Witzmann v. The Southern Railway Co.
| Decision Date | 17 December 1895 |
| Citation | 33 S.W. 181,131 Mo. 612 |
| Parties | Witzmann, Appellant, v. The Southern Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
Gerald Griffin and A. R. Taylor for appellant.
(1) The fourth section of the act of 1869 (Session Acts of 1869, p 207) is valid and not unconstitutional, and the court therefore, erred in sustaining defendant's motion for new trial. (2) The general subject of the title of the act of 1869 is "street railroad companies in the city of St. Louis." (3) All of the provisions of the act relate directly to the general subject of the title, with which they are all connected, and to which they all apply, to wit, "street railroad companies in the city of St. Louis." (4) The fourth section of the act of 1869 is congruous, cognate, and germane to the aforesaid general subject which is expressed in the title, and, therefore, valid and constitutional. 23 Am. and Eng Encyclopedia of Law, pp. 238, 239; State ex rel. v. Mead, 71 Mo. 266. (5) The act can not be declared unconstitutional, unless, in the opinion of the court, it is in such plain conflict with the constitution as to leave no discretion to the court in the premises. Dorchester County v. Meekins, 50 Md. 39; Wells v. Railroad, 110 Mo. 286. (6) Long acquiescence in the constitutionality of the act here in question, in respect of its title, is entitled to great weight in determining the sufficiency of the title. 23 Am. and Eng. Encyclopedia of Law, p. 234; Continental Imp. Co. v. Phelps, 47 Mich. 299; Cooley's Const. Lim. [6 Ed.] 81; Stuart v. Laird, 1 Cranch (U.S.), 299; Railroad v. Mills, 85 Mich. 646; Martin v. Hunter, 1 Wheat. (U.S.) 351; Cohens v. Virginia, 6 Wheat. (U.S.) 264; Bank v. Halstead, 10 Wheat. (U.S.) 51; Westinghausen v. People, 44 Mich. 265; People v. Hammond, 13 Mich. 256; Frey v. Michie, 68 Mich. 323; People v. Goodwin, 22 Mich. 500. (7) There is a presumption in favor of the constitutionality of the statute which requires if the statute is susceptible of two constructions, one constitutional and the other not, that the former shall be adopted even though the latter may be the more natural interpretation of the language used. 23 Am. and Eng. Encyclopedia of Law, p. 349; State v. Simmons Hardware Co., 109 Mo. 118; State v. Pond, 93 Mo. 606; State v. Railroad, 48 Mo. 471; State v. Able, 65 Mo. 362.
Lubke & Muench for respondent.
(1) The supreme court has jurisdiction of this case only to the extent of deciding finally the constitutional question which the ruling on the motion for a new trial brought forward. The amount in controversy is less than $ 2,500, because the verdict for $ 2,000 fixes the amount. The supreme court has not, therefore, any jurisdiction to review other errors which may have intervened at the trial to the prejudice of respondent. These can be reviewed only by the St. Louis court of appeals upon an independent appeal. Humes v. Railroad, 82 Mo. 233; Kerr v. Simmons, 82 Mo. 269; Insurance Co. v. Hill, 86 Mo. 472. (2) The act of March 3, 1869 (p. 207, Session Acts of 1869), is distinctly a special law applicable to St. Louis only. The subject could have been treated by a general law; and, therefore, the entire act is void. Const. 1865, sec. 27, art. 4; Const. 1875, sec. 53, art. 4. (3) If, however, the act in question is held sufficient as a special law, then its section 4, which is drawn in question in the case at bar, is clearly null and void, for that the subject of gates is not embraced in the title of the act. "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed." Const. 1865, sec. 32, art. 4. Substantially the same provision was inserted in the constitution of 1875. Const. November 30, 1875, sec. 28, art. 4. State ex rel. v. County Court, 102 Mo. 531; State ex rel. v. Schofield, 41 Mo. 39; State v. Persinger, 76 Mo. 346. (4) The appellant's contention that the title of the act of March 3, 1869, should be taken to be "street railroad companies in the city of St. Louis," is unsound. The general subjects treated by the title of this act are tickets, fares, taxes, and licenses as applicable to street railroads in St. Louis. No one would suspect that the body of the act also relates to gates for the safety of passengers. There is no congruity or relation between the subject of gates and the four subjects named in the title. Furthermore, the lawmakers may make the title as restrictive as they please thereby precluding many matters which might otherwise have come under a general head. Expressio unius, exclusio alterius. When the title is thus restricted the courts can not enlarge it. Here the restriction is to tickets, fares, taxes, and licenses; the courts can not add gates. Mewhater v. Price, 11 Ind. 199; Ryerson v. Utley, 16 Mich. 269; State v. Kinsella, 14 Minn. 524; Rushing v. Sebree, 12 Bush, 198; Jones v. Thompson, 12 Bush, 294; Grover v. Trustees, 45 N. J. L. 399. (5) The question of the constitutionality of the section 4 involved in this case is now presented for the first time in this court. It was not presented or considered in Muehlhausen v. Railroad, 91 Mo. 332, although it might have been then presented. The respondent in the case at bar was not a party to the Muehlhausen case, and is not estopped by what was done or omitted to be done therein.
Plaintiff recovered a verdict before a jury in the circuit court of the city of St. Louis against defendant in the sum of $ 2,000 for personal injuries alleged to have been sustained by him while a passenger on defendant's car. He alleged in his petition that he was thrown off the front platform of the car and that "said car platform was in a defective condition in that on the right hand side of said car from which the plaintiff was so thrown there was no gate or safeguard, or other appliances to prevent passengers being thrown from said car." The defenses were a general denial, and charges of contributory negligence.
Over the objection and exception of defendant the court at the instance of plaintiff instructed the jury as follows:
"If the jury find from the evidence in this case that on the twenty-ninth day of July, 1892, the defendant was a street railroad company in the city of St. Louis and was using the railway and car herein mentioned for the purpose of carrying passengers for hire; and if the jury further find from the evidence, that on said day the defendant, by its servants in charge of its cars, received the plaintiff as a passenger on defendant's car, to be carried as such passenger to Lafayette avenue and Ninth street, St. Louis, on defendant's line of railway; and if the jury further find from the evidence that defendant was carrying the plaintiff as such passenger on the front platform of said car; and if the jury find from the evidence that the plaintiff paid his fare to defendant's agent or servant in charge of said car, authorized to receive the same; and if the jury further find from the evidence, that whilst the plaintiff was being so carried as such passenger at or near the corner of Lafayette avenue and Eighth street he was, by sudden and unusual jerk or shock of said car, thrown from said car and injured; and if the jury further find from the evidence, that at the time of the plaintiff's injury there was no adjustable gate, or guard on the right-hand side of the front platform of said car, to effectually prevent passengers from getting on or off said car by the front platform, while said car was in motion; and if the jury further find from the evidence that the failure by the defendant to have such adjustable gate or guard, on said right-hand side of said front platform, directly contributed to cause the plaintiff to be so thrown from said car and injured; and if the jury further find from the evidence that the plaintiff at the time that he was thrown from said car was exercising ordinary care, then the plaintiff is entitled to recover."
Defendant's motion for a new trial assigned, among other grounds therefor, the action of the...
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