author: BOND, J. BLAIR, J.

text:
    THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. U. G. CRANDALL, Plaintiff in Error.
    In Banc,
    October 21, 1916.
    1. POLICE COMMISSIONER.:. Removal by Governor: Hearing. Under the Constitution requiring the Governor “to take care that the laws are faithfully executed,” and the statute requiring him to appoint a board of police commissioners of the city of St. Joseph and declaring that “they shall, except as hereinafter provided, hold their offices for three years” and “for official misconduct any of said commissioners may be removed by the Governor, upon his being fully satisfied that the commissioner or commissioners charged is or are guilty of the alleged official misconduct,” the Governor, without a formal charge and without the hearing of witnesses, may remove any such police commissioner, upon being fully satisfied of his official misconduct.

      Held, by BLAIR, J., concurring, that the statute in question expressly provides neither a hearing nor a removal at pleasure; but the rule, sometimes approved, that unless removal at pleasure is expressly provided notice and hearing will be implied, cannot be invoked in case there arises out of the statute, as here, a necessary implication that notice and hearing are not required. And as the statute empowers the Governor to remove in case he is “fully satisfied” of the commissioner’s official misconduct, a notice or hearing is not required in order that the Governor may reach the conclusion that he is fully satisfied.

      2. -: Statutory Construction. If the statute expressly authorizes the Governor to remove a police officer at will, no question of his power to do so can arise. But where the statute does not, in terms or by necessary implication, grant discretionary power of removal, recourse must be had to all sources of statutory interpretation and construction that will enable the court to determine the exact nature of the power given in the particular case.
    3. -: -: Aided by other Provisions of Enabling Act. The statute in express terms tells the Governor to remove a police commissioner of St. Joseph upon being fully satisfied of his official misconduct; and the fact that it was meant to authorize an exercise of the power upon the contingency stated and without a formal hearing, is emphasized by the other words of the same statute which permit the commissioners to remove members of the police force only “for cause after a hearing by the board.”
    4. -: -: Conditional or Definite Term. A statute which says that police commissioners “shall, except as hereinafter provided, hold their offices for three years,” and then immediately proceeds to say that they may be removed by the Governor “upon his being fully satisfied” of their official misconduct, does not give a definite term to the appointee, but only a conditional term, whose duration depends on the exercise by the Governor of his power to remove.
    Error to Buchanan Circuit Court. — Hon. Nat M. Shelton, Judge.
    Affirmed.

      Luden J. Eastin, William Reiter and Vinton Pike for plaintiff in error.
    (1) The title and term of office of the commissioner are provided by Sec. 8770, R. S. 1909. The term is three years. He receives a salary of $500 per annum. If not property in a precise sense it is a right that is protected against “the whimsical sport of chance, caprice or of intermeddlers, or of any form of illegal and unauthorized interference.” State ex rel. v. Shepherd, 192 Mo. 509. (2) The office is vacated if the incumbent accepts any office of public trust or emolument, or receives, knowingly, a nomination to an elective office without declining it within twenty days after the nomination. And the commissioner may he removed for official misconduct upon the Governor’s being fully satisfied that the commissioner charged is guilty of the alleged official misconduct. Sec. 8770, R. S. 1909. (3) The power of removal is conditional. There is the fixed and definite term, and the appointing power was without authority to remove but for the final clause of section 8770, and that power could be exercised only on the condition that the Governor Avas fully satisfied after notice to and hearing of the accused commissioner, upon charges made by others or preferred by himself specifying acts whereof the official misconduct consisted. Mechem, Public Officers, 455; Throop, Public Officers, 364; Cooley, Const. Lim. (6 Éd:), 134; Baggs Case, 11 Coke, 99; High, Extra. Leg. Rem. (2 Ed.), 69; 1 Dillon, Mun. Corp. (4 Ed.), sec. 250 et seq.; 29 Cyc. 1409; 19 Am. & Eng. Eney. Law, 562f, 562g; State ex rel. v. Maroney, 191 Mo. 531; State v. St. Louis, 90 Mo. 19; Edward v. Kirk-wood, 162 Mo. App. 581; State ex rel. v. Holtcamp, 245 Mo. 670; State ex rel. v. Moorhead, 256 Mo. 690; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Pol. Com., 14 Mo. App. 32; State ex rel. v. Brown, 57 Mo. App. 204; Gracie v. St. Louis, 213 Mo. 395; Hallgren v. Campbell, 85 Mich. 285; Coleman v. Glenn, 103 Ga. 461; Dullum v. Willson, 53 Mich. 392; Ter’y v. Aschenfeller, 12 Pac. 897; Page v. Hardin, 8 B. Mon.-672; Lease v. Freeborn, 52 Kan. 750; Todd v. Dunlap, 99 Ky. 461; Jacques v. Little, 51 Kan. 300; Field v. Com., 32 Pa. St. 478; Briggs v. McBride, 5 L. R. A. (Ore.) 115; State ex rel. v. Hewitt, 16 L. R. A. (S. Dak.) 413; State ex rel. v. Smith, 16 L. R. A. (Neb.) 791. (4) The Governor has only such powers as are delegated to him by or in accordance with the Constitution. That instrument is a limitation upon the powers of the General Assembly, but is a grant of power to the other departments. Cooley, Const. Lim. (4 Ed.), 138, 139 and 77-8. (5) The supreme executive power is vested in the Governor (Art. 5, sec. 4), but it is not defined by the Constitution. Field v. People, 2 Scam. 80. His duties are to “take care that the laws are distributed and faithfully executed,” and he is made a conservator of the peace.
      Id., sec. 6. If not otherwise provided by law, he- shall fill vacancies temporarily {Id., sec. 11), and with like exception shall commission all officers. Id., sec. 23. The power to appoint or elect officers is primarily in the people, and consequently the Governor has only such power in that regard as is delegated to him. Riley v. State, 141 Pac. 264; In re Dec. of Judges, 69 Atl. 555.

      John T. Barker, Attorney-General, and Kenneth C. Sears for defendant in error.
    Under Sec. 8770, R. S. 1909, the Governor may remove a police commissioner without notice or trial when fully satisfied that such commissioner is ór has been guilty of official misconduct. People v. Draper, 124 N. Y. Supp. 758; State ex rel. v. Burke, 8 "Wash. 412; Hartell v. Boismenue, 229 111. 474; O’D-owd v. Boston, 149 Mass. 433; People ex rel. v. "Whitlock, 92 N. Y. 191; State ex rel. v. "Williams, 6 S. D. 119; Ayres v. Hatch, 175 Mass. 489; Shurtleff v. United States, 118 U. S. 311; State v. McGarry, 21 "Wis. 502;' People v. "Welty, 75 111. App. 514; State ex rel. v. Grant, 14 "Wyo. 41; State ex rel. v. Cheetham, 19 "Wash. 330.
   BOND, J.

I. On the - day of August, 1916, the Lieutenant Governor, William R. Painter, being then vested with all the authority of the absent Governor, filed, in the office of the Secretary of State, an order removing U. G. Crandall from the office of Police Commissioner of the City of St. Joseph, setting forth in the order of removal, as his reason, that he was fully satisfied of the “official misconduct” of the deposed commissioner. * Prior to this amotion the Lieutenant Governor telegraphed the commissioner to resign and received no response. Upon the failure of the commissioner to yield his office, the Attorney-General filed an information in the nature of a quo warranto, praying for a judgment of ouster against him.

The circuit court awarded the judgment prayed, from which the defendants sued out a writ of error to this court. ’

II. The Board of Police Commissioners is a statutory-body lying in the appointment and removal of the Governor upon statutory conditions and for statutory reasons. It is charged with the preservation of peace, prevention of crime, the protection of the rights of person and property and the preservation of the health of the inhabitants of the cities of the State and to these ends is given full control of municipal policemen. [R. S. 1909, secs. 8772, 8773, 8774, 8778, 8779.] The tenure of office of the appointees to the board and the authority of the Governor to remove them is contained in certain portions of the statute providing for their qualification, to-wit: “And they shall, except as hereinafter provided, hold their offices for three years. . . . For official misconduct, any of said commissioners may be removed by the Governor of the State of Missouri, upon his being fully satisfied that the commissioner or commissioners charged is or are guilty of the -alleged official misconduct. ’ ’

The only question presented by this writ of error is whether or not this statutory power of removal is one resting, to the extent given, in the discretion of the Governor, or is only exercisable after formal and specific charges, a trial thereof giving an opportunity for the hearing of witnesses and evidence, and a finding of the guilt or innocence of the accused. In brief, whether a police commissioner can be removed by the Governor with or without a trial, provided the Governor is fully satisfied in his own mind of the official misconduct of such officer.

It is of the very essence of the duties of the Governor of the State, as the personal representative and head of the executive department, to provide by fitting agents for the enforcement of its laws, the security of the persons of its citizens and the protection of their property. No greater responsibility could be imposed under a free form of government than is involved in the performance of these duties; for unless its laws are respected and obeyed and tbe property and rights of its people preserved and upheld by its chief executive with all the power given to him under its Constitution and laws, the ends for which the State was organized by the people would cease to exist. Realizing the high responsibility and the correlative duties imposed thereby, the Legislature put in the hands of the Governor the power to maintain peace, enforce the law,- prevent crime and protect property by the appointment of boards of police commissioners, which are given power to create, control, regulate and remove the members of the police forces in the large .cities of the State. The statute «clothing the Governor with power to appoint this board of control, limits the tenure of office of its members (in the city of St. Joseph) to three years, “except” the Governor shall remove any such appointee upon being fully satisfied of his official misconduct. The Legislature in express terms gave the Governor full power and made it his duty, whenever he was fully satisfied of the “alleged official misconduct” of any police commissioner, to remove him instantly from office, irrespective of his otherwise possible term. The Legislature made a wholly different provision in dealing with the power of the police commissioners to remove members of the police force and permitted that to be exercised only “for cause after a hearing by the board.” [R. S. 1909, sec. 8773.] The Legislature exhibited great wisdom in thus restricting the power of amotion given to the subordinate board and thereby guarding against abuse or misuse of its functions, as might happen if the entire body of the police were subject to arbitrary removal; and, on the other hand, in freeing the hand of the Governor from any other restraint in the management and direction of the board of commissioners appointed by him, than his own judgment of their official misconduct formed to “his full satisfaction” by any method sufficient to enlighten a chief executive anxious to discharge with promptness his duty of enforcing the law through the men appointed by him to direct and regulate the entire police force, whose duty it is to suppress disorder, prevent, crime and arrest offenders against the law. The supervisory control of the police force lodged in the Governor in virtue of his power to appoint and remove the board which directs the police, has its root in the organic law charging him “to take care that the laws are . . . faithfully executed, ’ ’ which is the' first duty imposed upon him as the chief of the executive department of the State. [Constitution, aft. 5, secs. 4, 6.] The importance of this task and the exigency of the public welfare that its faithful performance should not be delayed or hindered, must not be overlooked when considering the application to the exercise of the power of amotion by a Governor, of similar principles of law controlling lesser functionaries and boards engaged in the performance of duties not so vitally and immediately essential to the welfare of the State.

III. It needs only to be stated that where power is given to remove an appointive officer, it must be one ■ which is exercisable either for cause, in which case notice and a reasonable opportunity to be heard are indispensable; or at will, that is, without any other formality than the exertion of discretionary power. And it necessarily follows that where the statute giving the power expressly authorizes the donee to act at will or discretion, no question can ever' arise except as to the fact of the removal. But where the enabling act does not, in terms or by necessary implication grant discretionary power of removal, then recourse must be had to all the sources of statutory interpretation and construction which will render the meaning of the lawmakers clear and enable the court to determine the exact nature of the power given in the particular ease.

IV. In this State the rules governing the removal of appointive officers have been discussed by the appellate courts in a series of cases in all of which, by the terms or implications of the statutory power given, the removal could only be for cause after notice and trial. One of the earliest is that ^ State ex rel. Denison v. City of St. Louis, 90 Mo. 19, and related to the removal of a police justice of the city of St. Louis. The charter of that city provided for the appointment of such officers by the mayor and with reference to their removal, provided, in so many words, that it should only be for cause. The court decided that this provision of the charter must be observed before a police justice could be removed. And jn a succeeding case, State ex rel. v. Walbridge, 119 Mo. 383, this court refused to prohibit the mayor of the city of St. Louis from trying certain charges upon which it was sought to remove the president of the Board of Public Improvements, holding that the proceedings in question were in all respects reasonable and in conformity to the provisions of the charter, which specifically conferred the power to remove said officer for cause. [Ibid393.]

The question was also presented to the St. Louis Court of Appeals upon an issue as to the validity of a removal of the superintendent of the poorhouse by the commissioners on charitable institutions of that city, under an authority conferred upon that body by the charter to remove any appointed officer of that institution by unanimous vote and in pursuance of an ordinance reaffirming such charter power and providing “that before any such removal shall he made, the person accused shall have a full, open and impartial hearing before the commissioners.” [State ex rel. v. Brown, 57 Mo. App. l. c. 203.] It was held that the power thus given to the commissioners was one to remove for cause. In discussing the interpretation of the grants of power to remove appointive officers, it was said in that case, in consonance with the preceding decisions in this Sate and elsewhere, that:

“It is fixity of tenure that destroys the power of removal at pleasure otherwise incident to the appointing power. The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. The effect of this rule is, that the right to hold during a fixed term can only be overcome by an express grant of power to remove at pleasure. An inferential authority to remove at pleasure cannot be deduced, since the existence of 'a defined term, ipso facto, negatives such an inference, and implies a contrary presumption, i. e., that the incumbent shall hold to the end of his term, subject to removal for cause.”

The foregoing language was expressly adopted by this court in State ex rel. v. Maroney, 191 Mo. l. c. 548, and is only quoted again in order to set forth its logical converse, to-wit: that where the power to remove is given, expressly or by necessary implication, in the enabling act by words or terms denoting that it may be exercised in discretion, such power to the extent thus given, is ex hypothesi one which may be exercised whenever in the mind and judgment of the donee of the power, the fact or thing exists upon which his discretion is rested.

In the case at bar the statute in express terms tells the Governor to remove any commissioner “upon his being fully satisfied” of “the alleged official misconduct” of such commissioner. It, therefore, falls within the exact terms of the proposition last stated and was necessarily included in the doctrine established when the foregoing decisions announced the rule of which that proposition is the logical converse.

V. Although the present case is the first time that this court has been required to pass upon a statute including within its terms language authorizing a removal by the Governor of one of his appointees whenever “fully satisfied” that a specified reason exists, or the power to remove at will for that reason, yet it was involved in all the eases in this State where the removals for cause were in judgment and which stated the exceptions to the doctrine of removal on that ground, and it has been directly adjudicated in other States and is the general consensus of the text-writers- A few cases will be cited.

In the case of People ex rel. v. Draper, 124 N. Y. Supp. 758, the court was called upon to construe the terms of a statute permitting the State Commissioner of Education “whenever it shall he proved to his satisfaction that any school commissioner or other school officer has been guilty of any wilful violation or neglect of duty,” etc., to remove such official. The court held that these terms necessarily implied a power of removal in the State Commissioner of Education without “notice” or “opportunity of defense,” saying that it had no difficulty in arriving at this legislative intent from a consideration of the policy of that State and the further fact that when dealing with the “Board of Education” it was expressly provided in that State that its members could only he removed “for cause shown after giving notice of the charge and opportunity of defense.”

The facts of the New York case are strikingly similar to the facts of the instant case and the legislative action in this State, which provides for a similar distinction, as has been shown, when referred to the power of removal of a member of the police force.

In the case of State ex rel. v. Burke, 8 Wash. 412, the statute authorized the Governor to remove the members of the Capitol Commission Board appointed until the completion and acceptance of the State building, unless sooner removed for cause by the Governor. It was said: “It seems to he well settled that the Legislature in creating an office may limit the duration of the term in any way it deems fit, if there is no constitutional provision which would fix the term. It might make it determinable at the pleasure of the Governor or any other person. In this case the power was entrusted to the Governor— to act, it is true, upon certain grounds — yet his action would he purely discretionary.” It was accordingly ruled the Governor might remove such officers without charges, notice or a trial, and that his power in this respect rendered an otherwise definite term an indefinite one, and that the use of the words “for cause” did not alter the nature of the power vested in the Governor, since the act specified no particular misconduct or wrongdoing, “nor any manner of removal other than it shall be by the Governor.”

In the case of Hertel v. Boismenue, 229 Ill. 474, a statute almost identical in language -with the one passed on by the Supreme Court of Washington was presented for review. The Illinois statute provided for the removal by the trustees of schools of a township treasurer appointed for a term of two years, for good and sufficient cause. The court held that this statutory provision was a mere generality uncoupled with any requirement of a formal charge or notice to the incumbent and that it might be exercised at will.

In the case of Ayers v. Hatch, 175 Mass. l. c. 491, provision was made in-the city charter for the removal by the mayor of any officer appointed by him for such cause as the mayor might deem sufficient. In that case the mayor exercised the authority thus given to him without preferring charges or giving notice and holding a trial, stating as his only reason that the removal was for “the good of the service.” The court held that this statute gave him a discretionary power for that reason to remove his appointee.

To the same effect are O’Dowd v. Boston, 149 Mass. l. c. 444; Attorney-General v. Brown, 1 Wis. 513; State v. McGarry, 21 Wis. 502; State ex rel. v. Grant, 14 Wyo. l. c. 57; People v. Welty, 75 Ill. App. l. c. 522; Trimble v. People, 19 Colo. l. c. 197; Wilcox v. People, 90 Ill. 186 ; State ex rel. Atty.Genl. v. Doherty, 25 La. Ann. l. c. 120.

VI. It is unnecessary to apply the full strength of the doctrine announced in the foregoing persuasive rulings in other States. It is sufficient in order to deter-m*ne the extent of the power of amotion vested in the Governor by the statutes under review, to ascertain the meaning of the language employed by applying to it the principles governing the removal of officers as declared by repeated decisions of this court and the most rigid rules elsewhere.

It will be seen at a glance that the statute (Sec. 8770, supra) does not give a definite term to the appointee, for while it mentions three years as the possible limit of the appointment, yet it prefaces that statement with the words “except as hereinafter provided.” By this conjunction of language, no definite term of office could arise except the provision thereinafter for ending it should not happen. This language evidently creates, by the greatest stretch of construction, only a conditional term of office whose existence depended wholly upon the exercise by the Governor of the power to remove “therein-after” specified in the statute.

As has been seen the words granting this power vested it wholly in the Governor of this State with authority to exercise it “upon his being fully satisfied” of the “official misconduct” of any commissioner. It will be noted that this language provides no method of inquiry on the part of the Governor before arriving at the mental state of satisfaction as to the official misconduct upon the existence of which his power to order a removal arises under the statute, the sole requirement being a state of personal satisfaction on his part that a member of the Board of Police Commissioners has been guilty of some official misconduct. The statute wholly refrains from specifying or defining this ground of removal by any terms of specification or definition. It simply made it the duty of the Governor to satisfy himself that the .party to be removed was guilty of some or any misbehavior or neglect of duty falling within the meaning of the general terms “official misconduct.” These are terms of the broadest generality and comprehensiveness and were designed by the lawmakers to enable the Governor to conduct a correspondingly wide inquiry with authority to act the moment he was “fully satisfied” that any such appointee was guilty of any dereliction of official duty. Discretionary power thus invested in the Governor was uncontrolled except that it could only be exercised with reference to improper conduct on the part of a police commissioner in discharging his duty as the direct representative of the Chief Executive in the maintenance of peace, suppression of disorder and the prevention of crime. The Governor was not authorized to remove such official for any other reason. But once he was fully satisfied in his own mind of the existence of any act or omission falling within the hroad language of the statute, his power to remove was subject to no restraint or limitation whatever. Since the statute under review gives him full discretion to act by express authority therein contained, it does not fall within the purview of any of the rulings in this State or elsewhere denying the existence of the right to remove an officer at will where he was appointed for a definite term and where the statute authorizing his removal does not expressly or by necessary implication give that power. In the instant case, the acting Governor of this State filed in the office of the Secretary of State his order removing the respondent, expressly stating in such order the statutory reason for his action. Both in reason and under the -standards fixed by the decisions in this State, this action of the Governor was the performance of the duty imposed upon him by statute and he would have been unfaithful to his obligations to the people of this State if he had permitted a member of the Board of Police Commissioners to remain in office after being fully satisfied that he was abusing the trust imposed upon him by his appointment and by the law defining the duties of such office.

Respondent calls our attention to the ruling in the case or State ex rel. v. Maroney, supra. There is nothing in the discussion of the law in that case at variance with the legal principles applied in the case under review; for it quotes and affirms the previous decisions of this court from which the conclusions reached in the present case are deduced. In the Maroney ease the court was considering the power of a Board of Election Commissioners to remove, for causes specified in the statute giving them that power, certain judges and clerks appointed to conduct an election. Such officers were appointed for a term of ninety days and the Board of Commissioners given power to remove if any such appointee was “found not to possess the statutory qualifications or to be guilty of neglect of duty or of any official misconduct.” The term “find” is thus defined in law: “To ascertain by judicial inquiry.” [19 Cyc. 534.] Also: “To determine and declare an issue of fact by its verdict or decision as a court or jury.” [Webster’s New Internal Diet, word “find” v. i. Law.] According to this meaning of the term “found,” the statute in question which included that word, required the Board of Election Commissioners to make a semi-judicial inquiry, the necessary incidents of which were notice of charges and an opportunity to be heard before removing the judges and clerks appointed by it. So regarded, the statute in question by its terms limited the power to remove such officers for cause and the necessary incidents of such removals. It is clear, therefore, that the Maroney case is no authority for a similar ruling in the one at bar. Here, as has been shown, the power to remove was inserted in the statute and rests in the discretion of the Governor upon prescribed grounds, the existence of which he is allowed to determine to his own satisfaction. The return shows that the reasons given for his action were in strict conformity to the statutory power. He was thus possessed of jurisdiction to act, and his exercise of that jurisdiction was the discharge of an executive duty imposed on him as the Governor of the State, which is not reviewable by the courts. [State ex rel. v. Stone, 120 Mo. l. c. 433-4.]

Of the Maroney case, it is enough to say that while not amiss in its statements of legal principles, it goes to the verge of the law in applying them to the facts in judgment and can only be supported on the ground of the technical meaning given to the word “find,” of which the word “found” in the act is the past participle.

Our conclusion is that the judgment of the trial court should be and is affirmed.

Paris, Walker and Blair, JJ., concur; Woodson, G. J., not sitting; Graves and Revelle, JJ., dissent.

BLAIR, J.

(concurring). — In this case the statute expressly provides neither a hearing nor a removal at pleasure. It is sometimes said that unless removal at pleasure is expressly provided, notice and hearing will be implied. This is well enough in case the right to remove is conditioned upon the actual existence of a disqualifying fact, official misconduct, guilt of some criminal offense, etc. On the other hand, in case there arises out of the statute a necessary implication that notice and hearing are not required, such notice and hearing cannot be required. What is necessarily implied is as much a part of the statute as what is' expressly enacted. The statute here applicable empowers the Governor to remove in ease he is “fully satisfied” of the commissioner’s official misconduct. Had the statute provided merely that the Governor might remove “for official misconduct” it would have been well enough to imply notice and hearing before removal. Such a provision reasonably could be held to condition the right to remove upon the existence in fact of official misconduct on the part of the officer. When notice and hearing are implied, they must be implied for the purpose of trying the question whether the condition has arisen upon which the statute authorizes the removing power to act. Obviously, no other matter could be tried. Under the statute involved in this case the condition precedent to the exercise of the power to remove is that the Governor shall be “fully satisfied” that the commissioner has been guilty of official misconduct; not that the commissioner shall have been so guilty. It is plain nothing could be tried in a hearing under this statute save the question whether the Governor was “fully satisfied,” and it is equally plain that question is not triable at all. The idea of a trial before the Governor to determine what the Governor thinks is a novel suggestion. The Governor might, conceivably, permit an official to be heard in order to reach a correct conclusion, but in this case the Governor • has declared himself fully satisfied and has acted, and courts cannot add to the statute conditions the Legislature did not include.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    KANSAS CITY v. R. M. PENGILLEY, Appellant.
    In Banc,
    November 11, 1916.
    1. IMPRISONMENT FOR DEBT: Breach of Contract. An obligation to pay arising out of a contract is strictly within the meaning of the word “debt” as used in the constitutional provision forbidding imprisonment for debt, and such prohibition cannot be evaded by the Legislature or a city council by the device of declaring a breach of such a contract a crime.
    2. -:-: Use of Automobile or Other Vehicle: Failure to Pay. An ordinance declaring that any person who hires an automobile, carriage, buggy, wagon or taxicab, and refuses to pay the agreed price, or a reasonable price, or the rate fixed by ordinance, shall be deemed guilty of a misdemeanor, and on conviction be fined not less than one or more than five hundred dollars, is, in the absence of all fraud on the part of the hirer, invalid as an indirect effort to evade the constitutional provision prohibiting imprisonment for debt.
    3. -:-:-: Police Regulation. The police power cannot be used as a cloak under which to overthrow or disregard the constitutional inhibition of imprisonment for debt.
    Appeal from Jackson Criminal Court. — Ron. Ralph 8. Latshaw, Judge.
    Reversed.

      William G. Forsee, J. E. Trogdon and 8. P. Forsee, Jr., for appellant.
    (1) The ordinance in question is invalid, because it is uncertain, unreasonable and oppressive. It undertakes to punish one who shall-“refuse” to pay, without saying at what time the refusal shall occur. It does not state at what moment the pay is demandable, or the refusal to pay shall be deemed to occur. City v. Glover, 210 Mo. 502; City v. Black, 139 Mo. App. 386; City v. Fitz, 53 Mo. 582; City v. Roche, 128 Mo. 546; Ex parte Smith, 135 Mo. 223; City v. Riley, 72 Mo. 220; City v. Springfield, 93 Mo. App. 70; St. Louis v. Packing Co., 141 Mo. 388; City v- Weidman, 57 Mo. App 513. (2) It is void because it is in conflict with article 2 of section 16 of the Constitution. If the ordinance had provided that any one who obtained a taxicab ride through the use of artifice, deception, stratagem, false pretense or other fraudulent practice, with intent to defraud the owner or driver, should be punished, it might, in a proper case be sustained. But as it punishes for a mere refusal to pay a debt, it indirectly attempts to inflict imprisonment for debt. We concede that where a fine or penalty may properly be imposed, the offender may be imprisoned for nonpayment of the fine. But not otherwise. Constitution, art. 2, sec. 16; State v. Paint Bock Co., 92 Tenn. 81-82; Ex parte Holm'an, 79 S. C. 9 ; Lamar v. Prosser, 121 Ga. 153; Knutte v. Const., 134 Cal. 660; Lamar v. State, 47 S. E. 958; Youmans v. State, 66 S. E. 387; State v. Benson, 28 Minn. 424; Carr v. State, 106 Ala. 35; Meyer v. Berlandi, 39 Minn. 438; State v. Yardley, 95 Tenn. 46. Imprisonment for debt is not allowed in Missouri. Ex parte Crenshaw, 80 Mo. 447; Coughlin v. Elilert, 39 Mo. 286; McMackin v. McMackin, 68 Mo. App. 60; Robertson v. Stoner, 18 Mo. 286; Ex parte Millett, 37 Mo. App. 82.

      Andrew F. Evans, Hunt C. Moore, H. A. Ault, J. A. Harzfeld, G. M. Blackmar and A. F. Smith for respondent.
    Plaintiff employed a taxicab and at the conclusion of service rendered him refused to pay the charge fixed by ordinance, which made it unlawful for any person to refuse to pay such charge for such service rendered. The ordinance is valid. It does not conflict with section 2 of article 16 of the Constitution, which prohibits imprisonment for debt. The business of carrying passengers for hire in hacks and taxicabs is a public employment and subject to regulation by the government. Wyman on Public Serv. Corp., sec. 186. An ordinance making it unlawful to pay the charges of a hackman as fixed by ordinance is valid. Bray v. State, 140 Ala. 37. An ordinance making it unlawful to sell street car transfers is valid. Ex parte' Lorenzen, 128 Cal. 431; Chicago v. Openheim, 229 111. 313. The contracts of the operators of public utilities are subject to control by penal statutes. State v. Railroad, 242 Mo. 339.
   BLAIR, J.

This appeal comes from the criminal court of Jackson County, wherein, on appeal from the municipal court of Kansas City, appellant was fined five dollars for an alleged violation of a section of an ordinance of Kansas City, reading thus: *

“Sec. 1. That any person who shall hire a horse-drawn or power-propelled vehicle, whether carriage, buggy, wagon, automobile or taxicab, for the purpose of riding therein or transporting any goods, wares or merchandise, and shall refuse to pay the agreed price, or the reasonable price therefor, or the rate therefor as fixed by any ordinance of Kansas City, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than one dollar nor more than five hundred dollars.”

The remainder of the ordinance prescribed rates and regulations for automobiles used for carrying passengers for hire.

Commitment for failure to pay the fine is part of the judgment in this case.

This proceeding grew .out of appellant’s failure to pay $15.40, claimed for the use of an automobile in which he rode. Let it be assumed the amount was correct and that appellant refused to pay. The principal question counsel discuss is whether the ordinance is valid when tested by the provision of section 16, article 2 of the State Constitution, which forbids imprisonment for debt.

A fine assessed for the infraction of a valid city ordinance is not within the prohibition mentioned. [St. Louis v. Sternberg, 69 Mo. 302, 303.] Is this ordinance valid? It is true it gives the unpaid owner of the vehicle no recovery under it, yet it does make the mere failure to pay an offense punishable by imprisonment. The obligation to pay arose out of a contract (Lemon v. Chanslor, 68 Mo. l. c. 353) and is strictly within the meaning of the word “ debt ’ ’ as used in the constitutional provision forbidding imprisonment therefor. It cannot be admitted that the constitutional prohibition may be evaded by the device of declaring a simple breach of contract a crime unless it is to be conceded that city councils and the Legislature are not restricted at all. [Bailey v. Alabama, 219 U. S. l. c. 242.] Upon this question, the Supreme Court of Washington said: “Imprisonment for debt is abhorrent to the spirit of free government, and is not to be tolerated under the form of penal statutes.” [In re Milecke, 52 Wash. l. c. 315.] The same principle was approved in State v. Paint Rock Coal & Coke Co., 92 Tenn. l. c. 83, 84. In Lamar v. Prosser, 121 Ga. l. c. 154, the Supreme Court of Georgia, discussing the same proposition, said: “The General Assembly of this State cannot, under the guise of a statute creating a criminal offense, imprison one who has failed to pay a debt.”

In this case the ordinance did not require, nor did the evidence tend toward, proof of fraud in the procurement and use of the vehicle. It is hardly disputable that the chauffeur knew appellant had no money with him when accepted as a passenger. The ordinance constitutes an effort to do indirectly what the Constitution declares shall not be directly done, and is, therefore, invalid. [State ex rel. v. Neosho, 203 Mo. l. c. 72, 73.]

It is contended the ordinance falls within the police power. “The police power cannot be made a cloak under which to overthrow or disregard constitutional rights.” [State v. Railroad, 242 Mo. l. c. 356.] This is settled doctrine.

The case of Bray v. State, 140 Ala. 172, involved an ordinance punishing the failure to pay hack hire. While the court held the ordinance valid, it did not discuss the provision of the Alabama Constitution prohibiting imprisonment for debt except to hold that “fines, forfeitures, mulcts,” etc., were not debts within its meaning. It did declare the passage of the ordinance within the council’s legislative power as a police regulation, but did not argue the matter, and cited as authority a case holding city councils had power to regulate markets and require certain businesses to be transacted therein. The views of that court upon the particular justification, in the police power, of the ordinance it was considering are not given in detail in the opinion. .The ordinance is not set out in full, and what it may have required, if anything, in respect of proof of fraud does.not appear. In these circumstances we are not inclined to consider it as an authority supporting the city’s contention in this case.

It is urged the fact the taxicab company was a common carrier ought to induce a different conclusion. There is no direct proof supporting the fact ^assumed. The taxicab company is in no wise at the mercy of its patrons. It may require payment in advance if it so desires and thus protect itself. Regulations may. be imposed upon patrons of carriers and fines may be assessed for their violation, but such regulations must accord with applicable constitutional provisions. Further, the ordinance is not limited to common carriers, but applies, by its terms, to every horse-drawn or power-propelled vehicle hired for the conveyance of goods or passengers. Again, it is not confined to licensed vehicles, as was the ordinance in Bray v. State, supra. The judgment is reversed.

Graves, Walker, Faris and Revelle, JJ., concur; Woodson, G. J., concurs in the result; Bond, J., dissents.


author:
WALKER, J.
      GRAVES, J. BOND, J. REVELLE, J.

text:
    THE STATE ex rel. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI and BOARD OF TRADE OF KANSAS CITY.
    In Banc,
    November 11, 1916.
    1. INTERSTATE SHIPMENT: Elements: Exceptions. Whether the movement of a commodity is intrastate or interstate commerce is to be determined in the majority of cases from certain elemental facts. These are the intention of the shipper as indicated by the bill of lading, the continuity of the movement and the delivery of the commodity under the shipment contract. When some of these elements are absent, other facts, due to the nature of the particular ease, and of sufficient probative force to determine the character of the shipment, are present.
    2. INTERSTATE SHIPMENT: Initial Purpose. An interstate shipment exists when a commodity has been turned over by a shipper to a common carrier to be transported from one State to another under a contract of shipment — the definite character of the shipment being fixed when the movement of the commodity has commenced for the purpose of transportation.
    3. -•: Intention: Evidenced by Contract. Intention, while not in some cases controlling, is important in determining the character of the shipment.

      Held, by GRAVES, X, concurring, that the intention of the shipper governs the character of the shipment (as to whether interstate or intrastate); but when that intention has been clearly evidenced by a written contract of carriage to which both parties have subscribed, the carrier is estopped by the terms of the contract from asserting that the intention was for an interstate shipment, where the contract by its terms calls only for an intrastate one. In such case the intention is to be gathered from the instrument.
    4. -: -: Contract: Reconsignment. Where the contracts are for shipments from points in Missouri to grain dealers in Kansas City, Missouri, and the commodity is there delivered to and sold by the consignees, who are grain dealers on the floor of the Board of Trade, the delivery to them completes the contract between the shipper and carrier, and the whole transaction having been confined to Missouri the shipment is intrastate, although the grain at the time of the sale has not been unloaded and remains in cars on the hold tracks until it is sold by the consignees to other purchasers.
    Held, by REVELLE, X, concurring, that shipments consigned from one point iri this State to another point in this State are intrastate shipments, unless it is the intention of the shipper to reconsign the same and extend it beyond the State line, or unless the shipment is of such a character and made under such circumstances that it necessarily must, regardless of the shipper’s intention, extend beyond the line.
    5. --: -: Contract as Determinable. While the essential character of the commerce is influenced by the billing or form of contract, it is not to be controlled by it except when taken in connection with the other essentials, namely, the continuous movement from the place of shipment to the final destination named in the contract, and the delivery of the commodity.at such place to the consignee.
    Held, by GRAVES, X, concurring, that the intention of the shipper determines whether the shipment is intrastate or interstate and the intention of the parties cannot and should not be determined otherwise than by their solemn written effreightment contract.

      Held, by BOND, X, concurring, that the essential character of commerce is determined by (1) the intention of the shipper and (2) the nature and object of the shipment, which may be shown from the facts and circumstances of the particular case, and are not conclusively established by the terms of the bill of lading, which can never alter the real nature of the shipment, but are only evidentiary, in connection with other facts and circumstances, of the purpose and destination of the shipment.
    6. -: Hew Movement Under Hew Contract. If, after the grain has been transported from initial points of shipment in Missouri to Kansas City, Missouri, and there delivered to consignees who sell it in carload lots to other purchasers while it still remains unloaded on the hold tracks, it is moved under the purchaser’s direction, the carrier commences the performance of a new contract separate and independent of the original one, and if thereunder the shipment be across the State line it becomes interstate in its character upon the beginning of the new movement.
    7. -■: Usage and Custom. Usage and custom cannot be invoked to destroy, modify or contradict what is otherwise manifest, or to make a contract where there is none. They cannot be invoked to turn an intrastate shipment into an interstate one.
    8. -: Placing Cars on Holding Track Over State Line. Where the bill of lading or contract between the shipper from a Missouri point and the carrier names Kansas City, Missouri, as the final destination of the grain, the carrier cannot, by placing the unloaded cars after they have reached this destination, for its own convenience, on its hold tracks in the State of Kansas, during the time intervening between their arrival and the sale of the grain by the consignee, change the character of the intrastate shipment into an interstate one.
    Appeal from Jackson Circuit Court. — Non. Harris A. Robinson, Judge.
    Affirmed.

      O. W. Hynes, S. W. Moore, J. M. Souby, Jam.es F. Green, Cowherd, Ingraham, Durham é Morse, N. 8. Brown and Scarritt, Scarritt, Jones S Miller for appeh lants.
    (1) Custom and usage or usual course of business between skippers and railroads in handling any commodity is everywhere recognized as all important in determining the rights of shippers and the rights and liabilities of railroads. Examine almost any authority on railroads, and upon almost every page the statement will be found that usage and course of business is a prime essential in arriving at the rights and liabilities of the railroads. 6 Cye. 418, 428, 457; 465; The Richmond, 1 Biss. (U. S.) 49; Staroske v. Pub. Co., 235 Mo. 75; Calm v. Railroad, 71 111. 96. G-rain is different from every other commodity and must be handled in a amnner peculiar to itself. Therefore, to refuse to consider the established custom or usage in the transportation and delivery of grain by railroads at any given point is to shut one’s eyes to the only way, in the absence of statutes, of determining whether or not a carrier has performed its duty to a shipper of grain. (2) By the words “Kansas City, Missouri,” in a bill of lading is not meant the corporate limits of Kansas City, Missouri, but rather the “switching limits of Kansas City.” It is erroneous to conclude that the words “Kansas City, Missouri,” can have only one signification wherever found and in whatever connection used and, therefore, not subject to interpretation. The words unquestionably have different. significations in different connections. The boundary between Kansas City, Missouri, and Kansas City, Kansas, is purely an imaginary line, and it is entirely a political division and not a business division. No distinction whatever is. known among shippers or railroads between Kansas City, Missouri, and Kansas City, Kansas. Devato v. Plumbago, 20 Fed. 510; Milling Co. v. Railroad, 152 Wis. 528. To construe the words “Kansas City, Missouri,” in the bill of lading, “does not change a contract, vary it in any way; it merely gets out of it the sense the parties intended to put into it’’ Reiss v. Railroad, 98 Fed. 533. We do not rely solely on usage and custom to define the words “Kansas City, Missouri,” as used to designate the terminal in a grain bill of lading. The tariffs published by the railroads distinctly set forth, as being within such terminal, Argentine, Kansas City, Rosedale, etc., in Kansas. “So far as grain traffic is concerned, these substations are subdivisions; are all within the Kansas City switching limits and are a part of the market at Kansas City.” A part of the State of Kansas being within the limits of “Kansas City, Missouri,” as that designation is known in shipping and railroading, and as explained in the published tariffs of the railroads, it is distinctly erroneous to conclude that the intention or contract of the shipper, as evidenced by the bill of lading, was that the grain in question should be moved only in Missouri. (3) There is no delivery at the “hold” tracks. Unquestionably it is the duty and contract of the common carrier not only to transport commodities from one point to another, but it has the further duty to make delivery at the terminal point. Until delivery is- made, the contract, evidenced by the bill of lading, is not completed. There was no “delivery to the consignee of the shipper on the ‘hold’ track of the carrier.” Delivery is generally a matter of cold, actual, physical fact, rather than a matter of argument or speculation. Whether or not a carrier has made delivery of a commodity at a proper place, so as to complete its contract, frequently, if not generally, depends upon the usage or practice in the particular locality, as to the delivery of such commodity. Whether considered from the standpoint of cold, actual, physical fact, or from the standpoint of usage and practice, the conclusion must be against the finding that there is ever a delivery of grain on the “hold” track of a railroad, in Kansas City. There is no facility for unloading grain at the “hold” track. It is not reachable even by wagons. During the whole time that a car of grain stands upon the “hold” track, it is in the custody of the carrier and the carrier is responsible for the same, as carrier. If the grain should be burned or destroyed while on the “hold” track, there can be no question but what the railroad company would be liable as insurer. Railroad v. Nash, 43 Ind. 423; Milling Co. v. Railroad, 152 Wis. 528; Lewis v. Sharvev, 58 Minn. 464; Interstate Com. Comm. v. Railway, 234 U. S. 294; 6 Cyc. 467; Railroad v. Murray, 72 111. 128; Cahn v. Railroad, 71 HI. 96; Railroad v. Nash, 43 Ind. 423; The Richmond, 1 Biss. (U. S.) 49; Bartlett v. Steamboat, 32 Mo. 259; The Boston, 1 Lowell (IT. S.), 464. (4) The order for delivery is not the making of a new contract or the starting of a new shipment. There is no consideration moving to the railroad company for any new contract for this movement from the “hold” track to the point of delivery. The order giving the point of unloading is not the giving of a new destination, but is only the designation of the point of delivery, within the original destination. State ex rel. v. Railroad, 176 Mo. 687; Milling Co. v. Railroad, 152 Wis. 52i8; Badenoch & Co. v. Railroad, 22 I. C. C. 36; Fuel Co. v. Railroad, 15 I. C. C. 443. Where, as here, a commodity has moved from a seller in Missouri to a buyer in Kansas in the same car in which it was first loaded, and the car, from loading to unloading, has remained in the custody of the carrier and has continued under the control and direction of the original shipper, or his agent, it would certainly seem a simple fact, too plain for argument, that the commodity had moved from the seller in Missouri to the buyer in Kansas in interstate commerce.

      Wm. G. Busby and Atwood & Hill for respondents.
    (1) We especially call the court’s attention to the following cases which are undoubtedly controlling and decisive of this case: Hay & .Grain Co. v. Railroad, 2 I. C. C. 82; Larabee v. Railroad, 74 Kan. 808; Railroad v. Larabee, 211 U. S. 612; Coe v. Errol, 116 H. S. 517; Railroad v. Texas, 204 IT. S. 403; Railroad v. Iowa, 233 IT. S. 343; Kolkmeyer v. Railroad, 182 S. W. 794. (2) A shipment takes the character of interstate commerce only when it is actually started in the movement to another State and becomes interstate commerce only when such movement'begins. .Larabee v. Railroad, 74 Kan. 818; Shipping Assn. v. Railroad, 90 Kan. 264; Railroad v. Railroad Comm., 173 Ind. 469; Smith & Son v. Railroad, 177 Mo. App. 270. (3) The movement of the grain from the point of origin in this State to point of final destination in the State of Kansas is not a continuous movement between the States. Railroad v. Iowa, 233 U. S. 343; Railroad v. Texas, 204 U. S. 403. The contract between the railroad company and the shipper of grain was for the carriagé of the grain from a point in this State to Kansas City, Mo. Custom cannot change the contract to one requiring the additional movement of the grain from Kansas City, Mo., to Kansas. Bank v. Burkhardt, 100 U. S. 692; Tilley v. Cook County, 103 U. S. 162. (4) The consignee accepted delivery of the grain upon the hold track at Kansas City, Missouri, and the further movement of the grain to Kansas was an interstate movement beginning at the hold track and not at the point of origin of the shipment, (a) The consignee may receive goods addressed to him in the hands of the carrier at any place — original destination or intermediate point — and such acceptance operates as a discharge of the common carrier liability of the railroad to the consignor — the contract of carriage being thus completed. Hay & Grain Co. v. Railroad, 11 I. C. C. 82; Sweet v. Barney, 23 N. Y. 338; Lewis v. Railroad, 11 Met. (52 Mass.) 509; Railroad v. Bartlett, 7 H. & N. 401; Freeman v. Railroad, 118 Mo. App. 534; Grain Co. v. Railroad, 134 Mo. App. 684; Smith v. Railroad, 177 Mo. App. 270. (5) Diversion, reconsignment and transit privileges are of importance in the proper handling of transportation, but these privileges are often abused and at times at certain points are almost impossible of application, due to conditions over which the carriers have no control, and for years past the majority of shipments in and out of Kansas City have moved upon reshipping rates, in lieu of transit rates. Board of Trade v. Railroad, 29 I. C. C. 376; Morgan v. M., K. & T., 12 I. C. C. 525; Freight Bureau v. Railroad, 14 I. C. C. 150.
   WALKER, J.

This is an appeal from a judgment of the circuit court of Jackson County under the provisions of section 114, Laws 1913, page 644.

The Board of Trade of Kansas City, Missouri, filed a complaint before the Public Service Commission, alleging that the railroad companies named above as appellants were charging interstate instead of intrastate rates for shipments of grain from points on their respective lines within this State to Kansas City, Missouri, in violation of the State maximum freight rates. [Secs. 3240, 3241, R. S. 1909.]

Upon a hearing a finding was made by the commission sustaining the contention of complainants that the said, shipments were intrastate instead of interstate, and the railroad companies were ordered to desist from charging higher rates for such shipments than those prescribed by the State statutes.

A review of the findings and order of the commission, under section 111, Laws 1913, page 644, was held before the circuit court of Jackson County on the application of said railroad companies, and the action.of the commission was in all things affirmed. The correctness of the judgment thus rendered is the matter for our consideration.

The grain involved in this controversy is such as is shipped in car-load lots from points within this State to Kansas City, Missouri, and is subsequently sold and delivered within the switching limits of said city. The shipments are made under bills of lading to grain dealers in Kansas City, Missouri, or to bills of lading, such as show consignments to the orders of shippers, but bear notations to carrier’s agents at destination to notify parties named of arrival of shipments. The names of parties to be notified are those of grain dealers. Upon the arrival of grain at its designation it is placed by the carriers on their hold tracks for inspection, who at once notify the consignees or dealers named in the bills of lading. The hold tracks are those used by carriers upon which to set or place upon their arrival at their destination, cars of grain pending the nspection and sale of same. Some of these hold tracks are in the State of Kansas. When the grain in such cars has been inspected, whether in Missouri or Kansas, a sample is taken of that contained in each car, accompanied by a ticket describing the car and giving the grade, weight and quality of the grain, which is signed by the inspector. This sample is delivered to a grain dealer, who exhibits it with the inspection ticket on the floor of the Board of Trade, and upon snch sample the carload of grain is sold. The terms of the sale are placed on the back of the inspection ticket, which is delivered to the buyer and constitutes the written evidence of his purchase. When the grain is sold a written order is made by the dealer directing the carrier where the car shall be delivered; this order is attached to the bill of lading by the dealer and delivered to the agent of the carrier. Upon this order the car is taken from the hold tracks and delivered to the purchaser.

If the place of the delivery of the grain after it is sold is on the line of the carrier it is delivered to the buyer without additional charge, but if it is transferred to another line a reconsignment charge is made for such service by the original carrier and a switching charge is made by the connecting carrier. After delivery the buyer settles with the grain dealer by paying for the grain according to the terms of purchase, and the dealer, as agent for the shipper, pays the carrier the freight charges, including (if the car is delivered by a connecting carrier) a reconsignment and switching charge. When switching charges are due they are paid by the buyer in his settlement with the dealer, and the latter pays same to the carrier for account of the connecting carrier.

An intrastate movement of a commodity is usually to be determined from certain elemental facts common in the majority of cases to all shipments. These are the intention of the shipper as indicated by the bill of lading; the continuity of the movement of the commodity; and its delivery under the contract of shipment. There are adjudicated cases from which some of these are absent. When this occurs other facts are found to be present, due to the nature of the particular case, of sufficient probative force to determine the nature of the shipment.

Applying the elementáis noted, we find that an interstate shipment exists when a commodity has been turned over by a shipper to a common carrier to be transported from one State to another under a contract of shipment, the definite character of such shipment being fixed when the movement of the commodity has commenced for the purpose of transportation.

If, however, the commodity has been committed to the carrier by the shipper for transportation from one point to another in the same State, the character of the commerce is intrastate in its nature, subject to certain limitations not in this case, but which we will notice later.

These definitions are sufficient to distinguish generally between the two classes of commerce — the one regulated by Federal and the other by State law. Thus regulated we look to the rulings of the United States Supreme Court and those of our own court to aid in the construction of these statutes and thus determine the classification of a shipment in any given case.

Here it is admitted that the contracts of shipment were from points in the State to Kansas City, Missouri. There is an absence of intention, either express or implied, on the part of shippers to ship the grain beyond Kansas City, Missouri. Intention, while it may not in some instances be controlling, is in these cases important. The owners of the grain, in the exercise of a proper dominion over their property, ship it to said city for sale. It is there delivered to and sold by a consignee of the shipper on the floor of the Board of Trade. The delivery to the consignee completes the contract between the shipper and the carrier (Adams Express Co. v. Kentucky, 214 U. S. l. c. 223; L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. l. c. 82; Kirkmeyer v. Kansas, 236 U. S. l. c. 572), and the transaction having been confined to this State, no question can arise as to the nature of the shipment, viz., that it is intrastate. The following concurrent conditions confirm this conclusion: (1) The intention of the parties evidenced by the bill of lading naming Kansas City, Missouri, as the point of final destination; (2) the continuous movement of the grain to such point; and (3) its delivery there to the consignee of the shipper on the hold tracks of the carrier. The essential character of the commerce is properly determinable from the presence of these requisites, and while influenced by the billing or form of contract, the character of the shipment is not to be controlled by it except when taken in connection with the other essentials in the case. Upon the sale of the grain its further movement is subject to the direction of the purchaser. He may, dependent upon the location of his business or his purpose in the disposal of the grain, direct its shipment to a point outside of the state, but until he so directs the character of the commodity as an article of commerce continues as under the original shipment.

When, however, the movement of the grain begins under the owner’s direction, the carrier commences the performance of a new contract separate from and independent of the original under which it had transported the grain from the initial point of shipment to Kansas City, Missouri. [Railroad v. Texas, 204 U. S. 403; Chi. M. & St. P. R. R. Co. v. Iowa, 233 U. S. l. c. 334.] If the shipment be across the State line its character becomes interstate in nature upon the beginning of the movement of the grain under the new contract. Precedents sustaining this conclusion are plentiful. In general terms we find it affirmatively declared in The Daniel Ball, 10 Wall. 565; Coe v. Errol, 116 U. S. 517; La. R. R. Comm. v. Railroad, 229 U. S. 336; Ohio Railroad Comm. v. Worthington, 225 U. S. 101.

It will be found that the requisites we have referred tó are not present in all of the cases in which the shipments were held to be interstate in their nature. In each of these cases, however, there are existing facts so clearly defining the intention of the parties as to enable the nature of the transaction to be readily determined without other aid. Take, for example, the case of Southern Pacific Terminal Co. v. Interstate Comm. Commission, 219 U. S. 498. In that case, while the billing was local, the commodity shipped, as disclosed by all of the facts, was from its origin intended for export; and everything that was done in regard to same from the beginning down to the loading of the commodity on foreign-bound ships was a part of the contract of carriage and the shipment was therefore held to be interstate in character.

In United States v. Union Stock Yard, 226 U. S. 286, a shipment originated outside of the State of Illinois. Before it was completed it was moved over the rails of the Union Stock Yards to its final destination. The question arose as to whether this last shipment was not intrastate, and it was held not to be, but on the contrary a part of the entire movement from the point of origin.

Another case illustrating the fact that local billing alone will not determine the nature of a shipment is that of La. Railroad Comm. v. Texas & Pacific Ry. Co., 229 U. S. 336. In this case staves and logs were shipped to New Orleans and there loaded on vessels for export. It was held, notwithstanding the billing, that from the beginning there was an evident intention and purpose to ship to foreign countries and that except for the necessary reshipment at New Orleans there was that continuity of movement necessary to characterize the transaction as interstate.

In State ex inf. v. A. T. & S. F. Ry. Co., 176 Mo. 687, a suit was brought by the Attorney-Greneral to oust certain railroads from the exercise of corporate powers for exacting a reconsignment charge for handling certain cars in Kansas City, Missouri. It being shown that the only shipments involved were those originating outside of Missouri, it was held that the charges were not improperly made on the ground that the State has no power or authority to forfeit the right or franchise of a common carrier doing interstate business, or to oust it from the exercise of its right to charge tolls or fees for interstate transportation. That case, therefore, has no application under the facts to the ease at bar.

The cases to which we have made particular reference are readily distinguishable from that under review. Each of those discloses marked interstate characteristics not to be found here, and it is only by implication and supplementing a completed contract by invoking custom or usage that any applicable facts can be found giving the transaction here other than an intrastate character. Usage or custom cannot properly be invoked to aid in the contention of the appellants. The purpose of the contract between tbe shipper and the carrier is manifest from its terms. While general usage may, in a particular case, be shown to remove ambiguities and uncertainties, it cannot be employed to destroy, modify or contradict what is otherwise manifest; nor make a contract where there is none, and hence its application in this case is unauthorized. [National Bank v. Burkhardt, 100 U. S. l. c. 692; Tilley v. Cook County, 103 U. S. l. c. 162.]

Let us suppose an extreme case, however, of which there are said to be occasional instances, in which the hold tracks of the carrier are beyond the State line. Suppose, in a case of this character, the carrier, for its own convenience after the cars containing the grain have reached Kansas City, Missouri, places same on a hold track in the State of Kansas during the time intervening between the arrival of the cars and the sale of the grain. Will this fact alone control the character of the shipment? We think not. The only written evidence of the contract between the shipper and the carrier is the bill of lading. This defines Kansas City, Missouri, as the final destination of the property. No facts in the case authorize the conclusion that either the shipper or the carrier intended otherwise. The added movement by which the cars were transferred across the State line and there held by the carrier was on its own initiative and for its own advantage. Aside from the shipper’s lack of intention that this should be done; there is nothing to indicate he had any knowledge it has been done. Despite these facts it is sought to burden him with a greater rate of carriage than he contracted to pay. Or, in other words, on account of the carrier’s act alone it is sought to have the shipment classified as interstate in its character. The facts do not warrant it, and well reasoned authorities correctly construed do not authorize it.

From the foregoing it follows that the judgment of the circuit court should in all things be affirmed, and it is so ordered.

All concur: Graves, Bond and Revelle, JJ., each in separate opinions.

GRAVES, J.

(concurring). — I concur in the result of the opinion by Walker, J., and in much that he has said therein. My views, perhaps, go further than do his. [Vide dissenting opinion in Deardorff v. C. B. & Q. Ry. Co., 172 S. W. l. c. 336.] The intent of the shipper governs the character of the shipment (as to whether interstate or intrastate) but when that intent has been clearly evinced by a written contract of carriage to which both parties have subscribed, the railroad company, for the purpose of getting a higher rate of carriage, is estopped by the terms of its written contract from saying that the intention was for an interstate shipment, if the contract was one for an intrastate shipment. Where the contract is for an intrastate shipment, the intent must be gathered from the instrument. I am aware that there are cases seemingly to the contrary, but I cannot bring my judgment around to the idea that the intent of the parties as to the character of a given shipment can or should be determined otherwise than by their solemn written agreement as to the carriage. I therefore concur with the result reached, and such portions of the opinion as do not conflict with these views.

BOND, J.

(concurring). — I concur in the result of the learned opinion of our Brother Walker for the following reasons: The essential character of commerce in cases like the present is determined, first, by the intention of the shipper; second, by the nature and object of the shipment. These may be shown from the facts and circumstances of the particular case and are not conclusively established by the terms of the bill of lading, which can never alter the real nature of a shipment and whose language may be explained or overcome by the characterizing elements of the transaction. That the terms of a bill of lading are not conclusive of the nature of the shipment, but only evidentiary in connection with other facts and circumstances bearing on the purpose and destination of the shipment, is now the settled doctrine of the Supreme Court of the United States. [Lusk v. Atkinson, 268 Mo. l. c. 124, and cases cited.]

In the case under review, the record reveals no facts indicating any intent on the part of the shipper to send the product beyond the borders of this State, and discloses no knowledge on his part of the delivery of similar shipments beyond the confines of the State. There existed, therefore, no data affording reasonable grounds for an inference on the part of the shipper that his property was to be transported to a point beyond that designated in the bill of lading, nor informing him of the existence of such custom on the part of the carrier.

It follows that the tests determinative of the character of interstate commerce were not met by the facts disclosed in this record. On account of this failure of proof, the Public Service Commission was justified in making the order requiring the carrier to exact only the rates prescribed by the laws of this State for intrastate commerce, and its finding and order should be affirmed.

REVELLE, J.

(concurring). — I concur in the affirmance of this judgment, and in the learned opinion of our Brother Walker. Shipments consigned from one point in this State to another point in this State are intrastate shipments, unless it is the intention of the shipper to reconsign same and extend them beyond the State line; or unless the shipment is of such a character and made under such circumstances that it necessarily must, regardless of the shipper’s intentions, extend beyond the line. In either of such cases the shipment is an interstate shipment; but neither of these conditions prevails in the present case.