an<;e :'fith,>positive rulElS law." Where an action is brought for thed,irect purpose ofestablishing tit1,eto rea1ty:, and where the question of, ownership of the title is the jssue in the case, and the judgment rendered in the cause will become record evidence of the title, then it may.well be that the best ,evidence of title should be adduced. What this best evidence may be depends upon the facts of each case. In some cases it may consist of long adverse possession, provable only by parol. The rules, of evidence applicable to issues framed to settle and adjudit'.aie the .titkto reaIty are not necessarily applicable to cases of the kind now unqer consideration. Under the issues actually presented to the courtandjuryin this,c8use,aIl that was necessary for the plaintiffs to show waslJi'prima facie right of ownership of the property destroyed, audthie could:be done 'by .parol testimony. If the company or any had made isslle that:, the plaintiffs below we,re not the 9f ;thepro,Perty, anp were not therefore antithid to, damhad intro.cluced evidence tendingto show titlein:8Qwe'Qther party, it might then have become necessary for the plaintiffs ' to,' have submitted-, other evidence in support of their right. done, they could ,rest upon the prima facie evidence of title by proqf ofpqssession of at the time of its It was certainly proper to accompany the evidence, showof the proPerty in plaintiffs, with testimony showing ing ,that plaintiffs claimed to be the owners of the property, because such ,testimony would show that the possession was held under claim of title, out a clear prima facie case upon this question, and this ':was the, elfect of the testimony excepted to. Finding. no error in the :record,it follows that the judgment must be and is affirmed, at cost of ' " . ' 'plaintiff iD' error.
WINSOR C04.L CO. 'l1. CHICAGO
& A. R. Co.
(circuit Oourt,W. D. Missouri, W. D. November 7, 1892.)
REGl1LATION-UNBEASONABLE RA;TES-RAILBOAD 0014"
, Sections: 1,10, and 11 of the act of the legislature, (Laws Mo. 1887, p. 15, Ex. · ,Sess.,) standing alolle, would seem to entitle thf'l: shipper to recover triple damages 'from tne common carrier for exacting unreasonable and unjust freight charges, when\lye:t<''!1 jury deem the rate unooasoo1able or,uJijust; but looking at the whole in; connection with antecedent legislation, inpuri materia, it is held that the triple liability does not arise where the carrier liae not charged a rate in excess of the maximum tate established by the railroad commissioners, or the maxImum rate permitted by the statute in the absence of any action thereon by the ,commissioners., ' 2. , The' tig4t of action at common law in favor of the sPipper for extortionate charges was sUPl1rseded by the remedies Provided by the:stat]1te. The act 'of 1887 declares that "it shall be the duty of the railroad Commissioners to$ee that $chedules of rates adopted ·bJ common carriers are reasonable and 'just, and they may, upon complaint of any pe'r'son, or upon their own motion with: out complaint, J:!lake inquiry from time to time, and determine whether the sched·
8. -SAME-CONSTRUCTION OF STATUTE.
WINSOR COAL CO. 'D; CHttlAGO
Hew" that the.word "may" should be construed.
,. SAME-LIMITATIONS OF ACTIONs-DEMURRER.
ule of rates prepared and adopted by any common carrier is reasocable and Just. " all "shall," for the statute IS evidently intended to be mandatory. .
Under the statute, causes of action which arose more than three years before the institution of the suit are barred, and where this fact appears on the face of the petition it may be taken advantage of on demurrer. Henoch v. Chaney,61 Mo. 129, and BUss v. PrItchard, 67 Mo. 181, followed.
At Law. Action by the Winsor Coal Company against the Chicago & Alton Railroad Company to recover triple damages for charging an al· leged unreasonable rate on certain freight. Heard on demurrer to the petition. Demurrer sustained. Alexander Graves, for plaintiff. Wash. Adams, for defendant.
PHILIPS, Difltrict Judge. There are various counts in the petition. The substantive charge in each is that the defendant, a common carrier, charged the plaintiff unreasonable and unjust rates on car loads of coal shipped from Higginsville to Kansas City, Mo.; that 45 cents per ton was the just and reasonable rate for sucbservice,whereas defendant ex· acted more than 65 cents per ton. Judgment is prayed for three times the amount of the excess, as by statute in such case made and provided. To this petition defendant interposes a demurrer. It demurs to the first 48 counts for the reason that the causes of action are barred by the statute of limitations, and to all of the counts on the ground that they do not state facts sufficient to constitute a cause ofaction. The question broadly raised and argued by both counsel is whether or not a railroad company which has not exacted a charge in excess of the maximum rate fixed by the state is nevertheless liable to an action for triple damages, as for extortion, as prescribed in the act of the legislature adopted by the extra session of 1887, p. 15. The plaintiff contends that this statute gives to the shipper a right of action for an unreasonable charge made by the carrier, whether or not the sum charged be more or less than the maximum prescribed by the railroad commissioners; while the defendant contends that no charge made by it can be unlawful, subject to the statutory pains and penalties, when the charge made is within the limits prescribed by the state's authority. By the first section of this act all railways in the state are declared to be public highways and common carriers; and all charges made for services in the transportation of freight shall.be reasonable and just; "and all unreasonable and unjust charges for· such services are prohibited, and declared unlawful." By sections 10 and 11 a right of action is given against such carrier for doing an aet or thing in said act prohibited, or declared to be unlawful, or omitting to do anything enjoined thereby, and giving to the person injured three times the amount of damages sustained, by suit in any circuit court of any count)' or city where the road is opBut these are not all.the provisions of this statute, and we must look to the enactment as an entirety to discover its real purport and proper construction. As is said in In re Bomino's Estate, 83 Mo. 441:
" ea.noDsof intfl'l1lr.etation of statutes are the following: a view of' the whole and every part of a statutet,aken' and When the it will 'prevail over the of the 'terms:, The occaSion, and necessity oithe law. the misehiefifalt,i,and the object,and remedy iII view, are to be When the expression in the statute is special or particular, but the 'reason general, the special shall be deemed general. and the reason and intention of the lawstr.iclir:letter of the law when the latter would lead to giver anq I)l>surdity, (1 Kep.t, .Comm.461. 462;) .It IS doubtflll wbjlther a thing falls withm the terms used ihah 'i't Is proper to resort to other statutes to ascertain the intention of the legislature in the enactment of the general statute." By the expressed declaration of the statute in the concluding paragraph, "this act is not intended to repeal any law now in force, unless in direct conflict thorewitb, 'but is ,intended to be supplemental to such laws.'" · of the state the legislature had underUnder the then existing taken the task of regulliting freight ratesof.railroads. It had ,prescribad a maximum charge for tmeclass,of property in question"and made various pro\'isionsagainst extortionate charges, unjust discriminations, and '!It had ,created the office of railroad commissioners, and invested them with various powers of supervision over the railroads of thastate.: of the statute was and is to prevent ex,tortioriate charges, unjust discriminations, combinations,and favoritism. The railroad commissioners were empowered to reduce the rates of rail.. roads, either in geneml 'or 'special classes, whenever, in their judgment, it eould be:equitably done, and the railroad companies were bound ,by the,deeisiori ,of the commissioners; "and every violation by any com-pany chal1ging :aglleater or 'higher ,rate'" was declared a misdemeanor, smi,on conviction, should pay ,a fine of not less ,than $20 nor more than $200 foreaoh land everyofi'erisej and: the injured party should have a right of action 'against the carrier before any court of competent jurisdiction for the recovery of three' times the amount taken or demanded in excess of the rate8,prescribed. Rev.. St. Mo. 1889, §§ 2575, 2676,2679, '2682, 2684, 268(1,; "By the: act of -188:7 the legislature simply sought, by, additional powers oonferred on the railroad commissioners, and re'Strictions,obligations, and liabilities imposed upon the common carrier, tdstilLfurtheraccomplish the pOlicy of. the stntein the rate oHreight charges; The first section 'opens with the declaration of what w8salreadyanexisting common-law axiom, 'and reaffirmed in section 14, art. 12, of the: state c0nstitutioll, that such roads are public highwaysandcomm6ri carriers; and therefore they are subject to the legislat.ivepowertointerdict ;unjust and: unreasonable charges for the performance oftbeir duty to the,public. , Among its saJient"an,d .more'importft:nt provisiorisare the following: Such common .carrier shall· neither.direetly:hor indirectly, by any special rate, rebate, dra.wback, or any device, take' from one citizen less than from another for alike service rendered; nor, chiuge more for transport.
CHICAGO & A. R. CO.
inga' car offreight then it charge;, at the same time for several cars of like class, etc.; nor give advantages to any person or corporation iIi. the transportation of goods over any other person or corporation. It shall not receive a greater compensation in the aggregate for transportation of property, etc., over a shorter than a longer distance. It is prohibited from pooling of freights. It is required to establish and publish its schedule of rates, which shall be "reasonable and just, and shall not in any case exceed the maximum rates which are or may hereafter be established by law." Copies of such schedules shall be filed with the railroad ,commissioners, and thenceforth such schedules, not being in excess oBhe statutory maximum rates, shall be deemed the established rates, until the same are changed as in this act provided. It shall give 10 days' notice of any proposed change, except when the rates are to be reduced, in which latter event notice shall be publicly posted, etc. "When any sucb common carrier shall have established and published its rates in cOmpliance with the provision of this act. the same, not being in excess of any statutory maximum rates now or that may· be hereafter in force, it shall be unlawful for any such common carrier to charge, collect, or reoeive a greater or less compensation, etc., thands specified i,n such published schedule. * * * ltshallbe the duty of the.raUroad commissioners to see that all schedules of rates adopted by comnlon carriers are reasonable and just; and they may, upon complaint of any person, or upon their own motion without complaint, make:inquiry from time to time, and determine whether the schedule of rates,prepared and adopted by any such common carrier is reasonable andjnst/r The word "may" in the last clause of the above quotation should be construed to mean "shall," on the settled rule of the con" struction of statutes that, where rights of third persons are involved, or the public good requires it, such term is to be regarded as mandatory. Leavenworth &: D.H. R. OJ. v. Platte OJ., 42 Mo. 171; Steinea v. Franklin OJ., 48 Mo. 167. Other sections of the act make this, still clearer. By section 8 it is provided that, if any such common carrier 9hall neglect or refuse for 30 days to file a published schedule of rates, it shall be the duty of the railroad commissioners to make and print,"a schedule of reasonable rates for such common carrier, and deliver copies of sRmeta such carrier. * ** A copy of such schedules so made by the secretary of such board, shall, in proceedby said board, ings wherein is involved the reasonableness and justness of the charges and rates ofsuch commissioners be primajacie evidence that rates therein fixed are reasonable and just." And again, section 13 makes it the duty of the railroad commissioners" to see that the provisions of this act are enforced," and any person having an interest may make complaint to Buch commissioners that the rates established by the carrier are umeaSonabIe, or that any of the provisions of the act are being violated.. 'l'hereupon the commissioners are to investigate the facts, and, if found against the carrier, the commissioners shall order a correction of the abuse; and they may. make an award of damages to the injured party. These orders may be ·enforced by the attorney general or proper county attorney,
through .the courts, and in such trials the finding of the commissioners shall be prima facie evidence, etc. .Section 16 provides in detail for the hearing of complaints about unreasonable rates established 'or practiced by the carrier; and, if the commissioners are of the opinion that the rates should be changed or modified, they shall fix "and determine what would be reasonable and just charges orrates,"and deliver a copy of its finding to both complainant and carrier. "The rates of charges so found and ascertained by said order, * * certified," etc. j "shall, in any and all" proceedings wherein is involved. the' reasonableness .and justness of the rates and charges by such common carrier, be prima facie evidence thaUhe same are reasonable and just." Further provisions are made for application to the court for manda:tory injunctions to compel the due performance of the dtities imposed by the act uponsnch common carriers" and to enforce· obedience to, the orders of the railroad commissioners'.: : ;' Throughout the entire act it is clear that it was the legislative mind to upon the chosen agents of the state-the railroad duty of snpervising.aDdregulating, the rates charged by suchdeartiers, and to ascertain and ,declare, from time to time, as the changirlg conditions of trade and commerce might suggest, what, as between shipper and carrier, is a reasonableandjust rate. of 'compensation, absence or any affirmative 'action by the commissioners. the legislature declares a maximum rate,nnd the carrier is to make and keepplilblie a schedule within this, maximu m. The railroad commissionebtmayreviseit. if deemed right and justtb do so; nndthe rates thus to be observed by the carrier until changed conformably to the ,statute.· The statute expressly,declares it to be unlawful for the carrier, to exact a greater oJ! less rate' than that so scheduled. In the absenee,of any affirmative action by the commissioners, the intendment of law'arising from ,the' legal presumption that public officers perform their duties should be that no eompJainthad arisen of unjust charges, or that ·thecommissioners, who. are presumed to be in possession of the schedule adopted by the carrier, deemed the maximum fixed by the carrie.rand the legislature to be reasonable and just. Does it stand to reason that, after the legislature had provided all these agencies and instrumentalities for regulating the freight rates, and ascertaining and determining, pro bono publico, what isjustand reasonable. and making that ascertainment prima facie evidence of its correctness in judicial controversies between shipper and carrier, it was contemplated that any shipper could thereafter be at liberty to disregard this lawfully established rate, and have its reasonableness and justness submitted to the arbitrament of a jury of the country? Can it be possible that, after the legislature has thus proVided in detail a scheme for the establishmentof. !reasonable rates,;whichshaH be uniform to all the people, it intended, by the general .terms of sections 1, 10, and 11. to authorize any malcontent to. go to'8 jury to fix for him another rate? What in the judgment of one jury 'in one locality would be an unreasonable charge might in the opinion of another jury in another locality be
WINSOR COAL CO. V. CHICAGO & A. R. CO.
quite reasonable. With the known capriciousness of jury verdicts, influenced often by individual peculiarities, mental habits, the quantum and quality of the evidence in the particular case, how would it be possible to carry out the legislative intent to establish and maintain a uniform rate of charges? Would not the diversity of conclusions reached by different juries. between different litigants in and of itself bring about discriminations and inequality? Under such a conEttruction of this statute as contended for by plaintiff it is not apparent how any railroad. company could safely do business in the state. Its agents could never know when they were safe in any charge by them made. After a schedule of rates has been approved and published, the statute makes it unlawful for the carrier to charge less than the scheduled rate, under the pains and penalties prescribed in the act; and yet, under plaintiff's theory, the common carrier might be liable for the penalty of triple damages because it did not charge a lesser rate. Notwithstanding the phraseology of this statute may be, in somerespects, inapt or ambiguous, yet it is the duty of the court to so construe the whole statute as to avoid, if possible, conflicts between different parts, and, by keeping in view the intention and design of the lawmaking power, to escape absurdities, and reconcile contradirtions more apparent.ulan real. It is the common carrier against which this legislation is' directed. It is its acts, its delinquencies, which are sought to be guarded against and corrected. As against it, in any judicial controversy between it and the shipper, or between it and the state, respecting its freight charges, the schedule of rates limited by the state or declared by the commissioners shall, in favor of the shipper or the public, be taken as prima facie just and accurate; and the railroad company must assume the laboring oar to overcome this presumption. The statute simply reserves the right to the carrier to go to the courts under this disadvantage to have the findings of the commissioners re\'iewed. To the shipper the act gives every reasonable privilege and advantage. He can g() to. the board of commissioners with his complaint, and, without cost to himself, have an investigation by them of his grievances, with the meatis, of enforcing the conclusions of the commissioners; or he may go, as has this plaintiff, directly to the courts, and have a trial" in due and ancient form," and show, if he can, that the rate charged him is in excess of the limit fixed by the statute and the commissioners. When he does this, he stands in court with a prima facie case of unreasonable exaction madeby the carrier. Statutes of this character are not peculiar to this state. Similar legislation is to be found in other states, Bueh as Nebraska, Iowa, Illinois, Georgia, and perhaps others. While these statutes Ulay differ somewhat in detail, the general trend, scheme, and policy are the same. The courts of those states, in construing their statutes in the particular. under discussion, hold that the carrier may charge the maximum rate fixed by the statute, and a liability to the penal action never arises until the carrier passes in his charges this dead line. This for the reason, which stands upon a granite foundation of public justice and v.52F.no.8-46
; FEDERAL REPORTER,
act Of thecitiwncan be uuluwfuI whiohthelaw permits. A etatute which would attempt to declare a diffeItent rule would not on1ybe a legal solecism, ,but would commit an act of felo de ae. SeeRailmadOo.",. Dey, (Iowaj) t8 N. W. Rep. 98; Railway Co. v. Dey, 35 Fed. ,IWp.873,:",876; State v.Pfemont, etc."R.:Oo.,,(Neb.) 35 N. W. Rep. 118j and 36 N.,W. Rep. 305; Sorrell v. Railroa,d 00.,75 Ga. 509; Ohicago,B; &- Q. R. ,Co. v. PeQ]Jle, 77 Ill. 443. A right of action in fav;or of the shipper, it may be conceded, existed at common law for extortionate charges, but the statute has superseded remedy. Young v. Railroad 00., infra; Ror. R. R. 1373, the and notes. ' Tmeplaintiff having no ground of action :for an unreasonable and unjust charge against the carrier, exceptwhere:the carrier has transcended the.Iimit prescribed by the state's agentsi the :petition should allege the facts Decessary to bring the case withintbeoperation of the statute. Kennayde v. Railroad 00., 45 Mo. 258; King v. Dickenson, 1 Saund. 130,',Bayard v. Smith, 17 88. This is notdone,and the, is, sustained,. " It appears optheJaceoUhe petition that as to the first 45 oounts the causes of:action arose more than thtee years the institution oLthe suit., Under the. statute. these causes or action are barred. This may betaken advantage of by demurrer. Henoch v. 0htLne:y, 61 Mo. 129; BlisIJiv.: Prichard,:67 Mo. 181; section 3231, Rev. St. 1879; Young "i. RailrOQ,d 00., 33 Mo. App. 509.
(OWcuitCourt, W.'D. MisBouri" W.:D.
, 1'" '
.... Laws Mo. 1891, p. 170, § 2, 'provldlls that when the validity lit any pledge or mortgage of personal indebtedness is drawn in question prOOf that . the Party holding qr ,exacted shall render lien invalid. Beld, that thIs mere1yobre8cribed an additIonal penalty for an act which before unlawfdl.:and tMrefol'eit,invalidated a chattel mortgage, made before it went into. ei!ect, when usurY on the indebtednell8 afterwards, and 'thBt!lluoh a oonstruotion was' nb't' glVibg the statute a ):etroactive'operation. In au ,lIoOUon of replevin to, recov.er 't>ersonalpropertfbeld under a ,mortgage, wbichbas been invalidated under iiMa act by the exactIon, of usury, the plaintii! can only recover the specific cbattel, or its equivalent in money, where he is in a position to so ,elect; and U\ljudlililJleutin aBBumpgtt or for tbe mortgage debt can be rendered therein, nor oan aiiy'amrmative relief be granted to'defendant. Ham, ilton v. Clark, 25 Mo. App.':!l28,'1011owed. ' "'i , ' " '
2;' USURY-CUA'rTIilL MORTGAGIli-'-B.UPLIl:VIN.
At Law. Action, of replevin, brought byComeliaM:ackey against Moses M. Holmes to recover persona,! property held under a chattel mortgage. On motions to strike out the two counts of the answer. Deniell as to the first count, and sustainedr;a8' to the second. Scarrit &- Scar.rit, for plaintiff. Brumback &: Bnvmback and A. F. Evana, ,for defendant.