State v. Missouri, Kansas & Texas Railway Company

• Decision Date: 19 December 1914
• Parties: THE STATE v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY
• Court: Missouri Supreme Court

172 S.W. 35

262 Mo. 507

THE STATE v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY

Supreme Court of Missouri

December 19, 1914

Writ denied.

J. W Jamison for defendant.

(1) Section 8396, discriminating by one-half in passenger fares in favor of the organized militia of the State, is arbitrary and capricious, and violates the express command of section 14 of article 12, Constitution of the State, which makes it the duty of the General Assembly to enact laws to prevent unjust discrimination in passenger tariffs on the different railroads of the State. For the same reasons, and on the further ground that said statute seeks to deprive defendant of the equal protection of the law, and to take its property without due process of law for the benefit and use of the State of Missouri, the officers and members of the organized militia of the State, and for the benefit of the United States and its National Guard, the law is in conflict with section 30 of article 2 of the Constitution of the State of Missouri, and section 1 of article 14 of the Amendments to the United States Constitution. Said statute is also in conflict with section 23 of article 12, Constitution of Missouri, which expressly prohibits discrimination by railroads in charges or facilities for transportation between transportation companies and individuals, or in favor of either in that said statute expressly commands and requires such discrimination in favor of the organized militia and against all persons who are non-members of that organization. Ex parte Gardner, 113 P. 1054, 33 L.R.A. (N S.) 956; Railroad v. Smith, 173 U.S. 684; McCully v. Railroad, 212 Mo. 1. (2) Section 8396 is an attempt to exercise the power of eminent domain, rather than the police power, as it takes private property for public use, that is, for the benefit and use of the State of Missouri and the United States and members of the organized militia and National Guard. The distinction between the two powers should be borne in mind. 22 Am. & Eng. Ency. Law (2 Ed.), 916, 938.

John T Barker, Attorney-General, Lee B. Ewing, and William M. Fitch, Assistant Attorneys-General, for plaintiff.

(1) The one cent rate provided for the State to pay for carrying her militia is proper, and the statute is neither discriminatory in its effect nor unreasonable in its classification. There can be no unjust discrimination in a rate statute where the lower rate applies to the State itself. The State has the right to require the railroad company to give this service, the same as the State has the right to require it to pay taxes, to serve and promptly transport passengers and freight, to protect the people from injury as far as may be possible, as well as to do many other things of such nature. That provision of the Constitution relied upon by defendant to sustain this ground of its demurrer, does not say that the State shall not fix a rate for the transportation of her own troops. All that is intended by the section of the Constitution relied upon by dedefendant is that the railroad company shall not be permitted to fix different rates of transportation for the same class of freight or passengers. State ex rel. v. Simpson, 118 Minn. 380; Railroad v. United States, 76 F. 186; Interstate Commerce Comm. v. Railroad, 145 U.S. 278; Commonwealth v. Railway, 187 Mass. 436; Willcox v. Gas Co., 212 U.S. 19. (2) The third ground of defendant's demurrer charges that Sec. 8396, R. S. 1909, is in conflict with section 30, article 2, of Missouri Constitution, and section 1, article 14, of the Amendments of the United States Constitution, (a) for the reason that the classification made by said act is purely arbitrary; (b) and seeks to deprive this defendant of the equal protection of the law, (c) and to take its property without due process of law. The classification is not arbitrary, and we do not know in which Constitution or what part of either Constitution there is a prohibition against the State in making such classification; in fact, there is no classification as far as the State's right to fix maximum charges is concerned. There is only a reservation by the sovereign power of the State in dealing with the corporation to require the corporation to transport the State's troops or militia at a certain rate, when the defendant was licensed to do business in the State of Missouri, by accepting its license, it has agreed with the State of Missouri to perform this identical act. Julian v. Star Pub. Co., 209 Mo. 67; Harvester Co. v. Missouri, 34 U.S. S.Ct. 859; State ex rel. v. Simmons, 118 Minn. 383; State v. Railroad, 242 Mo. 339; Roeder v. Robertson, 202 Mo. 522; Chilton v. Railroad, 114 Mo. 18; Younger v. Judah, 111 Mo. 303; Railroad v. State, 216 U.S. 262. (3) The fourth ground of defendant's demurrer is based upon sections 12 and 23, article 12, of the Constitution of Missouri. These only apply to railway companies and prohibit them from making certain charges to the people generally, and do not prohibit the State in the exercise of the sovereign power from requiring a service to be rendered to the State at a less figure than is rendered to the public generally. Willcox v. Gas Co., 212 U.S. 19; Interstate Commerce Com. v. Railroad, 145 U.S. 278; Railroad v. U.S. 76 F. 189.

FARIS, J. Lamm, C. J., Brown and Walker, JJ., concur; Woodson, J., concurs and also for reasons given in case of In re Gardner, 84 Kan. 264; Graves, J., concurs in separate opinion; Bond, J., dissents.

OPINION

In Banc

Mandamus.

FARIS J.

-- 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, Missouri, 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 22nd day of May, 1914, a part of said National Guard, to-wit, Capt. W. S. Moore and fifteen 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 sixteen 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 sum 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."

Defendants 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 of 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 fifteen men to go to Nevada, Missouri, and engage in target practice was not military duty within the meaning of said section 8396, Revised Statutes 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...