Wells v. Missouri Pac. Ry. Co.

• Citation: 19 S.W. 530,110 Mo. 286
• Parties: WELLS v. MISSOURI PAC. RY. CO.
• Decision Date: 23 May 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 530

110 Mo. 286

WELLS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

PASSAGE OF STATUTES — EXTRA SESSION — PROCLAMATION BY GOVERNOR — CONSTITUTIONAL LAW — JUDICIAL NOTICE.

1. The constitution of Missouri declares that "the general assembly shall have no power, when convened in extra session by the governor, to act upon subjects other than those specially designated in the proclamation by which the session is called," etc. Const. 1875, art. 4, § 55. Held, that the "Act to provide for the prevention of accidents to railroad employes and others, by requiring that switches, frogs, and guard rails be properly blocked," (Extra Sess. Acts 1887, p. 14,) is unconstitutional, the subject thereof not having been so designated by the governor.

2. The constitutional provision above quoted, held mandatory.

3. Subsequent approval of the act by the governor is not a valid substitute for his initiative, required by the constitution.

4. Courts take judicial notice of official proclamations and messages of the executive.

5. No statute will be pronounced unconstitutional unless clearly so, and every reasonable intendment will be made to sustain it.

6. The meaning of section 14, art. 12, Const. 1875, discussed.

7. Where the constitution declares certain forms indispensable in the passage of laws, it is the duty of the courts to enforce it.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by Wells against the Missouri Pacific Railway Company for personal injuries. From a judgment on a verdict for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by BARCLAY, J.:

Plaintiff sued for damages for personal injuries, and recovered judgment for $10,000, from which defendant appealed, after the usual preliminaries. The governor's special message of May 11, 1887, mentioned in the opinion of the court, was as follows: "Jefferson City, May 11, 1887. Gentlemen of the General Assembly: A little less than twelve years ago the people of this state, by a popular vote, adopted a written constitution in which are stated, in strong and clear language, those principles which should guide and control the general assembly in its enactment of laws affecting railroads as public highways, and railroad companies as common carriers. The provisions of that instrument not only determine some things that the general assembly should not do in this regard, but they as clearly, and with more emphasis, declare some things it should do. There is no reason to believe that the people have ever been disposed to revoke the demands therein expressed; on the contrary, it is well known that they today are more unanimous and more earnest in such demands than they were twelve years ago. No good could come from a discussion by me of why such demands have not heretofore been met by the representatives of the people. It is sufficient for us to know that the condition of affairs which led to such demands still exist; that the people have the right to make such demands; and that, as a matter of fact, they do make them. What these demands are, which I think most urgently call for action by you, I have recently stated to you, gentlemen, in my biennial message. That the problems involved in the inquiry, `How best to meet these demands,' are difficult of solution, is good reason why the very best powers you have should be engaged in the work; but it is no reason why the solution should be longer delayed. That the properties involved or affected are of very great magnitude and of large value to our people is good reason why the greatest caution should be observed that no injury is done to them; but it is also a better reason why such laws should be enacted as will make these properties of the very greatest possible value to the people, which they are not now, and will not become under the present laws. Just six months ago the people, your constituents, said by their votes that they believed you were willing and able to meet their demands. By calling you thus together to consider these questions, I have in the most conclusive manner expressed my own opinion of the importance of the questions, and my faith in your ability to enact the proper legislation. The opportunity for enacting such legislation is thus placed before you; the duty and the labor is yours, and yours alone.

                                    "JOHN S. MARMADUKE."
                

The biennial message of the governor, January 7, 1887, referred to in the foregoing special message, closed with this passage, under the heading "Railroads," viz.: "I call your particular attention to the following sections of article 12 of our state constitution: Section 7, prohibiting corporations from engaging in `other business than that expressly authorized in its charter;' also section 8, fixing the conditions under which corporations may issue stock or bonds, and prohibiting all fictitious increase of stock; also, and very especially, section 14, which declares railways to be public high ways, and the companies operating them common carriers; it also directs the general assembly to pass laws to correct abuses, and prevent unjust discrimination and extortion, and to fix maximum rates of charges, and `enforce all such laws by adequate penalties;' also section 17, which prohibits the consolidation of parallel or competing lines under one management; also section 22, which prohibits the president and other officers of any railroad company being interested, directly or indirectly, in furnishing material or supplies to such company; also section 24, which prohibits railroad and other transportation companies from granting free passes or tickets `to members of the general assembly or members of the board of equalization, or any state or county or municipal officer.' I also deem worthy of your careful consideration what the railroad commissioners say on page 9 of their eleventh annual report about a remedy for the defect of our present law of rates. It is plainly and indisputably proper and right for the representatives of the people to provide the legislative enactments necessary or expedient to enforce and execute those laws and principles which the people themselves have enacted and declared in their constitution.

                                           "JOHN S. MARMADUKE."
                

The other necessary facts appear in the opinion of the court.

M. F. Watts and F. W. Lehmann, for appellant. A. R. Taylor and Jas. P. Maginn, for respondent.

BARCLAY, J., (after stating the facts.)

Plaintiff's action is predicated on a charge of negligence, in that defendant omitted to keep its track in reasonably safe condition. The specific allegation is that defendant failed to "block" a certain "frog," forming part of the track, in consequence of which plaintiff's foot was caught therein, and became fastened, and his injury ensued, while he was uncoupling cars in the discharge of duty as switchman for defendant, August 2, 1888, at St. Louis. At the trial plaintiff relied upon the terms of "An act to provide for the prevention of accidents to railroad employes and others, by requiring that switches, frogs, and guard rails be properly blocked," approved June 16, 1887, (Extra Sess. Acts 1887, p. 14.) The instructions and other proceedings in the circuit court disclose that the case was conducted throughout on the theory that the "act" in question imposed upon defendant the duties stated in it. Exceptions were saved to these instructions and to other rulings applying that theory. The defendant's position is that that legislation is invalid, because in violation of the constitution of Missouri.

1. The "act" was passed in 1887, at the special or extra session of the legislature convened by the governor under the following provision of the organic law, viz.: "On extraordinary occasions he may convene the general assembly by proclamation, wherein he shall state specifically each matter concerning which the action of that body is deemed necessary." Const. 1875, art. 5, § 9. It is further declared, by section 55 of the fourth article of the same instrument, that "the general assembly shall have no power, when convened in...