Transport Mfg. & Equipment Co. v. Toberman, 45406

• Decision Date: 08 April 1957
• Docket Number: No. 45406,45406
• Citation: 301 S.W.2d 801
• Court: Missouri Supreme Court
• Parties: TRANSPORT MANUFACTURING & EQUIPMENT COMPANY, a Corporation, and Riss & Company, Inc., a Corporation, Plaintiffs-Appellants, v. Walter J. TOBERMAN, Secretary of State of Missouri, Missouri State Highway Commission, Harris D. Rodgers, Chairman, Missouri State Highway Commission, M. E. Morris, Director of Revenue of Missouri, Missouri State Highway Patrol, Col. Hugh H. Waggoner, Supt., Missouri State Highway Patrol, Defendants-Respondents.

Page 801

301 S.W.2d 801

TRANSPORT MANUFACTURING & EQUIPMENT COMPANY, a Corporation, and Riss & Company, Inc., a Corporation, Plaintiffs-Appellants, v. Walter J. TOBERMAN, Secretary of State of Missouri, Missouri

State Highway Commission, Harris D. Rodgers, Chairman,

Missouri State Highway Commission, M. E. Morris, Director of

Revenue of Missouri, Missouri State Highway Patrol, Col.

Hugh H. Waggoner, Supt., Missouri State Highway Patrol,

Defendants-Respondents.

No. 45406.

Supreme Court of Missouri, En Banc.

April 8, 1957.

Rehearing Denied May 13, 1957.

Tweedie Fisher, Jefferson City, A. Alvis Layne, Jr., Washington, D. C., John B. Gage, Kansas City, for appellants, Transport Manufacturing & Equipment Co., and Riss & Co., Inc., Jess W. Van Ert, Laird P. Bowman, Kansas City, T. S. L. Perlman, Lester M. Bridgeman, Washington, D. C., of counsel.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondents, Gage, Hillix Moore & Park, Kansas City, of counsel.

WESTHUES, Judge.

Plaintiffs filed this suit in the Circuit Court of Cole County alleging in their petition that it is an action for a declaratory judgment and for an injunction pursuant to Sections 526.010-526.140 RSMo 1949, V.A.M.S.

The record shows that on September 19, 1955, the trial court heard plaintiffs on their application for a temporary order of restraint or injunction. On September 30, 1955, the court denied this request. Thereafter, various motions to dismiss were filed by the defendants. One of those was a motion to dismiss on the ground that the petition failed to state facts upon which relief could be granted. On November 25, 1955, the court sustained the motions to dismiss.

On December 3, 1955, the order of dismissal was set aside and plaintiffs were granted 30 days to plead further. In January, 1956, plaintiffs were given still more time to plead further. Thereafter, on January 20, 1956, the court dismissed the case for failure to plead further. On January 30, 1956, notice of appeal was filed and the appeal was taken to this court by plaintiffs.

It was alleged in the petition that plaintiff Transport Manufacturing & Equipment Company is a foreign corporation organized under the laws of the State of Illinois and having its general offices in Kansas City, Jackson County, Missouri; that it also holds certificates to do business in Indiana, Kentucky, Massachusetts, Michigan, Missouri, New Jersey, Ohio, Oklahoma, and Pennsylvania. It was stated that Riss & Company, Inc., is a foreign corporation organized under the laws of the State of Colorado and having a general office in Kansas City, Jackson County, Missouri; that it holds certificates to do business in Missouri, Illinois, Kentucky, Oklahoma, and West Virginia; that it maintains principal offices in the states of Colorado, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Texas, West Virginia, and the District of Columbia.

The defendants named in the title or caption of the petition are Walter J. Toberman, Secretary of State of Missouri; State Highway Commission of Missouri and its Chairman, Harris D. Rodgers; M. E. Morris, Director of Revenue of Missouri; Missouri State Highway Patrol and Col. Hugh H. Waggoner, its Superintendent. It was stated in the petition that the defendants at all times mentioned in the petition were functioning administrative officials as defined in Section 536.010(1) RSMo 1949, V.A.M.S., with powers to regulate interstate and intrastate motor carriers over the highways of the State. In the course of the opinion, plaintiff Transport Manufacturing & Equipment Company will be referred to as 'TM&E' and Riss & Company, Inc., as 'Riss.'

Plaintiffs further alleged that TM&E owns large numbers of 'over-the -road tractor-trailer trucks' which were leased to plaintiff Riss; that for a number of trucks, titles and licenses had been obtained in its name in states other than Missouri; that for some of its trucks titles had been procured in Missouri in its name; and that Riss had for some of these vehicles procured lessee titles and licenses in its name in Missouri. It was further stated that Riss was engaged as a common carrier of interstate and intrastate shipments; that for this purpose it had leased a large number of 'over-the-road tractor-trailer trucks' from TM&E and others.

Plaintiffs further alleged that during the year 1954 members of the Missouri State Highway Patrol, acting under directions of the defendants, arrested certain drivers of Riss while they were operating tractor-trailer trucks in interstate commerce which trucks were owned by TM&E and others, but all of which were under lease to plaintiff Riss; that drivers had been arrested and ordered to appear in court in St. Louis, Franklin, Crawford, Phelps, Greene, and Clinton Counties; that such drivers were charged with operating motor vehicles in this State without proper Missouri registration plates in violation of Chapter 301, RSMo 1949, V.A.M.S. (This chapter has been amended. See V.A.M.S., 1956 Cum.Annual Pocket Part, Chapter 301.) In paragraph 7 of the petition, it is alleged that 'Plaintiffs state that the trucks so operated by the drivers arrested and charged as set forth in paragraph 6 adove were at all times incident to such arrests and now are properly registered and fully licensed in, and had and now have displayed upon them the valid license plates of, the states in which they were and are domiciled and in which their owners did then and now do reside.' Plaintiffs further stated that the State Highway Patrol has threatened to continue the arrest of all of the Riss drivers operating trucks that do not bear Missouri registration plates.

Plaintiffs in paragraphs 10, 11, and 12 alleged that '10. Upon information and belief the plaintiffs state that the action of the defendants in the particulars set forth has been and is predicated upon a misinterpretation of RSMo 1949 Chapter 301 that by such statute RISS is the 'owner' of all commercial vehicles operated in interstate commerce in its service such that those vehicles must be registered in Missouri and bear Missouri license plates.

'11. Contrary to this view plaintiff RISS asserts that: (1) RSMo 1949 Chapter 301 clearly imports that commercial motor vehicles shall be registered by and in the name of the 'owners' thereof (2) that plaintiff RISS is not such an 'owner' with respect to the commercial motor vehicles under lease to it which are the subjects of this controversy; (3) that therefore RISS should not and cannot be required to register them; (4) and that their registry in no respect depends upon the character of RISS as a resident or non-resident motor carrier, but depends entirely upon the resident character of their respective owners.

'12. Should the contentions of plaintiff RISS asserted in the last preceding paragraph be disaffirmed by this court, and should it be adjudged an 'owner' within the purview of RSMo 1949 Sec. 301.010(18), RISS further asserts that a consideration of its corporate character, its residence in other states, and the extended nature of its business operations requires the conclusion that it is not a Missouri resident owner as to all of the commercial motor vehicles driven in its service on the highways of Missouri, but only as to those so driven which normally are domiciled in Missouri; and that with respect to all such commercial vehicles not domiciled in Missouri RISS is a nonresident owner and those vehicles bearing valid license plates of the states in which they are normally domiciled, and RISS is a resident, must be accorded by all defendants the privilege of reciprocity as defined and required by RSMo 1949 Sec. 301.270, which reads as follows: * * *.' (The section of the statute was set forth in the petition but we need not embody it in this opinion.)

In addition to the contention of plaintiffs as above set forth, they alleged that '14. Should the contentions of plaintiff RISS asserted in paragraph 11 above be affirmed by this court, then plaintiff TM&E asserts that a consideration of its corporate character and its residence in other states requires the conclusion that it is not a Missouri resident...