Opinion
March Session, April 22, 1946. Rehearing Denied. May 13, 1946.
1. — Statutes. Repeals of statute by implication are not favored.
2. — Railroads. The statute forbidding railroads from carrying baggage cars at the rear of passenger trains has been impliedly repealed by the Public Service Commission Law, particularly the sections respecting the jurisdiction of the Commission to order stopped unsafe practices of railroads in the transportation of persons or property, and hence the action of the Commission in ordering a railroad to stop such practice because the Commission believed the prior statute still in effect, without any finding as to whether the practice was safe or not, was unauthorized.
Appeal from Circuit Court of Maries County. — Hon. C.H. Jackson, Judge.
AFFIRMED.
John P. Randolph, General Counsel, and Wilbur F. Hall, Assistant Counsel, for appellant, Missouri Public Service Commission.
Delmar Dail and Frank Mattes for Brotherhood of Railroad Trainmen.
The powers and duties of the Public Service Commission imposed by statute in relation to railroads as enacted in the Act of 1913, creating the Public Service Commission, has been retained by the Legislature and as are now expressed by Sections 5619 and 5641, R.S. Mo. 1939: Section 5619 reads as follows: "1. The Commission shall have general supervision of all common carriers, railroad corporations . . . and shall have power to and shall examine the same and keep informed as to their general condition . . . and the manner in which their lines and property, owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all the provisions of law, orders and decisions of the Commission and charter requirements." Section 5641 provides: "Whenever the Commission shall be of the opinion that a common carrier, railroad corporation, . . . is failing or omitting or about to fail or omit to do anything required of it by law or by order of the Commission or is doing anything or about to do anything or permit anything to be done, contrary to or in violation of law or of any order or decision of the Commission, it shall direct the General Counsel of the Commission to commence an action or proceeding in any Circuit Court in the State of Missouri in the name of the Commission for the purpose of having such violation or threatened violation stopped and prevented either by mandamus or injunction." The section of the statute involved in this proceeding being Section 5212, R.S. Mo. 1939, provides: "In forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear of passenger cars; and if they, or any of them, shall be so placed, the officer or agent who so directed or knowingly suffered such an arrangement, and the conductor of the train, shall be deemed guilty of a misdemeanor, and be punished accordingly." There was no repeal of Section 5212, R.S. Mo. 1939, by implication or otherwise by the enactment of the Public Service Commission Law, the repealing clause of that law being Section 5719, R.S. Mo. 1939, which reads as follows: "That sections 9568, 9569 and 9570, Article 8, Chapter 84, Revised Statutes, 1909, and all other laws and parts of laws in conflict with this law are hereby repealed. The provisions of this law are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws." "The Public Service Commission law was intended to supplement not to repeal existing law, except where in direct conflict with it." Clark v. Mississippi River B.T. Ry., 23 S.W.2d 174, l.c. 177. "Repeals by implication are not favored by law and the general and almost universal rule is that a later general act will not be construed to repeal a prior general act . . . unless the two are so inconsistent that they cannot stand together or be consistently reconciled. If the two can be read together without contradiction or repugnancy or absurdity or unreasonableness, they should be read together and effect given to both." Yall v. Gillham, 187 Mo. l.c. 405; State ex rel. v. Spencer, 164 Mo. l.c. 53. The rule of construction of an act, where the whole subject-matter of the previous law is covered by a later act, has been stated by our Supreme Court as follows: "A statute is impliedly repealed by a subsequent one revising the whole subject-matter of the first and intending to substitute the latter for the former." State ex rel. v. Patterson, 207 Mo. l.c. 145. The Public Service Commission Act did not revise the whole subject-matter of the old railroad law and the intention to substitute the Public Service Commission Act for the old railroad law is clearly negatived by the Public Service Commission Act itself, which specifically repeals certain sections "and all other acts and parts of acts in conflict with this act," and then further specifically provides: "The provisions of this act are not intended to repeal any law now in force unless in direct conflict therewith, but is intended to be supplemental to such laws." Section 5917, R.S. Mo. 1939. Defendant (respondent) sets out in its answer and cites particularly Section 5623 (R.S. Mo. 1939) of our Public Service Commission Law, as supporting its contention that Section 5212 has been repealed by implication or was superseded or rendered invalid. Section 5624 gives the Public Service Commission jurisdiction over complaints relating to the "regulation, practices, equipment, appliances and services of common carriers and railroad corporations in respect to the transportation of persons or property within the state." Thomas J. Cole, Ragland, Otto, Potter Embry, James A. Potter and Leon P. Embry for respondents.
The alleged violation of Section 5212, Revised Statutes of Missouri for 1939, is the basis of this action. If said Section 5212 was repealed by the Public Service Commission Act, it could not be violated and the trial court was right in denying the injunction sought by the plaintiff (appellant). Said Section 5212 was repealed by the Public Service Commission Act, Chapter 35, Revised Statutes of Missouri for 1939. Said Section 5212 was enacted in 1853. Except for changing the "z" in "merchandize" to an "s", it has remained unchanged. Laws of Mo., 1852-3, p. 142, Sec. 45; Sec. 5212, R.S. Mo. 1939. The Public Service Commission law was not enacted until 1913. Laws of Mo. 1913, p. 557. The Public Service Commission law is, therefore, the later of the two laws. The fact that the old 1853 law, which now appears as said Section 5212, has been carried forward through the various revisions of the statutes since 1853 does not detract from the force of the Public Service Commission law as a repealer thereof. Such carrying forward of the 1853 law operates only as a continuance of its original existence and does not operate to make it an original act. Hence, with reference to other statutes, the 1853 law (now said Section 5212) is to be construed as of the date of its original enactment and not as of the date of its carrying forward into any subsequent revision of the statutes. Sec. 683, R.S. Mo. 1939; Dillbeck v. Johnson, 232 Mo. App. 743, 747, 122 S.W.2d 412, 415; Dillbeck v. Johnson, 344 Mo. 845, 129 S.W.2d 885. The Public Service Commission law repeals all laws in direct conflict therewith. Sec. 5719, R.S. Mo. 1939. The Public Service Commission refused to pass on the question of the safety or unsafety of the practice complained of and simply held that said Section 5212 is in force and that the practice complained of, viz., carrying the car mentioned in evidence at the rear of passenger cars, is a violation of said Section 5212. The theory of the complaint filed before the Commission was that the question involved is one of safety; such was the theory of appellant's counsel in the trial of this case; such was the theory of all of the evidence offered by appellant, and of much of the evidence offered by the respondents. Appellant even admits on page 9 of its Statement, Brief and Argument, in this court, that what is now Section 5212 was enacted as a safety measure. If said Section 5212 is still in force, the Commission could not require a "baggage" car to be carried at the rear of a passenger car, even if convinced that safety so demanded, although the Public Service Commission law contains an unequivocal grant to the Public Service Commission of jurisdiction over matters of safety and over the practices of carriers. This demonstrates that said Section 5212 is necessarily in direct conflict with the Public Service Commission law and was, therefore, repealed by the latter. Secs. 5623, 5626, R.S. Mo. 1939. Said Section 5212, if in force, would constitute a direct interference with the power vested in the Public Service Commission under said Section 5623 to regulate, among other things, the practices of carriers with reference to the safety or unsafety of such practices. The two are so irreconcilable that it must be said that said Section 5212 was repealed by the Public Service Commission law. State ex rel. v. Public Service Commission, 275 Mo. 60. Even if Section 5212, Revised Statutes of Missouri for 1939, was not repealed by the Public Service Commission law, the car in question is not a baggage car within the meaning of said Section 5212. The petition in this cause alleges a violation of said Section 5212. While the car in question is rather indiscriminately referred to in the record as a "baggage" car, the fact is, and the record so discloses, that it is not a "baggage" car but a storage, mail and express car. It is undisputed in the record that this car is predominately a mail car. Therefore, it cannot properly be called a "baggage" car, and, so far as is pertinent to this case Section 5212 deals only with "baggage" cars. Sec. 5212, R.S. Mo. 1939. But, even if the car in question were concededly a "baggage" car, it would not come within the meaning of "baggage" car as used in Section 5212. What is now Section 5212 was enacted in 1853. Laws of Mo. 1852-3, p. 142, Sec. 45. As a matter of common knowledge, as well as a matter of fact, baggage cars in 1853 were of frail wooden construction and, in the event of a collision, would have involved the hazards of telescoping. The car in question is of modern all-steel construction and, so far from involving any such hazards, is a safety factor when carried at the rear end of the train. At any rate, it is common knowledge that no such modern all-steel cars were in existence, or even in contemplation, in 1853. The courts will take judicial knowledge of this because the courts are presumed to know what everyone else knows. Green County v. Lydy, 263 Mo. 77, 100; State ex rel. v. Dallmeyer, 295 Mo. 638, 644, 245 S.W. 1066, 1068. Surely the legislators in 1853 could have had no such car in mind as the one in question when they enacted what is now Section 5212. It is a cardinal principle of statutory construction that the conditions under which a statute is enacted, and the purposes intended, should be kept in view in determining its meaning and scope; that words ("baggage car" for instance) may be restricted or extended to effectuate the purpose of the enactment; and that a statute valid when enacted may become invalid by changed conditions. Nashville, C. St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 488; Realty Co. v. K.C.T. Ry. Co., 328 Mo. 1118, 1133, 42 S.W.2d 817, 821; Brewing Co. v. City of St. Louis, 231 Mo. App. 793, 802, 804, 95 S.W.2d 335, 338, 339; Pate v. Ross, 229 Mo. App. 836, 839, 84 S.W.2d 961, 963; State ex rel. v. P.S.C., 232 Mo. App. 755, 761, 111 S.W.2d 982, 986; Cummins v. K.C.P.S. Co., 334 Mo. 672, 684, 66 S.W.2d 921, 925. The provisions of Title 39, U.S.C.A., sec. 537, recognize the practical change wrought by the development of modern railroad equipment by omitting, as temporary and obsolete, the provisions of the original text of that section authorizing the use until July 1, 1917, of cars of other than steel or steel underframe construction, and regulating the use of wooden cars in postal service. Footnote to Sec. 537, Title 39, U.S.C.A. The same recognition is given the development of modern steel railroad equipment by the proposition that Congress, by providing in Act of March 4, 1911, that no pay should be allowed for the use of "wooden full railway post office cars run in any train between adjoining steel cars," did not intend that this provision should apply to cars with steel under-frames (the car in question not only has a steel underframe but is of all-steel construction). Mo. Pac. Railway Co. v. U.S. (1917), 53 Ct. Cl. 12. The enforcement of Section 5212, Revised Statutes of Missouri, 1939, should be denied for the further reason that its enforcement would be arbitrary and unreasonable. The train on which the car in question is carried is a fast, all steel, modern diesel powered, streamlined train, running from St. Louis, Missouri, to Denver, Colorado. To prohibit the carrying of the car in question at the rear end of this train would result in an otherwise wholly unnecessary delay of from fifteen to twenty minutes at Kansas City. If any reason ever existed for the enactment of the Act of 1853 (now Section 5212), that reason has long since ceased to exist and the enforcement of said Section 5212 as to the car in question would be an arbitrary and unreasonable, and therefore invalid, exercise of the police power, and consequently would constitute an undue burden on interstate commerce. Nashville, C. St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 488; Southern Pacific v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 1525; 50 Am. Juris., secs. 305, 369, 383.
On August 28, 1943, the Brotherhood of Railroad Trainmen filed with the Public Service Commission of Missouri, its application for an order of the Commission, requiring the railroad to discontinue the practice of operating one of its passenger trains with one of its baggage cars in the rear thereof. Thereafter, the railroad filed its answer with the Public Service Commission, admitting that a car is carried on the rear of train No. 11, from St. Louis to Kansas City, with an opening in each end thereof, and loaded with baggage and mail. It is alleged that the car was so carried to save time at Kansas City and was safe, as so used. And further alleged that Section 5212, R.S. Mo. 1939, was repealed by implication by the Public Service Commission Act, particularly by Sections 5623 and 5626, R.S. Mo. 1939.
On hearing the case, the Commission made the following order:
"That the General Counsel of this Commission and his successors in office, is hereby ordered and directed to commence and to prosecute an action or proceeding in any Circuit Court of the State of Missouri in the name of this Commission for the purpose of having such violations, or any continued or threatened violations of Section 5212, Rev. Statutes of Mo. 1939, stopped and prevented either by mandamus or injunction."
Section 5212, R.S. Mo. 1939, referred to in said order, is as follows:
"In forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear of passenger cars; and if they, or any of them, shall be so placed, the officer or agent who so directed or knowingly suffered such an arrangement, and the conductor of the train, shall be deemed guilty of a misdemeanor, and be punished accordingly."
The reasons actuating the Commission in making such order are succinctly stated in the opinion of said Commission, as follows:
"It is the opinion of this Commission that the question of whether or not the carrying of this baggage car on the rear end of this passenger train is safe or unsafe is not material herein, and that we must, in the performance of our duty herein, accept the provisions of said Section 5212 as written. For that reason we have not set forth the evidence on the question of safety or discussed the matter. Even if we believed the operation to be a safe one, as to which we express no opinion, still it is our duty to enforce the statute. [Secs. 5619 and 5641, supra.]"
After the making of such order, the counsel for the Commission on June 16, 1944, filed with the Circuit Court of Cole County, its petition for statutory injunction, praying the court to enjoin the railroad "from violating Section 5212, Revised Statutes 1939, by carrying a baggage car on the rear of defendants' train No. 11 or on the rear of any other of defendants' passenger trains and that the Court enter such further orders and decrees as may be just and proper, the premise considered, and assess the costs of this action against the defendants."
On July 11, 1944, defendants, now respondents, filed their answer in the Circuit Court of Cole County. On September 1, 1944, the venue of said case was changed by agreement to Maries County. On September 25, 1944, said cause came on for hearing before Judge JACKSON, and, after hearing all of the evidence and examining the exhibits offered, said judge rendered judgment on May 15, 1945, in favor of defendants and denied the injunction sought by plaintiff, from which order and judgment plaintiff duly appealed to this Court, and the case is thus before us.
It is apparent, from the opinion of the Commission, that it issued its order solely because the Commission believed that Section 5212, Revised Statutes Missouri 1939, was still in force and binding upon the Commission, without regard to the then safety of such practice.
We need not determine whether or not said car was exclusively a baggage car, or whether or not the practice of placing said car at the rear of the passenger train was safe or unsafe. If said statute was not in force and effect at the time the Commission made its order, such order, as made, was not justified. It is admitted that the Commission had never made any prior order in which cars should be carried. If said Section 5212, Revised Statutes Missouri 1939, had been repealed by implication, there was no rule or order in effect. The Commission took the position that it had no power in the premises, except to enforce the existing statute, and that the carrying of a baggage car in the rear of passenger cars violated Section 5212, Revised Statutes Missouri 1939, and that such section had not been repealed, even by implication.
On the other hand, the railroad contended that said Section 5212 had been repealed by implication by the enactment of the Public Service Commission Law, and particularly by Sections 5623 and 5626, Revised Statutes Missouri 1939. Our task then, is to determine whether the enactment of those later sections of the statute had the effect of repealing Section 5212, Revised Statutes Missouri 1939, by implication.
Section 5623, Revised Statutes 1939, is very long. The portion in which we are especially interested in this case is paragraph 2 thereof, and this provides that:
"Whenever the commission shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the regulations, practices, equipment, appliances or service of any such common carrier, railroad corporation or street railroad corporation in respect to transportation of persons or property within this State are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force, to be observed and to be used in such transportation of persons and property and so fix and prescribe the same by order to be served upon every common carrier, railroad corporation and street railroad corporation to be bound thereby;" See also Section 5626, Revised Statutes 1939, which is to the same effect, and not quoted.
There is no question in our minds that, had the Commission previously made an order specifying just how passenger trains should be made up, if reasonable, such order would have superseded Section 5212. This the Commission had not done. It simply held that, "It is the opinion of this Commission that the question of whether or not the carrying of this baggage car on the rear end of this passenger train is safe or unsafe is not material herein, and that we must, in the performance of our duty herein, accept the provisions of said Section 5212 as written." In other words, the Commission held that, since the Legislature many years before, and with the train equipment then in use, had said that a baggage car should not be carried on the rear end of a passenger train, it had no choice in the matter and could not exercise its independent judgment in the matter, in the light of the then conditions in the World. It is true that repeals by implication are not favored. [State v. Malone, 192 S.W.2d 68, and cases therein cited.] However, our Supreme Court en banc, has held that a quite similar statute (Sec. 3157, R.S. Mo. 1909) was repealed by implication by the enactment of the Public Service Commission Law. [The State ex rel. Mo. Pacific Railway Co., and Benjamin F. Bush, Receiver, Appellant, v. Public Service Commission, 275 Mo. 60, 204 S.W. 395.] Judge GRAVES, therein said:
"From this it is clear that the Commission was of the opinion that the terms of said Section 3157, Revised Statutes 1909, fixed the measure of public necessity, and the evidence having shown the quantity of grain therein named, the Commission was bound to find a public necessity, although the other evidence might disclose a different situation. The other evidence did strongly tend to show a different situation. It is clear that the Commission based its judgment as to public convenience on this statute. In so doing the railway urges error, in that the statute is of no force since the passage of the Public Service Commission Act. Such is the case in a nut shell."
In the case before us, the Commission did not hold that safety required that no baggage car should be carried on the rear end of a passenger train. In the case cited, the Commission held that Section 3157, Revised Statutes 1909, measured the public convenience and necessity without regard to changed conditions. Judge GRAVES said:
"To my mind there is no question as to the power of the Public Service Commission to make an order for track scales. This power is contained in the broad terms of Section 49 of the Public Service Commission Act. [Laws 1913, p. 588.] But this act requires the independent judgment of the Public Service Commission upon the facts before it, in the individual case, and without the influence or effect of any previous statute. In fact the whole act is expressive of a new theory of reaching results in matters pertaining to things to be done by public service corporations. It contemplates that orders may be made for things of public necessity or of public convenience in the transportation of either persons or property, but the act further contemplates that the question of public necessity or public convenience should be determined by the evidence in each particular case, and not by a previous statute which by its terms conflict with the Public Service Act." [Laws of 1913, p. 588, is now Section 5626, R.S. Mo. 939, cited by respondents.]
If the question of public convenience and necessity, for many years afterward, was not determined by the Legislature in enacting Section 3157, Revised Statutes 1909, and that section was impliedly repealed by the enactment of the Public Service Commission Law, we are unable to see on what theory the Public Service Commission could hold that Section 5212, Revised Statutes Missouri 1939, was not repealed and was in force and effect at the time its order was made, regardless of the public safety involved in carrying a baggage car at the rear end of a passenger train, at that time and under conditions then prevailing.
The case referred to seems to be squarely in point and decisive of this case. The judgment of the Circuit Court was for the right parties litigant, and should be affirmed. It is so ordered.
Fulbright, P.J., and Vandeventer, J., concur.