"The petition is based upon the maximum freight statute of 1907 (sections 3241, 3242, R
S. Mo. 1909), and contains 139 separate counts, each count covering a separate shipment between the points named. As the allegations in each count are identical, except as to the place of shipment, the freight charges paid, and the amount of the alleged overcharge, it is deemed sufficient to refer to the allegations of the first count. The petition charges that the defendants are the duly appointed receivers of the Wabash Railroad Company, and were during all of the times mentioned in the petition operating the line of the Wabash Railroad as a common carrier of live stock in carload lots, for hire, and for carrying of all other stock usually and customarily carried and transported by railroad companies of like nature; that during all of the times mentioned, the plaintiff was engaged in the business of shipping hogs, cattle, sheep and other live stock in carload lots from Montgomery City, Jonesburg, New Florence and High Hill to St. Louis, Mo. `And for his cause of action against defendants states that on the 3d day of January, 1912, plaintiff shipped two carloads of hogs from Montgomery City, Mo., to St. Louis, Mo., over said Wabash Railroad Company, owned and operated as aforesaid by the defendants, to the Independent Packing Company; that the distance between Montgomery City, Mo., and St. Louis, Mo., is over 75 miles, and under 100 miles, to wit, 85 miles; that the rate of charges prescribed by law upon the carload of hogs so shipped as aforesaid is and was $15.40 per car, amounting to $15.40; but instead thereof, the defendants charged and plaintiff paid the sum of $21.75, being in excess of the legal rates aforesaid in the sum of $6.35, for which amount plaintiff asks judgment, and he asks that the same be trebled according to the provisions of section 3248 of the Revised Statutes of this state, and for all other due and proper relief.'"
"The answer of defendants consists: (1) General denial; and (2) special plea setting up the various proceedings had in a certain injunction suit instituted by the Wabash Railroad Company in the United States Circuit Court at Kansas City, Mo., in the month of June, 1905, and filing of its supplemental bill in June, 1907, to enjoin the enforcement of the rates fixed by the Acts of the General Assembly of Missouri, approved April 15, 1905, and the act approved March 19, 1907, commonly known as the `Maximum Freight Rate Acts.' The defendants in said suit were the then members of the Railroad and Warehouse Commission of Missouri, the Attorney General, and certain individuals continually engaged in shipping over the line of the Wabash Railroad Company. Said individuals being sued as representing all of the shippers of the state as a class affected by the Maximum Freight Rate Acts. With respect to this proceeding, the answer alleges the following facts:
"(1) That upon the filing of said bill of complaint, there was entered by said court an order restraining the Railroad Commissioners from taking any steps to put in force and effect the maximum rates mentioned in the said statutes — and from requiring the Wabash Railroad Company to post or file at any time or place said maximum rates or a schedule thereof, from taking, making out, printing or delivering any schedule of rates containing said maximum rates, from instituting any investigation of any complaint that the rate was unreasonable, extortionate or unjust, because higher than the maximum rate fixed by said statute, from directing the Attorney General of the state or any prosecuting attorney in each and all of the counties in said state to prosecute or assist in prosecuting complainant, directly or indirectly, for any failure to file a schedule adopting said maximum rates or for any failure to adopt or comply with the provisions of said statute; that all the defendants, as well as all shippers, affected by the proceeding be restrained from instituting any action or taking any steps to collect any penalties for the alleged violations of the provisions of said maximum freight rate acts.
"(2) That said restraining order also provided for the filing of an injunction bond in the sum of $10,000, conditioned to pay in case of the injunction being dissolved, all damages ascertained in said cause in the said court of the United States, to have been sustained by the defendants or any of them, or by any person becoming a defendant therein; that the Wabash Railroad Company, pursuant to such order, duly filed its bond in the amount and conditioned as required by said order.
"(3) That said cause proceeded to trial and final decree, which decree was entered on or about April 17, 1909, adjudicating and decreeing as follows: (a) The maximum freight rate laws of Missouri of 1905 and 1907, and the passenger rate law of 1907, to be confiscatory, and that none of the provisions thereof should, or could, be rightfully enforced against the complainant, its officers, agents or employés; (b) the Attorney General and the Railroad Commissioners, their agents, employés and successors were enjoined from enforcing or attempting, directly or indirectly, by suit or in any other manner whatsoever, to enforce any of the provisions of or the penalties provided for in any of said rate acts; (c) the bills, to the extent only as they sought to present injunctive relief against the individual defendants sued as representatives of the class of shippers or passengers, should be and were dismissed without prejudice: Provided, however, that if, at any future time, any of them should take, or threaten or attempt to take, any action under said statutes, the court reserved the power to make such other order as justice required, and to bring into the case, any person not expressly made subject to the decrees, who might attempt or threaten to take any action or institute any proceedings against complainant under either of said statutes; (d) no appeal should supersede the injunction portions of the decree, but, pending any such appeal, complainant should be permitted to charge the rates previously permitted by law, the same as if the passenger rate act of 1907 had not been passed; and (e) that complainant, having been, by order herein of June 17, 1907, at the request of defendants, required to temporarily adopt, as a test, the rate fixed by the passenger law of that year, should be and was permitted, free from the interference of the parties to the suit and classes represented by them who were ordered not to interfere, to restore and put in force the rates so authorized by previous laws, subject to the reserved power and jurisdiction of the court from time to time to enforce, change or modify such requirement, as well as to protect complainant in being restored to the right of which said temporary order deprived it.
"(4) That the defendant state officers appealed from the said decree to the Supreme Court of the United States; that the individual defendants refused to join in said appeal, and as to them there was a severance, and no appeal was taken by them.
"(5) That on or about June 16, 1913, the Supreme Court of the United States reversed the decree which had been entered in the circuit court at Kansas City, and directed the bill of complaint of the Wabash Railroad Company to be dismissed without prejudice.
"(6) That on or about July 9, 1913, the mandate of the Supreme Court of the United States was filed with the clerk of the District Court of the United States at Kansas City; that thereafter the present Attorney General of the state, the then members of the Public Service Commission, were substituted as defendants in said cause for their predecessors in office; that said defendants then asked that the mandate of the Supreme Court be entered, and that a decree
be entered dismissing the said cause without prejudice, which was accordingly done.
"At the trial, counsel for the plaintiff admitted the facts pleaded with respect to the proceedings in the federal court. The case proceeded to trial before the court (jury being waived). At the close of all the evidence the defendants interposed their demurrer to the evidence, which was by the court overruled, and the court took the case under advisement. And thereafter, on October 20, 1915, the court rendered judgment in favor of the plaintiff and against the defendants on each count of the petition, in the aggregate sum of $890.91; and further found that defendants were liable to plaintiff as a penalty in the sum of, to wit, $2,672.73, and entered judgment accordingly.
"The material facts with respect to the shipments set forth in the various counts of the petition were covered by a stipulation between the parties, which stipulation shows the date of the shipment, the number of the car in which the shipment was made, the length of the car in feet, and the...
