# McGrew v. Missouri Pacific Railway Co.

> Supreme Court of Missouri · November 12, 1910 · 230 Mo. 496

URL: https://www.frixlaw.com/law-library/cases/8017314

## Case

- **Full name:** JAMES C. McGREW v. MISSOURI PACIFIC RAILWAY COMPANY
- **Court:** Supreme Court of Missouri
- **Decided:** November 12, 1910
- **Citations:** 230 Mo. 496; 132 S.W. 1076; 1910 Mo. LEXIS 218
- **Precedential status:** Published
- **Opinion:** Dissent by Woodson
- **Judges:** Burgess, Fox, Gantt, Hall, Lamm, Valliant, Woodson
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by McGrew Coal Co. v. Mellon, 315 Mo. 798 (1926).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8017314

## Opinion text

DISSENTING OPINION.
WOODSON, J.
The respondent instituted this suit in the circuit court of Lafayette county to recover $7,462.43, overcharges and penalties alleged to be due *563 him from appellant for its violation of certain sections of the Eevised Statutes of 1899; regarding freight charges, for transportation of coal from Myriek, Missouri, to various other towns in this State.
There was a trial before the court, without the intervention of a jury, which resulted in a judgment for the respondent for the amount sued for, and the appellant duly prosecuted its appeal to this court.
The facts are undisputed, and are substantially as. follows:
The respondent is a coal miner and shipper at Myriek, Missouri; and appellant is a railroad corporation, duly organized and incorporated under the laws of this-State; Myriek and the other towns mentioned are located along the line of said railroad; respondent made-divers shipments of coal over said road to the said1 various towns. The suit is to recover overcharges and; penalties for the alleged violation of sections 1126 and! 1160, Eevised Statutes 1899, prohibiting railroads from; exacting a higher toll for carrying freight from one-point to another in the State than they charge for the same class and quantity of freight carried a greater distance. The appellant collected of respondent certain sums in excess per ton for said shipments than it. .did for the same class and quantity of coal shipped for longer distances, aggregating the sum sued for.
At the close of the testimony counsel for the- plaintiff prayed the court to grant this instruction on the. part of the plaintiff: “The court declares the law to be that-upon the pleadings and the evidence herein the-finding and judgment must be for the plaintiff,’’which-was by the court given. To the giving of which instruction on the part of the plaintiff, the defendant by its* counsel then and there duly excepted.
The respondent bases his cause of action upon sections 1126 and 1160, Eevised Statutes 1899, which are; as follows:
*564 “See. 1126. No railroad corporation organized or doing business in this State, under any act of incorporation or general law of this State now in force, or which may be hereafter enacted, shall directly or indirectly charge or collect for the transportation of goods, merchandise, or property on its said road for any distance, any larger or greater amount as toll or compensation, than is charged or collected for the transportation of similar quantities of the same class of goods, merchandise or property over a greater dis-' tance upon the same road, nor shall such corporation charge different rates for receiving, handling or delivering freight at different points on its road or roads connected therewith, which it has a right to use, nor shall any such railroad corporation charge or collect, for the transportation of goods, merchandise or property over any portion of its road, a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance; and ail such rules, regulations or by-laws of any railroad corporation, as fix, prescribe, or establish any greater toll or compensation than is hereinbefore prescribed, are hereby declared to be void.
“Section 1160. Any railroad corporation which shall fix, demand, take or receive, from any person or persons, any greater toll or compensation for the transportation, receipt, handling or delivery of goods or merchandise, in violation of the- provisions of «this article, shall forfeit and pay for any such offense any sum not exceeding one thousand dollars, and costs of suit, including a reasonable attorney’s fee, to be taxed by any court where the same is heard by appeal or otherwise, to be recovered by civil action by the party aggrieved, in any court having jurisdiction thereof; and any officer, agent or employee of any such railroad corporation who shall knowingly or wil *565 fully violate the provisions of this article shall be liable to the penalties prescribed in this section.”
It will throw some light upon the legal'propositions involved in this suit if we will bear in mind the history of this legislation. The two sections above quoted were originally enacted in 1872, and were sections 1 and 4 of that act [Laws of 1871, pp. 67 and 70]. Without alteration they were brought forward and incorporated in the Eevised Statutes of 1879, and are therein numbered sections 820 and 822, respectively. They were again brought forward without any change into the Eevised Statutes of 1889, and are sections 2629 and 2663, and were in like manner brought forward into the Eevised Statutes of 1899, and are now sections 1126 and 1160. Briefly stated, sections 1 and 4 of the Act of 1872 have been brought forward through all the revisions of the statutes without change down to and including the revision of 1899, and are numbered therein sections 1126 and 1160.
The appellant assails the constitutionality of those statutes for the reason that they were not enacted in accordance with the requirements of section 32, article 4, of the Constitution of 1865. That section reads as follows: “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.”
The title to the Act of 1872 is as follows: “An Act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.”
The appellant contends that the title of the act is ■directed against unjust discriminations, while the act itself prohibits all discriminations iuhether just or unjust. The appellant insists that if the validity of that act is tested by the constitutional provision before quoted, then that portion of the act which prohibits all *566 discrimination is void and inoperative, for the reason it is not mentioned in the title of the act.
The title of the Act of 1872 does not purport to prohibit all discrimination in the transportation of freight, but in express terms directs its inhibition against unjust discrimination only. The principle of eospressio unius est exclusio alterius applies here, and there is no possible escape from the conclusion that all discrimination is not embraced in the title of the Act of 1872. Having shown' that the title of the act in question does not prohibit all discrimination- by railroads in the shipment of freight, it would seem to be useless to cite authorities to sustain the proposition that such portion of the act which attempts to do so, is in the language of the Constitution, ‘void’ and inoperative; but since the majority of the court entertain different views regarding the legal questions involved in this case, I feel called upon to fortify each and every proposition that I shall present herein with an abundance of authority.
In consideration of that provision of the Constitution, this court in the case of St. Louis v. Weitzel, 130 Mo. l. c. 616, used the following language: “The evident object of the provision of the organic law relative to the title of an act was to have the title, like' a guide board, indicate the general contents of the bill, -and contain but one general subject which might be 'expressed in a few or a greater number of words. If those words only constitute one general subject, if they do not mislead as to what the bill contains; if they are inot designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”
That great constitutional lawyer, Chief Justice Cooley, in treating this same question, in his valuable work on Constitutional Limitations, at page 2Ó5 {7 Ed.), used this language: “It may therefore be as- *567 sinned as settled that the purpose of these provisions was: . . . Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” And continuing, on page 212, he says: “The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the Legislature has not seen fit to make it so. Thus, ‘An act concerning promissory notes and bills of exchange,’ provided that all promissory notes, bills of exchange, or other instruments in uniting, for the payment of money, or for the delivery of specific articles, or to convey property,- or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void as to all the instruments mentioned therein except promissory notes and hills of exchange; though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable.”
This same question came before this court again in the case of State v. Persinger, 76 Mo. 346 , and on page 347, this language is used: “We are of the opinion that the motion to quash was properly sustained for the reason that the said act was entitled, ‘An act to change the penalty for disturbances of the peace.’ This title only authorized the passage of an act chang *568 ing the penalty for such disturbances of the peace as were then by law declared punishable. The said Act of 1870, while it changed the punishment for such offenses, went further and undertook to amend the Act of 1868 by so changing it as to make it an offense for one person to disturb the peace of another person. "While the title of the act embraced but one subject, namely, a change • of the penalty for disturbing the peace, the body- of the act not only included that subject, but also another, viz., amending the law so as to make that a disturbance of the peace under the Act of 1870, which was not an offense under the Act of 1868. It therefore follows that as the Act of 18701 embraced two subjects, one of which was not expressed in its title, it is violative of the 32d section, article 4, of the Constitution of 1865, and void as to so much thereof as is not expressed in the title.”
The Act of 1872, now under consideration, is a verbatim copy of an act passed by the Legislature of Illinois in 1871. At the time of its enactment that state had a similar constitutional provision to ours, and is as follows: “The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate penalties, to the extent, if necessary for .that purpose, of their property and franchises.” [Sec. 15, art. II, Constitution of Illinois.] In obedience to that constitutional command, the Legislature of that state passed the act of which the one in question is an exact copy, and the title of that was as follows: “To prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.” The question we now have before us came before the Supreme Court of Illinois in the case of the Chicago & Alton Railroad Co. v. People ex rel., 67 Ill. 11 , and in passing upon the constitutionality of *569 that act, that court used this language: “This provision expressly directing the Legislature to pass laws to prevent unjust discrimination is a recognition of the palpable fact that there may be discriminations which are not unjust,'and by implication it restrains the power of the Legislature to a prohibition of those which are unjust. That was undoubtedly the object of the Legislature in passing the existing law. ' This is clearly shown by its title. But the act itself goes further. It forbids any discrimination whatever, under any circumstances, and whether just' or unjust, in the charges for transporting the same classes of freight over equal distances, even though moving in opposite directions, and does not permit the companies to show that the discrimination is not unjust. . . . Before this act can be enforced it should be so amended as to correspond with the requirements of the Constitution by directing its prohibitions against unjust discriminations. ’ ’
When we consider that the Supreme Court of Illinois has held the act of which ours is a copy to be unconstitutional, and the fact that said opinion is in harmony with the many decisions of this court, involving similar statutes and constitutional provisions, and fortified and reinforced as they are by Chief Justice Cooley’s great work, it seems to me that there is no logical escape from the conclusion that the Act of 1872, in so far as it prohibited all discriminations made by a railroad in the transportation of freight, was unconstitutional and void. These views are supported by the following cases from this court: State ex rel. v. Lafayette County, 41 Mo. 39 ; State v. Great Western Coffee Co., 171 Mo. 634 ; Kansas City v. Payne, 71 Mo. 159 ; State ex rel. v. Baker, 129 Mo. 482 ; Witzmann v. Railroad, 131 Mo. 612 ; Shively v. Lankford, 174 Mo. 535 ; Dart v. Bagley, 110 Mo. 42 ; In re Hauck, 70 Mich. 396 ; Callaghan v. Judge of Superior Court, 59 Mich. 610 ; 26 Am. and Eng. Ency. Law (2 Ed.), pp. 579, 590.
*570 II. In the previous paragraph of this opinion we have assumed that the learned counsel for respondent was correct in his contention that the Act of-1872, from which sections 1126 and 1160 of the Revised Statutes of 1899 are literally copied, was enacted for the purpose of preventing railroad companies from making discriminations in the shipment of freight over their roads. My associate, in his opinion, has adopted that same view of that act; hut with all due respect for his ability, learning and judicial experience, I feel constrained to entirely disagree from the conclusions herein reached; and, if I am right in my construction of that act, it is not only unconstitutional upon the grounds stated in paragraph one hereof, but for two other equally valid reasons, which I will now proceed to state.
It should be borne in mind that the Constitution of 1865 was perfectly silent upon the questions involved in this- litigation, nor was there any legislation upon those matters until the Act of 1872 was passed. All freight and passenger traffic over railroads prior to that time was governed by the common law, which allowed common carriers to make reasonable and just discriminations in the transportation of freight and passengers. [4 Elliott on Railroads, secs. 1467, 1565 and 1676; 17 Am. and Eng. Ency Law (2 Ed.), p. 135; 2 Hutchinson on Carriers (3 Ed.), secs. 521, 588 and 589; Railroad Commission v. Weld, 96 Tex. 394 .]
Now the body of the Act of 1872 did not say a word about just or unjust discrimination in the transportation of freight; nor is there any language contained in the act which prohibits either just or unjust discrimination, but left the shipper and carrier in that regard just where the common law placed them, with the exception as to short or long hauls. Section 1 of the Act of 1872 only prohibited railroad companies from charging more for a short haul than for a’ long one, along all portions of their lines, and has no refer *571 ence directly or remotely to the question of discrimination. Section 2 defined the meaning of the words “railroad corporations,” as used in the act. Section 3 was to prevent the increase of tariff rates above what they were the year previous. Section 4 prescribes the penalty for the violation of the provisions of the act; and section 5 is an emergency clause.
The first constitutional provision adopted by this State upon this question is section 12 of article 12 of the Constitution of 1875, which reads as follows: “Sec. 12. It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; but excursion and commutation tickets may be issued at special rates.”
Clearly, this provision is fashioned after the Act of 1872, and was laying one of the two corner stones upon which the Legislature was commanded to base a system of laws, which would “correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State. ’ ’ But taken by itself, this section of the Constitution is not so comprehensive in its provisions, commands and injunctives as were those of the Act of 1872. Neither that section nor that act prohibits discriminations in the transportation of freight and passengers, but were for the purpose of preventing railroads from charging more for a short haul than they charged for a long haul, which applied to everyone without discrimination, and if it was not for section 14 of the same article, I suppose it would hot be seriously contended that a railroad company would not have a perfect legal right, barring the common law rule, to discriminate in fav.or of one person against another, in furnishing cars and in receiving and de *572 livering freight; nor from charging one person the same price for carrying freight five hundred miles that it charged another for carrying the same amount and quality a distance of fifty miles, or from charging one person the same price for a short and a long haul, and charging another a higher or lower price for carrying the same quantity and quality of freight the same distance. If there are any such inhibitions couched in either the Act of 1872 or in said section 12 of the Constitution I have been unable to find them. But in order to prevent just such discrimination? as above pointed out, section 14 of the same article of the Constitution was adopted, which is as follows:
“Sec. 14. Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers. The General'Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties. ’ ’
When we consider sections 12 and 14 together, which we must do in order to get at the intention of the framers of the Constitution, it is clearly seen that it was their intention to have the Legislature pass such laws as would not only prevent railroad companies from discriminating in furnishing cars, receiving and delivering freight, but also to prevent all unjust and unreasonable discriminations among shippers in the short1 and long hauls; but neither of said sections, nor both construed together, were intended to prevent just and reasonable discriminations within the limitatious of those sections and laws thereafter to be enacted in pursuance thereof. If it had been the *573 intention of the framers of the Constitution to prevent all discrimination, reasonable and just, as well as unreasonable and unjust, then why did they provide in both of said sections that the Legislature should enact suitable laws to carry into effect these provisions? If the intentions had been to prohibit all discrimination, then why did they not so state in so many words in the Constitution, and at the same time declare such provisions to be self-enforcing? By so doing all the legislation we have upon those subjects and the complications and litigation that have grown out of the same could and would have been avoided. But the fact that the Constitution did not so provide, taken in connection with its command to the Legislature to enact suitable laws to carry into effect those provisions and to prevent unreasonable charges and unjust discrimination and extortion, indicate to my mind that it was never, the intention to prevent just and reasonable charges and discriminations within the constitutional and statutory limitations then fixed, or thereafter to be established. And it should also be borne in mind that the constitutional provisions ■ under consideration were adopted, not because the Legislature n is not sound, and will now proceed to make a few-observations regarding the opinion delivered by Division No. 2 in the case of McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533 .
*608 The first criticism I have to offer to that opinion is directed at the following paragraph on page 544: “Another and cogent reason why section 1134 should not be held to have repealed section 1126 is, that the latter was passed in obedience to the mandate of the Constitution itself, in section 12 of article 12 of that instrument. ’ ’
This paragraph of the opinion contains an erroneous statement of fact regarding the enactment of section 1126, Revised Statutes ■ 1899. The opinion states that it was “passed in obedience to the mandate of the Constitution itself.” Now, the Constitution was not adopted until the year A. D. 1875, and an examination of the Laws of 1872, pp. 69 and 70, will show that the act of which section 1126 is an exact copy, was passed by the Legislature of 1872, which was three years prior to the adoption of the Constitution. That being true, it cannot be contended that said section was enacted in obedience to the command of the Constitution.
I, therefore, take it that if the fact upon which that portion of the opinion is based is erroneous, then the opinion in that particular must necessarily be erroneous also. And again, the Act .of 1872, from which section 1126 is a copy, was unconstitutional and void at the time of its passage, and could in no manner form a sound basis upon which to rest that decision. Nor can We escape that conclusion by saying that said act was re-enacted in 1879, for the manifest reason that it was repealed by the Act of 1887.
The second criticism I wish to suggest against that opinion is this: On page 543 the following language is used: “The first, or section 1126, Revised Statutes 1899, had and has for its object the regulation of freight charges in any direction, the same or opposite directions, on the same road and over any portion of the same road, regardless of ‘circumstances or conditions, ’ and is in the language of the Constitution itself, article 12, section 12, supra; whereas section 1134, Re- ■ *609 vised Statutes 1899, by its terms is limited to shipments over that part of the railroad ‘in the same direction, under similar circumstances and conditions,’ and both can readily stand together.” Now, that is clearly a misconception of the meaning of those two sections of the statutes. The word “any” as used in section 1126 means all, and when that section declares it unlawful for a railroad company to charge a greater compensation for transportation of freight for a shorter than for a longer distance in “any” direction on “any” part of its road, it means that it is unlawful for the company to make such charge for such services-in all directions over its road. The word “any” as used in that section has the same meaning so far as directions are concerned as it has in a law or ordinance which declares it unlawful for a person to walk over a public flower garden in any direction, that is, walking in all directions over the garden is prohibited, and declared unlawful. That being unquestionably true, and if section 1126 is still in force, as stated in that opinion, then a railroad company under section 1134 cannot make such charges for hauling like freight under dissimilar conditions, and in opposite directions, as is expressly authorized by that section, and the reason therefor would be, as heretofore stated, that section 1126 prohibits such greater charge for shipments in all directions; so it must logically follow that if section 1126 is still in force, then 1134 is not. These two sections are irreconcilably in conflict with and repugnant to each other. Yes, so much so, that if section 1126 is still in force, then the human mind can- neither conceive nor state a case under section 1134 which would not violate section 1126. If such a thing can be done, I would like very much to see that case stated. Take the very facts stated in that opinion, and if section 1126 is in force, then defendant could not have interposed any defense whatever to it under section 1134, *610 regardless of the directions in which the shipments were made. In order to sustain that case, the court there said: “This court will take judicial cognizance that a shipment from Myriek to Kansas City was not in the same direction that the shipment from Myriek to Boonville was, but, in fact, was in an opposite direction.” Now, if that is true, and the fact that the shipments mentioned were in opposite directions fastened the liability upon the defendant in that case, then by parity of reasoning this court should in this case take judicial notice of. the fact that shipments in this Case from Myriek to Kansas City and those te ITarrisonville are in the same direction so far as the line of railroad is concerned, and for that reason discharge the defendant in this case. But no, that cannot be done either, according to the opinion of Judge Valliant herein.
The effect of the two opinions is to find for Mr. McGfrew, whether the shipments are made in the same or opposite directions. In either event the company must lose, yet, according to section 1134, it is entitled to win under the conditions stated therein, but under those two opinions those conditions can never transpire. .It is, therefore, clearly seen that according to these two opinions section 1134, which is the later enactment, is repealed by section 1126, which is the prior enactment. I submit that in the very nature of things this cannot be done, and it is in conflict with the universal rule of construction, that where two statutes of different dates were enacted and are in conflict with each other, the one which was first enacted will be repealed by implication by the subsequent enactment and not vice versa.
Not only this, but by reading section 12 of article 12 of the Constitution, and section 1126, it will be seen that the opinion mentioned is in error when it says that section of the statute was enacted in pursuance to the very mandate of the. Constitution, and is in the *611 language thereof. The language of the Constitution is as follows: “It shall not be lawful in this State for any railroad company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance.” From this quotation it will be seen that said section 1126 is not only not in the language of the Constitution, .but is much broader in its provisions than those of the Constitution. If said section 12 of the Constitution was as broad in its provisions as are those of section 1126, and as stated in that opinion “has for its object the regulation of freight charges in any direction, the same or opposite directions, on the same road and over any portion of the same road, regardless of ‘circumstances or conditions,’ ” then unquestionably section 1134 would be-clearly unconstitutional and void, because it permits a greater charge for a shorter haul than for a longer one,, where the conditions are dissimilar and the shipments-are in different directions.
I have thus attempted to show that section 1126 was not enacted in response to the mandate of the Constitution, as stated in that opinion, and that it is-much broader in its terms than are the provisions of said section 12 of the Constitution, and, therefore, it did not and could not prevent the Legislature in 1887 from repealing that section and enacting in lieu thereof section 1134.
This entire,trouble and litigation has grown out of the erroneous assumption that section 1126 was enacted in response to the mandate of the Constitution, and that it is in the language thereof, and in holding all other acts and statutes upon the subject to be in subordination to that section; whereas, in fact, it was enacted three years prior to the adoption of the Constitution, and was clearly unconstitutional at the time-of its passage, as before shown; and notwithstanding it was re-enacted in 1879, it was -clearly and unques *612 tionably repealed by the Act of 1887, now section 1134, Revised Statutes 1899, which latter act expressly authorized the company to do just what the petition in the case charges it with doing, and is not, therefore, lawful.
Y. Counsel for respondent finally contends that appellant cannot raise any constitutional questions in this court, because they were not presented to the court below. As a general proposition that is true, but where the sole cause of action arises out of the violation of a statute which is unconstitutional, and there can be no recovery except by giving that statute force and effect, then its constitutionality can be raised at ■any stage of the proceedings, and in any court where the cause is pending, at any time.
The reason for that rule is that if the statute is unconstitutional and void, and that is the only law upon which the case can be predicated, then there is no law creating a cause of action, and consequently there can be no recovery. [State ex rel. v. Smith, 177 Mo. 69 , l. c. 92; State ex rel. v. Smith, 152 Mo. 444 ; Ex parte Siebold, 100 U. S. 371 ; State ex rel. v. Smith, 141 Mo. 1 ; Kaukauna Co. v. Green Bay Co., 142 U. S. 254 ; Kirkwood v. Meramec Highlands Co., 160 Mo. l. c. 118.]
I am, therefore, of the opinion that the judgment should be reversed and judgment entered here for appellant.
Fox, G. J., and Burgess, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8017314. Public record. Not legal advice.