396 below:

"Whenever it shall be necessary for the organized militia of the state, designated the National Guard of Missouri, to travel on any railroad between points wholly within this state on military duty, ordered by the Governor, the rate charged shall not exceed one cent per mile for the transportation of each officer and enlisted man, with not to exceed one hundred pounds of baggage or camp equipage, and the individual, company or corporation owning, operating, controlling or leasing such road or part thereof shall be limited to such compensation therefor, and shall not charge, demand or receive any greater rate or compensation for such service."

Defendant, to escape the force of the above section, says that it violates the provisions of section 23 of article 12 of our Constitution, which reads thus:

"No discrimination in charges or facilities in transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise; and no railroad company, or any lessee, manager or employé thereof, shall make any preference in furnishing cars or motive power."

And that it also violates the provisions of section 14 of article 12 of the Constitution of Missouri, which thus provides:

"Railways heretofore constructed, or that may hereafter be constructed in...