Rider v. Julian

Full title: CHARLINE RIDER, Appellant, v. VANCE JULIAN, Chairman, Missouri State Board…

Court: Supreme Court of Missouri, Court en Banc

Date published: Oct 10, 1955

365 Mo. 313 (Mo. 1955)

282 S.W.2d 484

Opinion

No. 43330.

September 12, 1955. Rehearing Denied, October 10, 1955.

SUMMARY OF DECISION

Action for negligence against a utility company and the chairman of the State Board of Mediation for personal injuries sustained by a bus passenger during the period that possession was taken by the state under the King-Thompson Act. Self-serving statements and conclusions are not evidence. The chairman of the State Board of Mediation was acting as agent of the state and is not personally liable. The employees of the utility did not become state employees by operation of law and the employees remained employees of the utility. The relationship between the state and the utility was akin to that of independent contractor. Possession of the state was technical and not actual and created no liability for the tortious acts of employees of the utility. Said utility company was liable for the negligence of its motorbus operator. By retaining the operating revenues the utility company ratified the tortious acts of the operating personnel of the utility. A constitutional question was not properly raised by plaintiff and may not be raised by amici curiae.

HEADNOTES

1. EVIDENCE: Self-serving Statements Not Binding. Self-serving statements of defendant's president are not binding on plaintiff. And the conclusions of the chairman of the State Board of Mediation have no evidentiary value.

2. STATES: Officers: No Personal Liability of State Agent. The chairman of the State Board of Mediation was acting as agent of the state and is not personally liable.

3. STATES: Public Utilities: Master and Servant: King-Thompson Act: Employer and Employee Relationship Not Created by Operation of Law. Invoking the provisions of the King-Thompson Act did not create the relationship of employer and employee by operation of law between the state and the employees of the utility company.

4. STATES: Public Utilities: Master and Servant: King-Thompson Act: Utility Employees Not Employed by State Agent. The chairman of the State Board of Mediation, who was the agent of the state, did not enter into any contracts of employment with the employees of defendant utility. None of such employees were paid by the state and the agent of the state exercised no control over the physical operation of the utility.

5. STATES: Public Utilities: King-Thompson Act: Effect of Seizure. The King-Thompson Act authorizes the governor to take possession of the physical property of the utility, not to command the services of the personnel of the utility.

6. STATES: Public Utilities: King-Thompson Act: Nature of Relationship. The relationship established between the state and the utility was akin to that of independent contractor. The utility was not subject to the agent's right to control with respect to its physical conduct in the performance of the undertaking.

7. STATES: Public Utilities: King-Thompson Act: Possession Not Actual. Possession of the state was legal, nominal or technical and not actual.

8. STATES: Public Utilities: King-Thompson Act: No Liability of State. The technical right of possession did not create liability of the state on account of the tortious acts of the employees of the utility.

9. PUBLIC UTILITIES: Master and Servant: King-Thompson Act: Liability of Utility Company. The employees continued as employees of defendant utility company and said company was liable for the alleged negligence of its motorbus operator.

10. TORTS: Master and Servant: Ratification of Tort. By retaining the operating revenues defendant utility company ratified the tortious acts of the operating personnel of the utility.

11. CONSTITUTIONAL LAW: Not Properly Raised by Amici Curiae. Plaintiff did not timely raise the constitutionality of the King-Thompson Act and it may not be raised by amici curiae.

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

AFFIRMED AS TO DEFENDANT VANCE JULIAN, CHAIRMAN, MISSOURI STATE BOARD OF MEDIATION, AND REVERSED AND REMANDED AS TO DEFENDANT KANSAS CITY PUBLIC SERVICE COMPANY.

Thomas C. Swanson, James Daleo, Roy P. Swanson, George H. Gangwere and Richard G. Poland for appellant.

(1) The King-Thompson Act (V.A.M.S. 295-180 et seq.) is unconstitutional. It is in conflict with federal law which has preempted the field of labor disputes. Judgments based upon its provisions cannot stand. 49 Stat. 449, Ch. 372; 29 U.S.C. and 29 U.S.C.A., Secs. 151 et seq.; 61 Stat. 136, Ch. 120; 29 U.S.C. and 29 U.S.C.A. Supp. III, secs. 141 et seq.; Amalgamated Assn., etc., v. Wisconsin Employment Board, 340 U.S. 383, 95 L.Ed. 364. (2) While the federal laws (supra) define an "employer," as not including any "state," the facilities of the streetcar company respondent here, were not "state property," and could not be made so by legislative act. Constitution of Missouri, Art. I, Secs. 26 and 28; State ex rel. Jones v. Brown, 92 S.W.2d 718. (3) Appellant has the right to challenge the validity of the King-Thompson Act. Art. I, Sec. 14, Const. Mo.; DeMay v. Liberty Co., 37 S.W.2d l.c. 646; Randolph v. City of Springfield, 257 S.W. 449. (4) An unconstitutional statute confers no rights and is void from the date of its enactment. State ex rel. Miller v. O'Malley, 117 S.W.2d 319. (5) Respondent has the right to follow the assets of the streetcar company, the same as if it had emerged from a receivership. Stuart v. Dickinson, 235 S.W. 446; Consolidated Electric Co. v. Panhandle Co., 189 F.2d 777; Texas Pacific v. Bloom's Admr., 164 U.S. 636, 41 L.Ed. 580, 17 S.Ct. 216. (6) Respondent Julian's role, valid or void, was that of a trustee of an express trust, similar to functions of the state insurance commissioner, or banking commissioner, in operating companies as "going concerns"; whatever he did was as a mere corporator of the streetcar company and in that he wore no robes of immunity as a state official. V.A.M.S. 375.560 (9), as to State Insurance Commissioner. V.A.M.S. 361.300, 361.340, 361.370 as to Banking Commissioner; Bank of U.S. v. Planters Bank, 9 Wheat. 904, 6 L.Ed. 244; Wabash v. Bridal, 94 F.2d 117; Lucas v. Mfg. Co., 163 S.W.2d 750; Birdsong v. Jones, 8 S.W.2d 98. (7) Mr. Julian, in fact, "took possession," of nothing, irrespective of what the Governor's directive contained. The Josefa Segunda, 23 U.S. 312, 6 L.Ed. 329; Rantala v. U.S., 2 F.2d 60. (8) The trial court erred in denying appellant's application to amend her petition upon respondents' motions to dismiss being sustained. She is entitled to have this case remanded so that she may so amend, where she may have misconceived her remedy. Supreme Court Rule 3.22; Husser v. Markham, 210 S.W.2d 405; Kelley v. National Lead Co., 210 S.W.2d 728.

John M. Dalton, Attorney General, and Robert F. Sevier, Assistant Attorney General, for respondent Vance Julian.

(1) The constitutionality of the King-Thompson Act cannot be raised in this court against defendant Vance Julian. Laret Inv. Co. v. Dickman, 345 Mo. 449, 134 S.W.2d 65; Nemours v. City of Clayton, 351 Mo. 317, 172 S.W.2d 937. (2) It is not necessary to pass on the constitutionality of the Act in order to determine this appeal. K.C. v. Tiernan, 356 Mo. 138, 202 S.W.2d 20; State ex rel. Mediation Board v. Pigg, 244 S.W.2d 75; Stone v. Interstate Gas Co., 103 F.2d 544. (3) Appellant may not change her theory of recovery from that asserted in the trial court. 2 Missouri Digest, Appeal and Error, Key 171 (1); Sutton v. Prudential Ins. Co., 193 S.W.2d 938; 54 Am. Jur., sec. 592; 39 Am. Jur., sec. 10. (4) The King-Thompson Act reveals the state has not consented to be sued. It is evident Vance Julian was acting as an agent of the state, and therefore it is patent suit could not be maintained against the state without its consent. Klevan v. Morris, 247 S.W.2d 832; State ex rel. Highway Commission v. Bates, 317 Mo. 696; Zoll v. St. Louis County, 124 S.W.2d 1168. (5) The trial court properly overruled plaintiff's motion to amend her petition. 36 Words and Phrases, p. 823. (6) "Seizure" as contemplated by the King-Thompson Act was a token seizure. Such a seizure did not place the possession of the facilities of the street railway company in the possession of Vance Julian as the agent of the state. Therefore, the trial court should have sustained defendant Vance Julian's motion to dismiss. House Journal, 64th General Assembly, Vol. I, 1947, pp. 675, 676, 744; Withers Cigar Co. v. Kirkpatrick, 26 S.E.2d 255. (7) King-Thompson law patterned after the New Jersey Law of 1946 which did not contemplate total seizure. Chap. 38, p. 87, Laws of New Jersey, 1946; Laws of New Jersey, 1947, Chap. 75, Sec. 4; State v. Traffic Telephone Workers Federation of New Jersey, 142 N.J. Eq. 792; Stanton v. Ruthbell Coal Co., 34 S.E.2d 257.

Charles L. Carr for respondent Kansas City Public Service Commission.

(1) The seizure of the public utility property of the Kansas City Public Service Company by the State of Missouri "for the use and operation by the State of Missouri in the public interest" was a bona fide, actual seizure — not a mere token or subterfuge seizure — of said property by the state under its police power, ousting, by compulsion, the possession, control and operation of said property by the Kansas City Public Service Company and transferring the actual and exclusive possession, control and operation thereof to the State of Missouri, making the former representatives and employees of the Kansas City Public Service Company representatives and employees of the State of Missouri only with regard to said state possession, control and operation and relieving said company of any and all responsibility and liability for accidents occurring during said state possession, control and operation. Preston v. Union Pacific R. Co., 239 S.W. 1080, 292 Mo. 442, refers to federal seizure act of Aug. 29, 1916, and President's Proclamation of Dec. 26, 1917, quoted, under which railroads were seized. State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 362 Mo. 798; New Jersey Bell Tel. Co. v. Communications Workers, 75 A.2d 277, 9 N.J. Super. 110; Missouri Pacific R. Co. v. Ault, 65 L.Ed. 1087, 256 U.S. 554, 41 S.Ct. 593; Western Union Telegraph Co. v. Poston, 65 L.Ed. 1157, 256 U.S. 662, 71 S.Ct. 598; RSMo 1949 (V.A.M.S.), Chap. 295, Secs. 295.180, 295.190, 295.200, paragraphs 1 and 6, and 295.210; Proclamation of Governor Forrest Smith, dated April 29, 1950; Executive Order I of Governor Forrest Smith, dated April 29, 1950; Executive Order II of Governor Forrest Smith, dated April 29, 1950; Executive Order III of Governor Forrest Smith, dated December 11, 1950; New Jersey Laws of 1946, approved March 26, 1946; Sec. I, as amended by Chap. 75, Sec. 3, Laws of 1947, approved April 22, 1947; Sec. XIII, as amended by Chap. 14, Sec. I, Laws of 1950, approved March 30, 1950; Laws of New Jersey, 1947, Chap. 75, Sec. 4, approved April 22, 1947; 10 U.S.C.A., Title 10, Army, Chap. 31, Sec. 1361, pp. 233-234; Act of Aug. 29, 1916, c. 418, Sec. 1, 39 Stat. 645 (control of transportation systems in time of war); Proclamation of the President, Dec. 26, 1917, seizing railroads, referred to and quoted; Preston v. Union Pacific R. Co., 239 S.W. 1080, 292 Mo. 442; Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Northern Pacific R. Co. v. North Dakota, 63 L.Ed. 897, 250 U.S. 135, 39 S.Ct. 505; Act of Congress, March 21, 1918, Chap. 25, Secs. 8, 9, and 10, 40 Stat. at L. 455, 456 and Proclamations of the President of March 29, 1918, and April 11, 1918, as well as Order No. 50 of Oct. 28, 1918, referred to and quoted in Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Joint Resolution of Congress, July 16, 1918, Chap. 154, 40 Stat. at L. 904, and Proclamation of the President, July 22, 1918, 40 Stat. at L. 1807, seizing telegraph and telephone systems, referred to and quoted, Western Union Telegraph Co. v. Poston, 65 L.Ed. 1157, 256 U.S. 662, 71 S.Ct. 598. Virginia Code, 1950, Title 33, Secs. 202 to 208 (33-202 to 33-208) (state seizure), Title 40, Secs. 75 to 95 (40-75 to 40-95); Virginia 1947 Public Utilities Disputes Law, Chap. 9, approved Jan. 29, 1947; 19 L.R.R.M. (Labor Relations Reference Manual) 3025; Virginia 1952 Public Utilities Disputes Act (State seizure of public utilities), Virginia Laws, 1952, Chap. 696, approved April 7, 1952, 30 L.R.R.M. (Labor Relations Reference Manual) 3002; Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; State ex rel. Leach v. American Surety Co. of New York, 242 S.W. 983, 210 Mo. App. 203; Foster v. Western Union Telegraph Co., 219 S.W. 107, 205 Mo. App. 1; Taylor v. Western Union Telegraph Co., 231 S.W. 78, 207 Mo. App. 145; Stookey v. St. Louis-S.F. Ry. Co., 249 S.W. 141, 215 Mo. App. 411; Cravens v. Hines, 218 S.W. 912; Glynn v. M.F.A. Mutual Ins. Co., 254 S.W.2d 623; McFarland v. Dixie Machinery Equipment Co., 153 S.W.2d 67, 348 Mo. 341; Ellegood v. Brashear Freight Lines, Inc., 162 S.W.2d 628, 236 Mo. App. 971; United States v. United Mine Workers of America, 91 L.Ed. 884, 330 U.S. 258, 67 S.Ct. 677; United States v. Peewee Coal Co., 95 L.Ed. 809, 314 U.S. 114, 71 S.Ct. 690; Northern Pacific Ry. Co. v. North Dakota, 63 L.Ed. 897, 250 U.S. 135, 39 S.Ct. 505; Erie R. Co. v. Caldwell, 264 F. 947; United States v. Chemical Foundation, 71 L.Ed. 131, 272 U.S. 1, 47 S.Ct. 1; United States v. Switchmen's Union of North America, 97 F. Supp. 97; H.J. Harris v. John S. Battle, Governor, Walter L. Hall, v. John S. Battle, Governor, Both cases; Circuit Court, City of Richmond, Virginia. Both cases uphold Virginia 1952 Public Utilities Disputes Act and actual state seizure thereunder. Digested 32 L.R.R. (Labor Relations Reporter), pp. 106-107, June 15, 1953. (2) When public utility property is seized under the police power — either state or federal — the state or federal possession, control and operation is complete and exclusive (not divided) to the entire exclusion of the private public utility corporation, or entity; the exercise of the police power being an exclusive act of sovereignty. Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Preston v. Union Pacific R. Co., 239 S.W. 1080, 292 Mo. 442; Northern Pacific R. Co. v. North Dakota, 63 L.Ed. 897, 250 U.S. 135, 39 S.Ct. 505; State ex rel. Leach v. American Surety Co. of New York, 242 S.W. 983, 210 Mo. App. 203; Missouri Pacific R. Co. v. Ault, 65 L.Ed. 1087, 256 U.S. 554, 41 S.Ct. 593; Erie R. Co. v. Caldwell, 264 F. 947. (3) It is not necessary that the title to private public utility property be transferred to the state as contended in appellant's Point (2) and that such property become "state property" to make a seizure valid, it being sufficient that the possession, control and operation — user — of said property be transferred to the state. United States v. United Mine Workers of America, 91 L.Ed. 884, 330 U.S. 258, 67 S.Ct. 677; United States v. Thompson, 66 L.Ed. 299, 257 U.S. 419, 42 S.Ct. 159. (4) The fact that the state availed itself of the public utility officials and employees of the Kansas City Public Service Company and made them state representatives and employees to carry on state operation of the seized public utility property of said company does not mean that such officials and employees continued to act for or on behalf of the public utility private owner in relation to said state operation and did not and does not impose responsibility or liability on said private owner with regard to said operation. It is customary when public utility or other property is seized by the government to have the former officers and employees of the private owner to act as government representatives and employees — this in order to have the property operated by efficient and experienced personnel. Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Preston v. Union Pacific R. Co., 239 S.W. 1080, 292 Mo. 442; United States v. United Mine Workers of America, 91 L.Ed. 884, 330 U.S. 258, 67 S.Ct. 677; Northern Pacific R. Co. v. North Dakota, 63 L.Ed. 897, 250 U.S. 135, 39 S.Ct. 505; United States v. Brotherhood of Locomotive Engineers, 79 F. Supp. 485; See also cases cited under Point (1). (5) The King-Thompson Law RSMo, 1949 — V.A.M.S. — Chapter 295, and particularly Sections 295.180, 295.190, 295.200, and 295.210, the seizure and anti-strike sections), without the necessity of resorting to any rules of construction to interpret legislative intent, clearly authorizes and resulted in the real and active seizure of the public utility property of the Kansas City Public Service Company by the State of Missouri — not a mere token of subterfuge seizure (as contended by plaintiff) with the actual possession, control and operation of said property remaining in said Kansas City Public Service Company — but if the court deems it necessary to resort to rules of construction (which this defendant denies) then the court, under said rules, must necessarily hold that said seizure was a real and actual seizure (not a mere token or subterfuge seizure) as otherwise said King-Thompson Law, particularly the above-mentioned sections relating to seizure and strikes, would be unconstitutional as contrary to the Federal labor relations laws; the rule of construction (if deemed pertinent) being that a court must, if reasonably possible, construe a law to uphold its constitutionality rather than construe same to render it unconstitutional. If the seizure be a mere token or subterfuge seizure (which this defendant denies) then the private public utility corporation (Kansas City Public Service Company) would be in possession and control of, and operating, its public utility property and the national labor relations laws, particularly those provisions authorizing and regulating strikes, would apply and be relevant and the King-Thompson Law, at least to the extent that it prohibits strikes when seized by the state (the seizure being construed as a token and not an actual seizure) would be unconstitutional and void; this treating the question as one of construction rather than as one directly raising a constitutional question. Amalgamated Assn. of Street, Electric Ry. Motor Coach Employees of America v. Wisconsin Employment Relations Board, 95 L.Ed. 364, 340 U.S. 383, 71 S.Ct. 359; See also authorities cited under Points (1) and (12). (6) The language of the King-Thompson Law (RSMo 1949 — V.A.M.S. — Chapter 295) and the legislative intent are clear and unambiguous with regard to the actual seizure of public utility property and its exclusive possession, control and operation by the State of Missouri, so that rules of construction need not and should not be resorted to, being unnecessary, to determine legislative intent. State ex inf. Rice ex rel. Allman v. Hawk, 228 S.W.2d 785, 360 Mo. 490; Goodrich Silvertown Stores v. Brashear Freight Lines, Inc., 198 S.W.2d 357; State ex inf. Kamp ex rel. Rodgers v. Pretended Consolidated School Dist. No. 1 of Montgomery County, 223 S.W.2d 484, 359 Mo. 639; Northern Pacific R. Co. v. North Dakota, 63 L.Ed. 897, 250 U.S. 135, 39 S.Ct. 505. (7) Constitutional construction of a statute, if reasonably possible, prevails over an unconstitutional construction. United States ex rel. Attorney General of the United States v. Delaware Hudson Co., 53 L.Ed. 836, 213 U.S. 366; State ex rel. Webster Grove Sanitary Sewer Dist. v. Smith, 115 S.W.2d 816, 342 Mo. 365; State ex inf. McKittrick v. American Colony Ins. Co., 80 S.W.2d 876, 336 Mo. 406; State v. Day-Brite Lighting Inc., 220 S.W.2d 782. (8) If a statute is valid and constitutional under one interpretation and is invalid and unconstitutional under another interpretation no constitutional question as such arises, but only a question of construction. Stribling v. Jolley, 245 S.W.2d 885; Cotton v. Iowa Mut. Liability Ins. Co., 251 S.W.2d 246. (9) Parol evidence, opinions and conclusions are inadmissible to impeach, contradict or vary statutes, executive proclamations and orders. Cox v. Miguery, 105 S.W. 675, 126 Mo. App. 669; Ex parte Seward, 253 S.W. 356, 299 Mo. 385; Coleman v. Jackson County, 160 S.W.2d 691, 349 Mo. 255; Adamack v. Herman, 33 S.W.2d 135; Roach-Manigan Paving Co. v. Southwestern Surety Ins. Co., 238 S.W. 119; Masonic Home of Missouri v. Windsor, 92 S.W.2d 713, 338 Mo. 877. (10) The constitutionality of the King-Thompson Law (RSMo 1949, V.A.M.S., Chapter 295, and particularly with reference to Sections 295.180, 295.190, 295.200 and 295.210, the state seizure and anti-strike sections) is not involved or a determinative question. The key question is who had possession and control of and who was operating the public utility business of the Kansas City Public Service Company at the time of the accident involved. Whether the state agent and representative, Vance Julian, acted under a constitutional or unconstitutional statute — whether he was a de jure or a de facto public officer — he was nevertheless in the possession and control of and operating the said business and said business was not in the possession and control of, and was not being operated by, the Kansas City Public Service Company. Said company, therefore, cannot be held culpable, negligent or liable for such accident. Gershon v. Kansas City, 215 S.W.2d 771, 240 Mo. App. 418; State ex rel. City of Republic v. Smith, 139 S.W.2d 929, 345 Mo. 1158; See also authorities cited under Points (1) and (16). (11) The King-Thompson Law (Chapter 295, RSMo 1949, V.A.M.S., and particularly Sections 295.180, 295.190, 295.200 and 295.210, the state seizure and anti-strike sections) is constitutional While appellant has not properly raised — either at the first opportunity or specifically — the constitutional questions sought to be raised and this court acquired no jurisdiction by reason thereof (jurisdiction acquired on other grounds), this respondent makes no point that this court should not determine same as this is a test case involving many other pending lawsuits and the constitutional questions raised (while frivolous and unfounded) involve matters of public concern and should be determined. State ex rel. McMonigle v. Spears, 213 S.W.2d 210, 358 Mo. 23. (12) The King-Thompson Law (Chapter 295, RSMo 1949, V.A.M.S., particularly Sections 295.180, 295.190, 295.200 and 295.210, the state seizure and anti-strike sections) is not unconstitutional under Article I, Section 8, paragraph 3, under Article VI, paragraph 2, or under Amendment XIV, Section 1 of the Constitution of the United States as being in conflict with federal law or contrary to the National Labor Relations Act or the Labor Management Relations Act, as such laws recognize the right of states to seize — possess, control and operate — public utility property and to prohibit strikes during state possession, control and operation; said federal laws not applying to states or subdivisions thereof as employers, or otherwise, or to the employees and representatives of such. National Labor Relations Act, 1935, 29 U.S. Code Ann., p. 129, Sec. 152, paragraphs (2) and (3); 49 Stat. 450; Labor Management Relations Act, 1947, 29 U.S. Code Ann. (Supplement), p. 27, Sec. 152, paragraphs (2) and (3); 61 Stat. 137, 29 U.S. Code Ann. (Supplement), pp. 208-209, Sec. 188; 61 Stat. 160; Amalgamated Assn. of Street, Electric Ry. Motor Coach Employees of America v. Wisconsin Employment Relations Board, 95 L.Ed. 364, 340 U.S. 383, 71 S.Ct. 359; Wisconsin Statutes, 1949, Secs. 111.50-111.65; Chap. 414, Laws 1947; Kelly v. Washington ex rel. Foss Co., 82 L.Ed. 3, 302 U.S. 1, 58 S.Ct. 87; New Jersey Bell Tel. Co. v. Communications Workers, 75 A.2d 277, 9 N.J. Super. 110; City of Detroit v. Division 26, Amalgamated Assn. of Street, Electric Ry. Motor Coach Employees of America, 51 N.W.2d 228; appeal dismissed by S.Ct., 97 L.Ed. (Adv. Sheet) 29; Michigan Compiled Laws, 1948, Secs. 423.201-423.207 (Hutchinson Act), particularly Sec. 423.202; United States v. United Mine Workers of America, 91 L.Ed. 884, 330 U.S. 258, 67 S.Ct. 677; Local 33 B United Marine Division, International Longshoremen's Assn. v. Virginia, 71 S.E.2d 159, 193 Va. 773; certiorari denied U.S.S. Ct. 97 L.Ed. (Adv. sheet 2) p. 125; H.J. Harris v. John S. Battle, Governor, Walter L. Hall v. John S. Battle, Governor, Both cases: Circuit Court, City of Richmond, Virginia. Both cases uphold Virginia, 1952 Public Utilities Disputes Act; Digested 32 L.R.R. (Labor Relations Reporter) pp. 106-107, June 15, 1953; State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 362 Mo. 798; Kincaid-Webber Motor Co. v. Quinn, 241 S.W.2d 886; See also New Jersey and Virginia statutes and authorities cited under (1). (13) The appellant-plaintiff herein cannot claim or contend the King-Thompson Law (RSMo 1949, V.A.M.S., Chapter 295 and particularly Sections 295.180, 295.190, 295.200 and 295.210 — the state seizure and anti-strike sections) is unconstitutional under Missouri Constitution, Art. I, Sections 14, 26 and 28 in that it takes private property of the Kansas City Public Service Company for public use without the prior payment of just compensation as such constitutional question can be raised only by the Kansas City Public Service Company which alone would be the party aggrieved thereby. As such company has not raised such constitutional question such question is not at present involved. State ex rel. Toliver v. Board of Education of City of St. Louis, 230 S.W.2d 724, 360 Mo. 671; State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 362 Mo. 798; State ex rel. Thompson v. Jones, 41 S.W.2d 393, 328 Mo. 267; See also authorities cited under (14). (14) The King-Thompson Law (RSMo 1949, V.A.M.S., Chapter 295, and particularly Sections 295.180, 295.190, 295.200 and 295.210, the state seizure and anti-strike sections) is not unconstitutional as denying a remedy to plaintiff in violation of Article I, Section 14 of the Missouri Constitution of 1945, as a state has a clear constitutional right to acquire or take possession of property and then assert its immunity against suit without its consent as to any injury or damage or other alleged liability arising out of the use of said property by the sovereign state; said constitutional provision not being intended to create new rights and remedies and only applying to wrongs recognized by the law of the land — law of Missouri. State ex rel. Natl. Refining Co. v. Seehorn, 127 S.W.2d 418, 314 Mo. 547; Landis v. Campbell, 79 Mo. 433; De May v. Liberty Foundry Co., 37 S.W.2d 640, 327 Mo. 495; See also cases cited under Point (13). (15) Sections 295.180, 295.190, 295.200 and 295.210, RSMo 1949 (V.A.M.S.), of the King-Thompson Law, and concerned and dealing with state seizure of public utilities and containing anti-strike provisions, are each distinct, separable and independent sections of the King-Thompson Law and may be upheld as constitutional even though another separate and distinct part of the law be deemed unconstitutional. RSMo 1949 (V.A.M.S.), Sec. 1.140; State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 362 Mo. 798; Poole Creber Market Co. v. Breshears, 125 S.W.2d 23, 343 Mo. 1133; State ex rel. Fire Dist. of Lemay v. Smith, 184 S.W.2d 593, 353 Mo. 807. (16) An unconstitutional statute may give rise to duties, create a status, and even confer, create and fix rights, obligations and liabilities. Chicot County Drainage Dist. v. Baxter State Bank, 84 L.Ed. 329, 308 U.S. 371, 60 S.Ct. 317; J.A. Dougherty's Sons v. Commissioner of Internal Revenue, 121 F.2d 700; State ex rel. Thompson v. Jones, 41 S.W.2d 393, 328 Mo. 267; State on inf. McKittrick v. Koon, 201 S.W.2d 446, 356 Mo. 284, limiting State ex rel. Miller v. O'Malley, 117 S.W.2d 319; See also authorities cited under points (2) and (13). (17) A statute is presumed to be constitutional and a court will not declare a statute unconstitutional unless it plainly — beyond a reasonable doubt — contravenes the constitution. The party contending that a statute is unconstitutional has the burden of proof beyond a reasonable doubt to demonstrate unconstitutionality. Graves v. Purcell, 85 S.W.2d 543, 337 Mo. 574; Bowman v. Kansas City, 233 323 S.W.2d 26; Poole Creber Market Co. v. Breshears, 125 S.W.2d 23, 343 Mo. 1133; Hines v. Hook, 89 S.W.2d 52, 338 Mo. 114; Dye v. School Dist. No. 32 of Pulaski County, 195 S.W.2d 874, 350 Mo. 231. (18) Appellant-plaintiff has no right to follow the assets returned by the State of Missouri to the Kansas City Public Service Company upon the termination of state seizure. The State of Missouri and its state agent, Vance Julian, are not liable to the appellant-plaintiff on account of the accident which occurred during state seizure — possession, control and operation — as the state has not waived its immunity from liability. Bush v. State Highway Commission, 46 S.W.2d 854, 329 Mo. 843; Hinds v. City of Hannibal, 212 S.W.2d 401; Brown v. City of Craig, 168 S.W.2d 1080, 350 Mo. 836; Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393; Broyles v. State Highway Commission, 48 S.W.2d 78. (19) As the State of Missouri and its state agent, Vance Julian, are immune from liability, they being in the exclusive possession, control and operation of the public utility property of the Kansas City Public Service Company at the time the accident involved occurred, the equitable doctrine of following assets, a derivative right only, is inapplicable as such doctrine only applies when the one in possession and control at the time of the accident is liable and then later transfers assets to a successor — not the situation here as there is no original liability to justify the tracing of assets to a successor to satisfy an original liability of the predecessor. Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Happy v. Cole County Bank, 93 S.W.2d 870, 328 Mo. 1025; Stuart v. Dickinson, 235 S.W. 446, 290 Mo. 516; Texas Pacific Ry. Co. v. Manton, 41 L.Ed. 580, 164 U.S. 636; Consolidated Electric Corp. v. Panhandle Eastern Pipe Line Co., 189 F.2d 777; United States v. Thompson, 66 L.Ed. 299, 257 U.S. 419, 42 S.Ct. 159; Western Union Telegraph Co. v. Poston, 65 L.Ed. 1157, 256 U.S. 662, 41 S.Ct. 598; Missouri Pacific R. Co. v. Ault, 65 L.Ed. 1087, 256 U.S. 554, 41 S.Ct. 593; See also authorities under Points (1) and (20). (20) The State of Missouri and its state agent, Vance Julian, were not trustees of an express (or other) trust for the Kansas City Public Service Company, exercising functions similar to those of trustees, receivers, administrators, "corporators," or insurance or bank commissioners, as claimed by appellant. The possession, control and operation of the property of the Kansas City Public Service Company under state seizure and the police power of the state were independent, exclusive and not representative of the Kansas City Public Service Company or its bondholders or stockholders. Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; State ex rel. Leach v. American Surety Co. of New York, 242 S.W. 983, 210 Mo. App. 203; See also authorities under Points (1) and (2). (21) The accounting (either by agreement or otherwise) between the State of Missouri and the Kansas City Public Service Company at the termination of state seizure and with respect thereto is a matter exclusively between the state and said company and is of no legal concern to third persons, including appellant here, as for example what reasonable rental value the state should have paid to the company for the use of its property in the public interest during state seizure (limited temporary eminent domain), whether the returned depreciated property and cash on hand represents a loss or a gain to the company, and whether the credits and debits balance, i.e., whether an accounting is even necessary. There is no pleading or evidence in this case that the company sustained a loss or a gain through the state's seizure and operation of its property and such evidence is immaterial to the issues here involved. United States v. Peewee Coal Co., 95 L.Ed. 809, 341 U.S. 114, 71 S.Ct. 670; Missouri Pacific R. Co. v. Ault, 65 L.Ed. 1087, 256 U.S. 554, 41 S.Ct. 593; See also authorities under Points (1), (2), (13), (14), (18), (19) and (20). (22) The trial court did not err in denying appellant's application to amend petition upon respondents' motions to dismiss being sustained and appellant is not entitled to have case remanded in order that she may amend her petition and proceed upon another theory as plaintiff is not entitled to recover against the state or its state agent, Vance Julian, or against the Kansas City Public Service Company on any theory; all relevant, competent and pertinent evidence having been fully developed and introduced herein; and the trial court having committed no error. Oliver v. Oakwood Country Club, 245 S.W.2d 37; Lance v. Van Winkle, 213 S.W.2d 401, 358 Mo. 143; State ex rel. and to Use of Alton R. Co. v. Public Service Commission, 110 S.W.2d 1121; Western Union Telegraph Co. v. Poston, 65 L.Ed. 1157, 256 U.S. 662, 41 S.Ct. 598; Missouri Pacific R. Co. v. Ault, 65 L.Ed. 1087, 256 U.S. 554, 41 S.Ct. 593; Smith v. St. Louis Pub. Serv. Co., 259 S.W.2d 692. (23) An appellate court shall not reverse any judgment, unless it believes that error was committed by the trial court against the appellant and materially affecting the merits of the action, and in a case tried without a jury (as here) the judgment shall not be set aside unless clearly erroneous. As no error was committed by the trial court herein and as the final judgment of dismissal was proper, such judgment of dismissal should be affirmed. RSMo 1949 (V.A.M.S.), Sec. 512.160 (2); Civil Code Sec. 140 (b); RSMo 1949 (V.A.M.S.), Sec. 510.310 (4); Civil Code Sec. 114 (d); Smithpeter v. Wabash R. Co., 231 S.W.2d 135, 360 Mo. 835; Cosentino v. Heffelfinger, 229 S.W.2d 546, 360 Mo. 535; Smith v. St. Louis Pub. Serv. Co., 259 S.W.2d 692; McDill v. Terminal R. Assn. of St. Louis, 268 S.W.2d 823; Blanford v. St. Louis Pub. Serv. Co., 266 S.W.2d 718; Patterson v. Wilmont, 245 S.W.2d 116; Bell v. Barrett, 76 S.W.2d 394; Brewster v. Terry, 180 S.W.2d 600, 352 Mo. 967; Hilmer v. Decher, 183 S.W.2d 321; Bowzer v. Singer, 231 S.W.2d 309. Swofford, Schroeder Shankland, Homer A. Cope, Sprinkle, Knowles Carter, Rogers, Field Gentry and O'Sullivan Killiger amici curiae.

(1) The seizure by the State of Missouri was a mere token one. The State of Missouri never actually assumed control of the company, nor the relationship of master to its servants. 56 C.J.S. 33; Atkisson v. Murphy, 179 S.W.2d 27, 352 Mo. 644; State v. Traffic Tel. Workers, 142 N.J. Eq. 792, 61 A.2d 570; Powell-Myers Lumber Co. v. Fremont Gulf Railroad Co., 2 La. App. 164. (2) The legislative history of Chapter 295, RSMo 1949, shows that a token seizure was intended. Chap. 295, RSMo 1949; Ex parte Helton, 117 Mo. App. 609, 93 S.W. 913; House Journal, 1947, Vol. 1, pp. 672, 744; United States v. United States Shoe Machinery Co., 264 F. 138. (3) The language of the statute indicates only a token seizure is authorized. Chap. 295, RSMo 1949; Doemker v. City of Richmond Heights, 322 Mo. 1024, 18 S.W.2d 394; Union Electric Co. v. Morris, 359 Mo. 564, 222 S.W.2d 767; Fischbach Brewing Co. v. St. Louis, 231 Mo. App. 793, 95 S.W.2d 335; Stanton v. Ruthbell Coal Co., 127 W. Va. 685, 34 S.E.2d 257, certiorari denied 326 U.S. 740, 90 L.Ed. 442, 66 S.Ct. 53. (4) If held to be other than a token seizure this act would be unconstitutional. The act would be contrary to Article I of the Constitution of Missouri. State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 342 Mo. 365, 115 S.W.2d 816; Sec. 26, Art. I, Constitution of Missouri, 1945; Sec. 295.180, RSMo 1949; State ex rel. State Highway Comm. v. James, 356 Mo. 1161, 205 S.W.2d 534; Guaranty Savings Loan Assn. v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955. (5) The act would be contrary to Article III of the Constitution of Missouri. Sec. 295.180, RSMo 1949; Sec. 23, Art. III, Constitution of Missouri, 1945; Graff v. Priest, 356 Mo. 401, 201 S.W.2d 945. (6) Analysis of respondent's position fails to disclose a tenable legal theory. Missouri Pacific R. Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087; Marion Rye Valley Ry. Co. v. United States, 270 U.S. 280, 70 L.Ed. 585; Chap. 38, Laws of N.J., 1946; State v. Traffic Tel. Workers, 142 N.J. Eq. 792, 61 A.2d 570; St. Charles Building Loan Assn. v. Webb, 360 Mo. 501, 229 S.W.2d 577; Tucker v. Frank J. Beltramo, 186 A. 821; City of Detroit v. Division 26 of Amalgamated Assn. of Street, Electric Ry. Motor Coach Employees of America, 51 N.W.2d 228.

Roy P. Swanson and George H. Gangwere amici curiae; Richard G. Poland of counsel.

(1) Plaintiff's action is not a suit against the state. Larson, War Assets Administrator and Surplus Property Administrator, v. Domestic Foreign Corp., 337 U.S. 682; State ex rel. v. Bates, 317 Mo. 696, 296 S.W. 418; Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832. (2) The so-called seizure was a technical one of limited effect. The company continued to operate the business in fact and in law, and is not exonerated from liability therefor. Neither the language of the King-Thompson Act nor the executive orders indicate an actual seizure or actual operation by Julian or the State of Missouri. Stanton v. Ruthbell Coal Co., 34 S.E.2d 257; State v. Telephone Workers Federation, 142 N.J. Eq. 792; Quinn v. Southgate Nelson Corp., 121 F.2d 190, certiorari denied 314 U.S. 682, 62 S.Ct. 185; Powell-Myers Lumber Co. v. Tremont Gulf R. Co., 2 La. App. 164; Carroll v. U.S., 16 F.2d 951; Glen Alden Coal Co. v. N.L.R.B., 141 F.2d 47; Warner Coal Corp. v. Costanzo Transportation Co., 144 F.2d 589; Mo. Pac. R. Co. v. Ault, 256 U.S. 554; Preston v. Union Pac. R. Co., 292 Mo. 442, 239 S.W. 1081; Kersten v. Hines, 283 Mo. 623, 223 S.W. 586; Northern Pacific R. Co. v. North Dakota, 250 N.W. 135, 39 S.Ct. 505; Stookey v. St. Louis-S.F.R. Co., 215 Mo. App. 411, 249 S.W. 141; Cravens v. Hines, 218 S.W. 912; Erie R. Co. v. Caldwell, 264 F. 947; Western Union Telegraph Co. v. Poston, 256 U.S. 662, 71 S.Ct. 598; Foster v. Western Union Telegraph Co., 205 Mo. App. 1, 219 S.W. 107; Taylor v. Western Union Telegraph Co., 207 Mo. App. 145, 231 S.W. 78. (3) The construction of the King-Thompson Act urged by the company would make it unconstitutional on its face. Amendments 5, 14, Constitution of the United States; Secs. 10, 26 and 28, Art. I, Constitution of Missouri, 1945. (4) Defendant Vance Julian's testimony was competent evidence and should have been considered by the trial court. Powell-Myers Lumber Co. v. Tremont Gulf R. Co., 2 La. App. 164. (5) If the legal effect of the so-called seizure is to exonerate the company from direct liability, then Vance Julian, as the operator of the business of the company, must be held subject to liability and the judgment ordered to be paid by the company. Robertson v. Sichel, 127 U.S. 507; South Carolina G.R. Co. v. Carolina C.G. C. Ry. Co., 93 F. 543; Birdsong v. Jones, 222 Mo. App. 768, 8 S.W.2d 98; Restatement of the Law of Trusts, secs. 264, 244, 245; Stuart v. Dickenson, 290 Mo. 516, 235 S.W. 446; Fidelity Casualty Co. v. Brightman, 53 F.2d 161; Mechem on Agency (2nd Ed.) sec. 1502; Barton v. Barbour, 104 U.S. 126; Walker v. Hatfield, 17 S.W.2d 357; Restatement of the Law of Trusts, sec. 2; Kersten v. Hines, 283 Mo. 623, 223 S.W. 586; The Western Maid, 257 U.S. 419; United States v. Peewee Coal Co., 341 U.S. 114.

Powell C. Groner, pro se; John H. Hendren of counsel.

[487] STORCKMAN, J.

This is a suit to recover damages in the sum of $15,000 for personal injuries alleged to have been sustained by the plaintiff on November 14, 1950 in Kansas City due to the negligence of the operator of a motorbus upon which she was a fare-paying passenger. The trial court dismissed the plaintiff's action and she appealed. The amount involved vests this court with jurisdiction. Section 3, Article V, Constitution of Missouri 1945.

In 1949, as it had been for years, the Kansas City Public Service Company was engaged in the operation of the mass transit system in Kansas City and adjoining portions of the State of Kansas. Its collective bargaining agreement with its operating employees was scheduled to expire on December 31, 1949. The company and union representatives negotiated but failed to agree upon a new contract. Shortly before the contract termination date the State Board of Mediation took jurisdiction and the company and its employees continued to operate the transit system. A public hearing panel was established, hearings were had, and on March 25, 1950, the panel handed down its report which, among other things, recommended a reduction of five cents per hour in the employees' rate of pay. The transit company notified the union representing the employees that if a settlement could not be reached by May 1st the company proposed to put into effect the wage reduction as recommended by the hearing panel. An agreement was not reached and a work stoppage was definitely threatened. On April 29, 1950, the day before the proposed wage reduction was to become effective, the governor of Missouri issued a proclamation and two executive orders invoking the provisions of what is commonly known as the King-Thompson Act. This act, Laws of Mo. 1947, Vol. 1, p. 358, is chapter 295 of the Revised Statutes of Missouri 1949, §§ 295.010 through 295.210, V.A.M.S. By his Executive Order No. II the governor authorized and directed Vance Julian, Chairman of the State Board of Mediation, to take possession of all or such parts of the plants, offices, facilities and equipment of the Kansas City Public Service Company as may be necessary to insure the operation of the utility in the public interest. Mr. Julian acted pursuant to the appointment, and the transit system continued to operate. The governor's proclamation and executive orders remained in effect until December 11, 1950, at which time the transit company and its employees agreed upon a new contract. It is during this period that the plaintiff claims to have been injured.

The plaintiff's suit was directed against "Vance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Defendants." The defendant Vance Julian will herein sometimes be referred to as Julian and the defendant Kansas City Public Service Company as the company or the transit company. In the alternative, the plaintiff alleged either (1) that Julian was the operator and manager of the transit company on the date of the injury, or (2) [488] that Julian was not such manager or in control of the transportation facilities but that the transit company "was in sole and complete control and management of its facilities," or (3) that both Julian and the transit company "were in control and operation of the defendant public service company's transportation facilities"; and that she does not know which alternative is true.

The transit company filed its separate answer denying liability because, among other reasons, the casualty occurred at a time when the governor of Missouri had taken "possession of the plant, officers, equipment and facilities of this defendant for use and operation by the State of Missouri in the public interest" under § 19 of the King-Thompson Act, and that at the time of the casualty Julian, pursuant to the governor's orders, and not the transit company, was in full possession and control of transit company's property and was operating the public utility business, and that the operator of the motorbus was not "at said time and place employed by this defendant or acting for or on behalf of this defendant within any scope of employment of this defendant, or in any capacity for this defendant."

Defendant Julian filed his separate motion to dismiss as to him. Among other things, he alleged that if he operated or possessed the property of the transit company he did so for the sole purpose of securing the continued operation of the property in the public interest, health and welfare pursuant to the proclamation and executive orders of the governor, and that for all other purposes at all times mentioned in plaintiff's petition, the transit company was operating streetcars and motorbusses in Kansas City for the transportation of persons for hire and was in sole and complete control and management of its facilities and business; and that the defendant transit company "was the master of the operator of the motorbus mentioned in plaintiff's petition and was liable as such for any negligence, if any, as alleged in plaintiff's petition." Further, Julian alleged that if he did operate and manage the property he was acting on behalf of the State of Missouri which had not consented to be sued.

Pursuant to the motion of defendant transit company there was a separate trial of the issues as to whether the transit company or Julian and the State of Missouri was operating the bus in question, and whether or not the operator and driver of said bus was the employee of the transit company or the employee of said Vance Julian and the State of Missouri. The hearing on the issues was without a jury and the trial court found that the motorbus involved in the accident was in the exclusive possession, control and operation of the State of Missouri acting by and through its state agent and representative, Vance Julian. The judgment was that both defendants, the transit company and Julian, be "dismissed with prejudice."

The primary question involved is whether the employer-employee relation existed between the motorbus driver and one or both of the defendants. Our first consideration is whether the legal status exists by operation of law, that is, by legislative fiat, and, if not, whether the relation was in fact created assuming the statute authorized it.

Authority for the proclamation and executive orders of the governor must be found in V.A.M.S. §§ 295.180- 295.210, since the authority of the executive and his representatives cannot exceed the power granted by the General Assembly. Section 295.180 provides in substance that if the effective operation of a public utility is threatened or interrupted by a lockout, strike or work stoppage, the governor is "authorized to take immediate possession of the plant, equipment or facility for the use and operation by the State of Missouri in the public interest." The governor's power and authority may be exercised through such department or agency of the government as he may designate. The section specifically provides that the properties of the utility "shall be returned to the owners thereof as soon as practicable after the settlement of said labor dispute, and it shall thereupon be the duty of such utility [489] to continue the operation of the plant facility, or equipment in accordance with its franchise and certificate of public convenience and necessity." Section 295.200 provides penalties for unlawful acts by persons, employees or representatives of the public utility designed to interfere with the operation of the utility and gives the courts power to enforce by injunction and other legal and equitable remedies any provision of the chapter or any rule or regulation prescribed by the governor. Section 295.210 contains clauses expressly preserving the constitutional privileges of an individual employee and safeguarding his right to quit his work.

The proclamation of the governor and his executive orders must all be within the grant of authority from the General Assembly. Likewise, acts of any representative appointed by the governor must be within the authority granted him by the governor. Acts in excess of the grant of power and authority would be invalid. There is no contention that either the governor or his representative Julian exceeded their authority in what was done.

The material evidence is largely documentary. The proclamation issued by the governor April 29, 1950, found that there was a threatened interruption of the operation of the Kansas City Public Service Company, a public utility, as a result of a labor dispute, and that the public interest, health and welfare were jeopardized thereby, and proclaimed that "the exercise of the authority vested in me by Section 19 of an Act of the 64th General Assembly found in Laws of Missouri, 1947, Vol. 1, pages 359 to 366, both inclusive, is necessary to insure the operation in Missouri of the Kansas City Public Service Company a public utility."

Executive Order No. 1, signed by the governor on the same day, made certain recitals and concluded with the following order: "I hereby take possession of the plants, equipment and all facilities of the Kansas City Public Service Company, located in the State of Missouri; for the use and operation by the State of Missouri in the public interest, effective at 11:00 P.M., Sunday, April 30, 1950."

The proclamation and Executive Order No. 1 had to do with taking possession of the utility property under the King-Thompson Act. Executive Order No. II, Julian's letter of April 29, 1950, and subsequent events had to do with the manner and method by which the utility was operated and the extent to which Julian used the powers granted to him.

The governor's Executive Order No. II, also dated April 29, 1950, after certain recitals, stated:

"(1) That Vance Julian, ¹ Chairman of the State Board of Mediation, is hereby authorized and directed to take possession of the plants, offices, facilities and equipment of every nature and description used in the operation of the business of the Kansas City Public Service Company in the State of Missouri or such parts of each of said plants, offices, facilities and equipment to the extent that it may be necessary for the purpose of carrying out the provisions of this Order, which is to insure that the said utility above mentioned is effectively operated in the interest of the people of this state in order that they may have the benefit of necessary and essential public passenger transportation.

1 Italics in quotations at this point and elsewhere in this opinion have been supplied unless otherwise indicated.

1 Italics in quotations at this point and elsewhere in this opinion have been supplied unless otherwise indicated.

"(2) That Vance Julian, Chairman of the State Board of Mediation, is further authorized and directed to take possession of any and all real and personal property or any other assets wherever the same may be situated which are used or shall be necessary to be used in connection with the operation of such plants, offices, facilities and equipment and to operate and arrange for the operation of such plants, offices, facilities and equipment [490] in any manner necessary in order to maintain public passenger transportation for the people of the State of Missouri and in order that the public interest may not be interfered with.

"(3) For the purpose of carrying out the processes² of this Order, that Vance Julian, Chairman of the State Board of Mediation, is authorized to select and hire such employees and agents as may be necessary and suitable to carry out the same; to exercise any contractual or any other rights of the owners of said plants, offices, facilities and equipment; to do any and all other things that may be necessary or desirable for or incidental to the use and operation of said plants, offices, facilities and equipment in order to effectively operate the same in the public interest and to take any and all other steps that may be necessary to carry out the provisions of this Order.

2 The word "processes" as used here and elsewhere in this order and Julian's letter of April 29, 1950, probably should be read as "purposes."

2 The word "processes" as used here and elsewhere in this order and Julian's letter of April 29, 1950, probably should be read as "purposes."

"(4) That Vance Julian, Chairman of the State Board of Mediation, shall operate the plants, offices, facilities and equipment mentioned herein under the terms and conditions of employment in effect at the time possession thereof is seized by him under the terms of this Order and he shall continue to operate the same until and unless otherwise directed by me.

"(5) That Vance Julian, Chairman of the State Board of Mediation, may permit, in his discretion and upon such terms and conditions as he deems advisable, the management of the above public utility to continue its managerial functions to the extent consistent with the processes of this Order.

"(6) All state agencies are directed to cooperate with Vance Julian, Chairman of the State Board of Mediation, to the fullest extent possible in carrying out the purposes of this Order.

"(7) That Vance Julian, Chairman of the State Board of Mediation, is authorized and directed to maintain the customary procedure for the adjustment of workers' grievances. He shall recognize the right of the workers to continue their membership in any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, provided that such concerted activities do not interfere with the operation of public passenger transportation.

"(8) All rules and regulations of the aforesaid utility governing the internal management and organization of the company shall remain in force and effect throughout the term of operation by the State of Missouri."

Pursuant to the proclamation and executive orders, defendant Julian, on April 29, 1950, transmitted to Powell C. Groner, president of Kansas City Public Service Company at Kansas City, a letter reading as follows:

"I hand you herewith the Proclamation of Governor Forrest Smith, dated April 29, 1950. I also hand you a copy of Executive Orders No. 1 and II relating to the same subject matter.

"Governor Smith, by virtue of said orders will take possession of the plants, equipment and all facilities of the Kansas City Public Service Company, located in the State of Missouri, for the use and operation by the State of Missouri in the public interest, all to be effected as of 11 o'clock P.M. Sunday, April 30, 1950.

"I have been directed in Executive Order No. II to take possession of the plants, offices, facilities and equipment of every nature and description, [491] both real and personal, used in the operation of the business of the Kansas City Public Service Company in the State of Missouri, or such parts as are necessary for the purpose of carrying out the provisions of the orders of Governor Smith. I am by this letter taking this formal step as of 11 o'clock P.M., Sunday, April 30, 1950. All of which is done to insure that the said utility above mentioned is effectively operated in the interest of the people of this state in order that they may have the benefit of necessary and essential public passenger transportation.

"Paragraph 5 of Executive Order No. II gives me the power to continue the operation of the utility under the present management. This I propose to do. Therefore, by virtue of the power given to me by the above mentioned orders, Honorable Powell C. Groner is ordered and directed to operate and manage the utility to the extent consistent with the processes of the Governor's orders. He will have the full charge of said utility and all officers and employees will continue under the terms and conditions of employment at the time possession thereof is seized, to-wit 11:00 P.M., Sunday, April 30, 1950. All wage scales and working conditions will remain the same unless otherwise directed.

"Paragraph 7 of Executive Order No. II will be in force and effect. The company and employees will operate under the terms of the 1949 labor agreement unless same has been amended by mutual agreement.

"All rules and regulations of the aforesaid utility governing the internal management and organization of the company shall remain in force and effect throughout the term of operation by the State of Missouri."

Additional evidence with respect to the operation of the utility will be discussed in the course of the opinion.

The two witnesses that testified, Mr. Groner and Mr. Julian, both drew conclusions both of law and fact during the course of their testimony. Self-serving statements were also made in documents and otherwise during the period of the state's seizure. For example, Mr. Groner on May 1, 1950, apparently on his own initiative and without consulting Julian, prepared and posted a bulletin in which it was stated: "Kansas City Public Service Company is no longer engaged in the operation of the transit system, and same is being operated by the State of Missouri without liability or responsibility on the part of said company during the period of State operation." The bulletin also stated that "The officers, officials and employees of the company have become employees of and are working for the State of Missouri." Other such statements were made with respect to the liability for Workmen's Compensation payments and in presenting an application for an increase in fares before the Missouri Public Service Commission. These are typical of statements by transit company executives at various times during the period in question. There is no showing that the plaintiff is connected in any way with these statements, and objection was duly made at the trial. Such statements are obviously self-serving. They are not binding on the plaintiff and will not be considered of any evidentiary value in determining the issues in this case. Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052, 1059. Likewise, it binds no one that Julian considered the seizure to be a "technical" one. The statements of Mr. Groner and Mr. Julian might be of some significance if offered in connection with a controversy between the state and the transit company, but they can have no possible competency or relevancy with respect to plaintiff's claim.

Julian was, at the time in question, the chairman of the State Board of Mediation duly appointed pursuant to § 295.030. He was also serving as the agent or representative of the state through whom the governor exercised the power and authority [492] granted in § 295.180. Since the capacity in which he was serving was fully disclosed and acknowledged, it is not contended that he incurred any personal obligation or liability. When we refer to Julian he will be deemed to be acting in his capacity as agent or representative of the state.

In order for the state to acquire the status of employer with respect to the operating personnel of the utility, there must be express legislation so providing or the relation must come into existence as the result of contract or result from the application of common law principles to the facts in the case.

Since the statute does not expressly so provide, the relation of employer and employee between the state and the operating personnel of the utility did not arise by operation of law. In this instance we use the term "operation of law" to express the manner in which rights, and sometimes liabilities, devolve upon a person or persons by the application to the particular situation of express statutory provisions without any act of the party or parties. Black's Law Dictionary, 4th Ed., Operation of Law.

Merely invoking the provisions of the King-Thompson Act by the issuance of the governor's proclamation and Executive Order No. 1 without more, did not have the legal effect of converting the operating employees of the transit company into state employees. Such intent and purpose would have to be clearly expressed. The New Jersey statute for dealing with labor disputes in public utilities is similar to our own. However, it expressly provides that "during the continuance of such possession the relationship between the government of the State of New Jersey and the persons employed at such public utility, shall be that of employer and employee." NJSA 34:13B-19.

The General Assembly has the power to impose the status by express legislative enactment. Thus our Workmen's Compensation Act specifically creates the status of "statutory" employer and employee. V.A.M.S., § 287.040; Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. 280, 234 S.W.2d 563, 567; Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, 334; Baker v. Iowa-Missouri Walnut Log Co., Mo. App., 270 S.W.2d 73, 75; Rucker v. Blanke Baer Extract Preserving Co., Mo. App., 162 S.W.2d 345, 346.

The defendant transit company has cited a number of cases which arose under the World War I Railroad Seizure Act, in support of its contention that "taking possession" in and of itself relieves the transit company of liability. These authorities are not helpful in the present situation because of the difference in statutory provisions and executive orders. This distinction is made apparent in the case of Mo. Pac. R. Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, where, by the express provisions of the Federal Act, the new managers were required to completely sever their relations with the railroad companies, the employees were controlled by the federal administrator and not by the company, a remedy was provided in lieu of the carrier's liability and the government got the profits or was charged with the loss resulting from operations.

We will not imply from the statute an intention to make the utility personnel state employees by legislative edict unless such intent is clearly expressed. See State ex rel. Buder v. Hackmann, 305 Mo. 342, 265 S.W. 532, 534, wherein a statutory provision for payment of the necessary expenses of the assessor and his deputies was held to "fall far short of constituting clear and satisfactory authority for the payment by the state of clerk hire for assessors." The act not only fails to provide expressly and with clarity that the operating personnel of a utility shall, by operation of law, become state employees, but also wholly fails to make any provision fairly susceptible of such a construction.

The proclamation and Executive Order No. 1 made no provision with regard to the use or operation of the utility property. [493] It is from Executive Order No. II, Julian's instructions to Groner, and the activities of Julian and Groner thereafter that we must determine who was legally liable for torts resulting from the operations of the utility at the time plaintiff claims to have been injured.

By Executive Order No. II Julian was authorized to take possession of the utility property or such parts thereof as might be necessary "to insure that said utility above mentioned is effectively operated in the interest of the people of this state." By § 2 of the order he was authorized "to operate and arrange for the operation" of the utility. By paragraph 3 Julian "is authorized to select and hire such employees and agents as may be necessary and suitable to carry out" the provisions of the order. By § 5 Julian in his discretion was authorized to permit "the management of the above public utility to continue its managerial functions to the extent consistent with the" purposes of the order.

In transmitting the proclamation and executive orders to Mr. Groner, president of Kansas City Public Service Company, Julian specifically stated that he proposed "to continue the operation of the utility under the present management" and that Mr. Groner "will have full charge of said utility and all officers and employees will continue under the terms and conditions of employment at the time possession thereof was seized." Other than contacting Mr. Groner as stated, there is nothing in the record tending to show that Julian undertook to hire or take over the employment of any of the operating personnel of the utility. It is apparent from an examination of the proclamation and the executive orders in their entirety that Julian did not use to the fullest extent the powers granted him which we will assume without deciding were valid grants of authority.

We are presently interested in determining whether Julian entered into any hiring or contract of employment with the operating personnel of the utility on behalf of the state. State employment, while it must be authorized by law, generally has its basis in contract, express or implied, the same as any other hiring. 67 C.J.S. 114, Officers, § 5(4) states that "* * * an employment, although it may be created by law, usually arises out of a contract between the government and the employee; * * *."

This court has adopted the definitions of master and servant found in § 2, Restatement of the Law of Agency. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 765; Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557, 564. Section 2 of the Restatement defines a master as follows: "A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service." A servant is "a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master." The record is devoid of any evidence that Julian controlled or had the right to control the physical conduct of the operating employees of the utility.

None of the utility employees were paid by the state. This is a strong factor indicating that they were not state employees. Williams v. Gideon-Anderson Lumber Co., Mo. App., 224 S.W. 51, 53. In 81 C.J.S. 973, States, § 53, with reference to state employees, it is stated: "Payment of particular persons by the state is a very strong circumstance showing that they are state employees, and it has been held that one becomes a civil servant or employee only when he furnishes his services or labor for compensation directly paid to him by the state. * * * An independent contractor, working for the state, has been held not `an employee of the state.'" Under the evidence, we must hold that there was no contract of employment, either express or implied, between Julian on behalf of the state and the operating personnel of the utility.

The question then arises whether the state, through its representative, Julian, [494] exercised such control over the physical operation of the utility as to impose a liability for the acts of the operating personnel of the utility under principles of common law.

Mr. Julian testified that he did not participate in the management of the company and had no intention of doing so; that all of his instructions were given to Mr. Groner in two letters, one written at the time he delivered the proclamation and executive orders, and the other written in connection with the payment of Workmen's Compensation claims; nor was there any showing that Mr. Julian actively participated in the management of the utility. Apparently the only time Julian was consulted was when the transit company was seeking something for its own advantage. On these occasions Groner and the other executives must be held to be acting in their capacity as corporate officials and not as representatives of the state.

The "plant, equipment or facility" which the statute authorized the governor to take from the possession of the utility was its physical property. Tucker v. St. Louis-San Francisco R. Co., 298 Mo. 51, 250 S.W. 390; Canary Taxicab Co. v. Terminal Ry. Assn. of St. Louis, 316 Mo. 709, 294 S.W. 88. The act did not purport to authorize the governor to command the services of the personnel of the utility, whether it be the president of the company or the operator of one of its busses.

The governor's Executive Order No. II was not a mandate for Julian to operate the property personally, and the evidence shows that he did not do so. Paragraph 5 of Executive Order No. II authorized Julian to permit the existing management to continue its functions, and his letter of April 29, 1950 shows that this is what he did. The management of the transit company continued to act as a unit and Julian did not disturb its employment relations.

Whether the company established a relation of independent contractor with the state is not necessary for decision in this case. However, the relation is clearly akin to it. In § 2, Restatement of the Law of Agency, an independent contractor is defined as "A person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Was the transit company subject to Julian's right to control with respect to its "physical conduct in the performance of the undertaking"? We do not think so on the facts of this case.

The briefs in this case discuss at great length the kind and extent or degree of possession taken by the state pursuant to the King-Thompson Act. Possession alone is not determinative of the issue of liability. Our inquiry is who was the master of the driver of the motorbus in question, and we need not determine precisely the kind or extent of the state's possession except as it affects our primary question. It is aptly stated in 73 C.J.S. 196, Property, § 14, "Both in common speech and in legal terminology, there is no word more ambiguous in its meaning than `possession' when considered in its relation to property."

Actual possession, or, as it is sometimes called, pedis possessio, has been defined by the Missouri courts as "real" and "visible" and as "`actual and continuous occupancy or exercise of full dominion.'" Jackson v. Rothschild, Mo. App., 99 S.W.2d 859, 861; Bradbury Marble Co. v. Laclede Gaslight Co., 128 Mo. App. 96, 106 S.W. 594, 599; Crain v. Peterman, 200 Mo. 295, 98 S.W. 600. The possession which Julian assumed was largely declaratory in nature. It was proclaimed by the governor and again by Julian in his letter to Mr. Groner, but actually nothing was done about it. No one was dispossessed and everyone stayed on his accustomed job. The state's possession was not real or visible, nor was the transit company ousted from its "actual and continuous occupancy or exercise of full dominion" over its premises. Not only did the company retain the occupancy of its physical property, but the revenue was received and retained as it had always been and was used for operating expenses, improvements, [495] relocating tracks, and even the purchase of additional equipment to the extent of between $300,000 and $400,000.

It is apparent from the record, and we so hold, that possession of Julian and the state was not intended to be and was not in fact actual possession. Insofar as the possession needs to be identified by name, it might be called a legal possession or a nominal and technical possession. It was more or less the assertion of the right to possession which did not, in this case, ripen into exclusive or actual possession.

That the right of use and possession is not conclusive as to liability is shown by the case of Bibb's Adm'r. v. Norfolk W.R. Co., 87 Va. 711, 14 S.E. 163. In this case the railroad company contracted for repairs to one of its bridges. The company reserved the right to continue to use the bridge and to inspect the work as it proceeded. While so using the bridge, an accident occurred through no active negligence of the company, and an employee of the bridge contractor was injured. It was held that this was not such possession or control as to impose liability upon the railroad company. The mere retention by the one in possession of the right to inspect the work of an independent contractor as it progresses for the purpose of determining whether it is completed in accordance with the contract does not create the relation of master and servant with those engaged in the work. Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16, 20-21; Williamson v. Southwestern Bell Tel. Co., Mo., 265 S.W.2d 354, 359.

It cannot be said that the state retained any right to control with respect to the "physical conduct in the performance of the undertaking." Julian designated the "present management" to continue the operation of the utility. Although his contacts were with the president of the company, it would be straining the situation unduly to say that Groner was "the management." Obviously the transit company remained in control as the managers of the utility business. So far as the record shows, Julian did not even retain control of policymaking matters. He was not consulted with respect to improvements made or new equipment purchased, some of which was quite substantial.

Where the statute does not expressly so provide and participation in operations has been limited as here, the courts have held that government did not incur liability by asserting the right to seize property of the utility and to have "nominal" or "technical" possession. In Marion Rye Valley Ry. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 255, the railway company made its claim for the alleged taking of possession and use of the railroad by the United States under the Federal Control Act. The court held that even if there was a technical taking that the company had remained in actual possession of its property and there could be no recovery.

In the case of Stanton v. Ruthbell Coal Co., 127 W. Va. 685, 34 S.E.2d 257, the action was for the wrongful death of a coal miner. The defendant coal company asserted that the government of the United States under an executive order issued by the President of the United States was, on August 27, 1943, decedent's employer and in complete possession and control of the mine and its operation and therefore defendant was under no liability whatsoever. The President's order provided that the secretary of the interior shall take over such control of coal mines as he may deem necessary to accomplish the maintenance of full production of coal for the effective prosecution of the war. The Supreme Court of Appeals of West Virginia held that the regulations "clearly indicate that, except and only if necessary to effect the primary object of Government control, such control would be nominal." The court pointed out that the control of the mines was wholly unlike the control of the railroads, since in the latter case the director general had been made liable for damages resulting from the negligent operation [496] of the railroads and the carriers themselves had been relieved. A petition for review by the Supreme Court of the United States on certiorari was denied ( 326 U.S. 740, 66 S.Ct. 53). The Stanton case is quite similar on the essential facts and the applicable principles to the case at bar. In the case of State v. Traffic Tel. Workers Fed., 142 N.J. Eq. 792, 61 A.2d 570, 573, the seizure was referred to as a "protective custodianship" in a situation where the seizure was comparable to the one in the case at bar.

Under the facts of this case the state did not incur any liability to persons injured as a result of operations during the seizure of the utility, and it follows that Julian's motion to dismiss was properly ruled.

Our next subject of inquiry is whether the transit company remained liable for the torts of the utility personnel after April 29, 1950, as it had been before. None of the state's funds were used in the operation of the utility between May 1 and December 11, 1950. Mr. Julian did not seize any of the company's money nor its bank account; nor did he collect any of the current income during this period or sign any checks. The payment of the operating employees out of funds which belonged to the company, or which were treated as its own, was a circumstance tending to prove the utility personnel were employees of the company during this period of time. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053, 1058. After eliminating self-serving declarations and conclusions from the record, there is no competent evidence that the employer-employee relationship between the transit company and its employees was severed on April 29, 1950, and we hold that the relation continued to exist during the period in question and that at the time of plaintiff's alleged injury the transit company was the employer and master of the operator of the motorbus in question.

The defendant company would also be liable on the theory of ratification for tortious acts of the operating personnel of the utility. The defendant company received and retained the revenue derived from the carriage of passengers during the period in question. Although Mr. Groner mentioned an accounting, it was never made. The company's acceptance and retention of the fares of passengers under the circumstances amounts to a ratification that establishes the relationship of master and servant in such a way and in such a character that the company must be held responsible for any negligence of the operator of the motorbus. In the case of Dempsey v. Chambers, 154 Mass. 330, 28 N.E. 279, the plaintiff ordered coal from the defendant. The coal was delivered by one who was not defendant's servant, and in doing so he broke a plate glass window of the plaintiff. After the delivery of the coal, and with knowledge that the person who delivered the coal had broken the window, the defendant demanded that the plaintiff pay for the coal. It was held that there was a ratification which made the deliverer of the coal the agent and servant of the defendant for the delivery of the coal, and that the defendant became responsible for his negligence in that regard. The opinion by Judge Oliver Wendell Holmes, Jr. stated, 28 N.E. l.c. 280, 281:

"We have found hardly anything in the books dealing with the precise case, but we are of opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley, Torts, 128, 129. The ratification goes to the relation, and establishes it ab initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not commanded, and as he may be for those which he has expressly forbidden."

[497] The case of Lamb v. Davidson, 69 Mo. App. 107, recognized the principle of ratification. In that case the tortious act consisted of the detention by defendant's daughter and nephew of plaintiff's cattle which had strayed into defendant's pasture. The original detention had been without defendant's knowledge. The opinion states, l.c. 114, "* * * if they were not acting for him, nor as his servants, he after being notified by Lamb of what had been done, ratified the act (of which there is some evidence in the record) he is responsible."

The principle of ratification under these circumstances is well established in common law. In 35 Am. Jur. 997, Master and Servant, § 563, it is stated: "Where one assumes without authority to act as the agent of another, the latter's ratification of the transaction relates back and establishes the relation of employer and employee with all of its incidents including the employer's liability for the employee's wrongful acts and omissions."

Whether there were net profits during the period the record does not show, but it does not matter. The company did receive and retain the income derived from the operation of the utility during the period in question, and that is sufficient to support a ratification.

Neither of the defendants have questioned the constitutionality of the King-Thompson Act. The amici curiae have no right to question the act's constitutionality although they have undertaken to do so. Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65. The plaintiff first raised the question of the act's constitutionality in her reply. This has been held too late. Nemours v. City of Clayton, 351 Mo. 317, 172 S.W.2d 937. Even though the question were timely raised by plaintiff, it would not be necessary to rule the constitutional questions because their determination is not essential to the proper decision of the case presented. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; Kansas City v. Tiernan, 356 Mo. 138, 202 S.W.2d 20.

For the reasons given, the judgment of the trial court dismissing the case as to the defendant Vance Julian, Chairman, Missouri State Board of Mediation, is affirmed.

The judgment dismissing the defendant Kansas City Public Service Company, a Corporation, is reversed and the cause is remanded.

Leedy, C.J., Dalton, Hollingsworth, Hyde, Westhues, JJ., and Stone, Special Judge, concur; Eager, J., not sitting.