source: Caselaw Access Project

author: LAMM, C. J.

license: Public Domain

text:
    THE STATE ex rel. MISSOURI SOUTHERN RAILROAD COMPANY v. PUBLIC SERVICE COMMISSION OF MISSOURI.
    In Banc,
    July 2, 1914.
    1. PUBLIC UTILITIES ACT: Interpretation. The Public Utilities Act of 1913 evidences a departure (or at least an advanced thought) in public policy in dealing with common carriers and public utilities, and touches, at so many vital points, so many vital and open questions, and is such a brave and deserving attempt to provide a speedy and sensible scheme for settling controversies, prevalent, obstinate, old, raw and inflamed, that wisdom demands that its judicial construction proceed with discriminating caution; and it is so vast and intricate, that it cannot be construed all at once, and hence the better course is to build up a construction step by step, and to that end decide nothing except what is precisely necessary to a determination of vital questions raised in each concrete case.
    2.--: Liberally Construed: Caution. The Public Utilities Act of 1913 is to be liberally construed to further its life and purpose; in fact, it fixes its own rule of' interpretation, wherein it says (Sec. 127) it “shall be liberally'construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities;” and the ground on which a judgment thereunder is to rest being new, courts should sound at every step and look to the past as well as the future to get the right point of view and see if the ground is solid.
    2. -: Harmonious Whole: Related Provisions. The words in one section of a statute are to be construed in connection with other provisions relating to the same subject-matter; and the intendment and scope of an act are of value in illuminating any particular provision thereof.
    4. -: Scope: Railroad Rates. A survey of the whole of the Public Utilities Act of 1913 demonstrates that it was intended to occupy the entire field on given phases relating to rates that may be charged by common carriers and other public utilities and the service to be rendered by them.
    ■5. -: -: Requirement for Equipment and Service: Implies Power to Fix Charges. It is to be expected in every well-rounded utilities act which invests in a functionary ot the State power to prescribe and coerce service and equipment, that it also contains corresponding provisions vesting such functionary with power to regulate income and fixed charges.
    '6.--: Railroad Rates. The Public Utilities Act of 1913 (Sec. 47) delegated to the Public Service Commission power to fix and enforce railroad passenger or freight rates, either above the maximum or below the minimum rates fixed by former legislative enactments, whenever, in any particular case, such existing rates do not provide a “reasonable average return on the value of the property actually used in the public service” by the corporation.
    7. -: Public Service Commission: Legislative and Judicial Powers. The Public Service Commission has neither judicial nor legislative powers, but is a part of the administrative arm of the government, and as such has no power to repeal a statute or declare it unconstitutional; but it does have power upon inquiry and careful investigation, to exercise the legislative function delegated to it to fix railroad rates, either by increasing or decreasing them, according to the principles of justice prescribed by the act, and to enforce those rates; but until it exercises that power, the prior rates fixed by statute remain in force.
    Mandamus.
    Writ allowed.

      J. B. Darnels for relator; E. A. Rozier, O. L. Cravens, R. A. Hope, Thomas R. Morrow, 8. H. West, 8. W. Moore, O. M. Spencer, J. M. Bryson, J. W. Jamison, W. F. Evans, J. L. Minnis, R. A. Brown, Lon O. Hooker, Martin L. Clardy, T. L. Philips, of counsel.
    (1) All of that part of section 47 of the Public Service Commission Act of the State of Missouri under consideration in this case was copied verbatim from the Public Service Commissions Law of the State of New York, and in adopting the language of the New York statute the Legislature is presumed to have adopted the interpretation theretofore placed upon it by the commissions and courts of New York. Laws New York, 190-7, chap-. 429; Laws New York, 1910, chap. 480; Laws New York, 1911, chap. 546; Knight v. Raw-lings, 205- Mo. 412; State ex rel. v. Miles, 210 Mo. 146; Skouten v. "Wood, 57 Mo. 380; Skrainka v. Allen, 76 Mo. 389; Snyder v. Railroad, 86- Mo. 613. (2) Both the Public Service Commission of the State of New York and the Appellate Division of the Supreme Court of that State had construed the law now before this court for construction prior to its enactment in this State, and had construed it to confer upon the Commission power to change statutory rates, and this construction was placed upon it when the law of New York was, as originally enacted in 1907, and when it did not contain the clause “notwithstanding that a higher rate, fare or charge has heretofore been authorized by statute.” 2 Public Service Commission Rep. N. Y., 2, District, 78; 140 App. Div. (N. Y.) 839. (3) All statutes of Missouri fixing maximum charges for carriage of freight and passengers are repealed by the Law of 1913, creating the Public Service Commission, because they are in conflict with the last-mentioned law, at least in so far as they undertake to prescribe charges that may not be increased. The purpose of the Act of 1913, creating the Public Service Commission was to create ah administrative board that should have the power from time to time to-fix all charges for carrying" freight and passengers regardless of any previous laws. Henderson’s Tobacco Company, 11 "Wall. 657; Mining, etc. Co. v. Gardner, 173 U. S. 123; Constitution of Mo., art. 13, sec. 14; Laws 1875, 112; R. S. 1890, secs. 1192, 1194; Laws 1887, p. 17; R. S. 1899, sec. 1136; Laws 1903, p. 132; R. S. 1909, secs. 3187, 3251, 3252, 3253; Laws 1911, p. 162; Coal Co. v. Railroad, 52 Fed. 716 -, Railroad v. Jones, 37 N. E. 247; Railroad Com. v. Railroad, 170 Fed. 225; Gregg v. Laird, 87 Atl. 1111. (4) If the legislative intent was to authorize the commission to reduce rates below the maximum rates prescribed by statute without conferring upon it the power to increase rates above such statutory rates, the enactment is void because it deprives the petitioner of the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States, and deprives it of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of section 30' of article 2 of the Constitution of the State of Missouri. Railroad Commission Cases, 116 U. S. 331; Dow v. Beidelman, 125 U. S. 689; Railroad v. Minnesota, 134 U. S. 458; Reagan v. Loan & Trust Co., 154 U. S. 390; Smyth v. Ames, 169 U. S. 466; Railroad v. Railroad Commission, 196 Fed. 800; Trustees v. Gas E. L. & P. Co., 191 N. Y. 123. (5) If the maximum freight or passenger rates, or the maximum freight and passenger rates prescribed by the statutory laws of the State of Missouri in effect on and prior to March 16, 1913, are in fact confiscatory of the property of petitioner (and for the purpose of this case they must be presumed to be), such laws as to this petitioner were and are void, and do not constitute a bar to the right of the commission to fix rates. Authorities under point 4. (6) If section 47 of the Public Service Commission Act is susceptible of two constructions, one of which renders said section violative of the petitioner’s constitutional rights, and is therefore void, the court will adopt that construction which will sustain and uphold the statute rather than the construction which would render it void. Gregg v. Laird, 87 Atl. 1111; State ex rel. v. Mason, 153 Mo. 23; Kenefick v. St. Louis, 127 Mo. 1; People v. Bradley, 207 N. Y. 592; U. S. v. Delaware & Hudson Co., 213 U. S. 366; Bank v. Des Moines, 205 U. S. 511.

      E. J. Bean for respondent.
    (1) The Public Service Commission law did not repeal sections 3232, 3241, 3244, 3246, Revised Statutes 1909; therefore, the Public Service Commission had no authority to permit relator to increase its rates and charges above the amounts fixed by the statutes of this State, and the demurrer of respondent should be sustained. Sections 3232, 3240, 3241, 3244, 3246, 3258, R. S. 1909; Laws 1911, p. 162; 1 Lewis’s Sutherland, Statutory Construction (2 Ed.), 465; MeGrew v. Railroad, 177 Mo. 542; State ex rel. v. Walbridge, 119 Mo. 389; Manker v. Faulhaber, 94 Mo. 439. (2) Authority cannot lawfully be delegated to the Public Service Commission to repeal a statute which establishes and fixes a maximum rate for railroad rates or charges. Railway v. Railroad Commission, 161 Fed. 985; Field v. Clark, 143 U. S. 694. The Legislature may not delegate its purely legislative power to a commission, but having laid down the general rules of action under which a commission shall proceed it may require of that commission the application of such rules to particular situations and the investigation of facts with a view to making orders in a particular matter within the rules laid down by the Legislature. Interstate Commerce Commission v. Transit Co., 224 U. S. -194; Railroad v. Gill, 156 U. S. 663; Reagan v. Farmers L. & T. Co., 154 U. S. 362. (3) The Public Service Commission is an administrative body and has no judicial power, hence it cannot adjudge the maximum rate laws unconstitutional because confiscatory to the relator.
   LAMM, C. J.

Mandamus. Original proceeding. Relator is a domestic corporation owning and operating, as a common carrier of freight and passengers, a railroad of fifty-four miles in this-State, beginning at the town of Leeper in Wayne county and running thence northwestwardly through parts of Wayne and Reynolds, ending at the town of Bunker in the latter.

In July, 1913, relator as petitioner made to, and filed a complaint with, the Public Service Commission. That complaint was under the Public Utilities Act. [Laws 1913, pp. 557-651.] In substance it set forth relator’s domestic incorporation as a railroad company, its ownership and operation of a railroad wholly within the State and more than forty-five miles in length; that it was engaged in the business of transporting freight and passengers as a common carrier for hire; that under authorized rates prior to 1905 its earnings for such service produced a sum barely sufficient to meet the cost and expenses of the service, thereby resulting in an inability to create any reserve therefrom for surplus or contingencies, and an impossibility of making a reasonable return on the value of the property actually used in the service; that the rates designated by the Act of 1907 for freight and the maximum of two cents per mile for passengers would be insufficient to yield any compensation therefor and would be unreasonable, unjust and confiscatory; that it was entitled by law to a reasonable average return on the value of the property actually used in its public service, and further entitled to a reservation from its income of a sum sufficient to keep its property in a fair state of repair, and also sufficient for surplus and contingencies; that its road lies in a rough country, has sharp curves and heavy grades, and that the population served by it is limited and scattered; that the rates prescribed by statute are insufficient to meet the actual cost of operation; and that the complaint is under section 47 of the Public Utilities Act of 1913.

It then went on to ask the commission to increáse relator’s service rates above those prescribed by statute and to determine the just and reasonable compensation which petitioner thereafter would be entitled to receive for that service, and, to that end, that a hearing be granted, etc.

The complaint filed before the commission was verified by affidavit and no question was made on its form or sufficiency in allegation of fact.

It seems, under protest and after filing that complaint, relator put into effect (under the orders of the commission) rates not in excess of the maximum ones prescribed by the Laws of 1907; that under protest it has continued such rates, although alleged to be unreasonable, unjust and confiscatory of relator’s property. It appears (the commission doubting its own authority) that although relator pressed its complaint, it could get no hearing on the merits and that finally in April, 1914, the commission, having taken time to consider, reached a conclusion and entered its order refusing to heár evidence. Accordingly it dismissed the complaint, giving as reason (whereby weighty matter hangs, to-wit) that it had no power to allow or order an increase in rates in excess of the maximum rates prescribed by statute. The order recites, inter alia, that in its (the commission’s) judgment it is without authority to .grant the relief prayed, and this (quoting) “regardless of any evidence that may be submitted and” (regardless of) “the fact'that complainant may show such rates, fares and charges to be unjust, unreasonable and confiscatory of its property.”

Making averments and narrations to the effect above, relator made due application here for a writ of mandamus compelling the commission to proceed as speedily as practicable with the hearing of proofs to be offered in support of relator’s said complaint and to make such findings as the proofs warrant without respect to the rates fixed by statute.

"Waiving in writing notice or the service of a copy of the application for mandamus (vide rule thirty-four) the commission entered its volutary appearance, Avaived issuance and service of an alternative -writ, agreeing that the petition be treated for all purposes of the case as and for such alternative writ.

Presently respondent filed its demurrer based on four grounds (the three last of which may be taken as specifications of the first), to-wit, the first being that the petition does not state facts sufficient to constitute a cause of action. The question hinges on lack of authority and this, in turn, invoUes questions of interpretation, construction and repeal.

The statute most immediately held in judgment is the first part of section 47 of said Public Utilities Act, reading:

“Whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates, fares or charges demanded, exacted, charged or collected by any common carrier, railroad corporation or street railroad corporation for the transportation of persons or property within the State, or that the regulations or practices of such common carrier, railroad corporation or street railroad corporation affecting such rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in anywise in violation of any provisions of law, or that the maximum rates, fares or charges, chargeable by any such common carrier, railroad corporation or street railroad corporation are insufficient to yield reasonable compensation for .the service rendered, and are unjust and unreasonable, the commission shall Avith due regard'among other things to a reasonable average return upon the value of the property actually used in the public service and to the necessity of making reservation out of income for surplus and contingencies, determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, notwithstanding that a higher rate, fare or charge has been heretofore authorized by statute, and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be observed.”

Other sections of that act and other statutes are somewhat drawn within the lines of the discussion and will be noticed so far as necessary in the course of the opinion.

The cause was submitted on arguments and briefs on the demurrer, hence the record presents a single and clean-cut issue of law, to-wit: Does the Public Utilities Act of 1913 give the commission power (if the facts ascertained on due hearing justify the exercise of it) to allow relator- a freight and passenger rate in excess of that prescribed by elder statutes'? If so, the absolute writ should issue. If not so, it should be denied.

I. ' Some pertinent generalisations as a foreword.

(a) The statute involved is new. Referable to' the police'power, it evidences a departure (or at least an advanced thought) in public policy in dealing with common carriers and public utilities in Missouri. It touches at so many vital points so many vital and open questions; it is such a brave and deserving attempt to provide a speedy and sensible scheme for settling controversies so prevalent, so obstinate, so old, so raw and inflamed between public utility companies and their patrons (to-wit, the public) that wisdom demands its judicial construction proceed with discriminating caution. It is so vast and intricate that it cannot be construed all at once and all doubts dispelled slap-dash in a lump as science now kills mosquitoes. The better course is to build up a construction by evolution, step by step and, to that end, decide nothing except what is precisely necessary to a determination of vital questions raised in each, concrete case. Peradventure by that safe and conservative course important phases of the statute will in an orderly way and in due time be digested and so assimilated by sound interpretation that all its remedies will eventually be advanced and all mischiefs within its purview be retarded.

The views of Mr. Justice Miller, speaking for all his brethren, on the unwisdom of attempting an authoritative and complete definition of a phrase in the fourteenth amendment to the Federal Constitution are apposite, to-wit, that the annunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition. [Davidson v. New Orleans, 96 U. S. 97.]

(b) In one of its features (the duty of courts to relegate gas-rate controversies to the Public Service Commission in the first instance) the statute has been before this court once before. [State ex inf. Barker, Atty. Gen., v. Kansas City Gas Co., 254 Mo. 515.] We there held it was a highly remedial statute which, on well-settled legal principles, was to be liberally con-' strued to further its life and purpose. It was pointed out that the lawmaker had written in his law his own rule of interpretation, to-wit, that it ‘ ‘ shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.” [Sec. 127.] -It was declared in that case that the proper judicial attitude toward the statute was not a frosty or a questioning one — contra, it was an attitude running on all-fours with the wise public policy evidenced by it. It is, I think, in the dry light of such doctrine the problem presented to us in the instant case must be solved.

When the ground on which a new judgment is to rest is new and unexplored, as here, it is well enough for courts to sound at every step and look to the past as well as the future to get the right point of view and to see if, peradventure, the ground is solid; but after that has been said and everything else has been said that can well be said on the wisdom of judicial caution and circumspection where the situation is new, it should be allowed as good and acceptable doctrine that courts should not adhere to theories, however fond and familiar, when the lawmaker (within constitutional limitations) has exploded them by a new statute. Indeed in that behalf it is much the same as a philosopher has said of custom: “A forward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times are but a scorn to the new.” [Bacon — Of Innovations.} It is a lovely poetical concept and likewise a comfortable and wholesome judicial concept that: “The thoughts of men' are widen’d with the process of the suns.”

(c) As said under subhead a, this paragraph, it is well to give heed to the precise questions necessarily involved and to exclude all others. For instance, we have not here a case of a railroad engaging in interstate commerce where the facts may show that an intrastate rate is bound to effect or may within reason affect an interstate rate, or where arbitrary corporate bookkeeping is kept on a plan involving- shifts of credits and debits because of inter-relations and interdependence between those rates. Nor have we a case of a public utility where a service rate was established at the outset, or later,-by valid contract of by valid charter provisions. Hence, what we have to say does not relate to any such case. They can take care of themselves when such questions are in judgment;'for, as seen, the instant case is unembarrassed with complications of that character.

II. Of other statutes and other sections in pari materia with said section 41.

A correct perspective of the question in judgment cannot be had without reference to other statutes and other sections of the Public Utilities Act in pari materia with section 47. Attend to that feature.

(a) By the general statutes railroads are classified into classes A, B, C, and D. [B. S. 1909, sec. 3231.] Belator belongs to class G,'that is, to railroads of a greater length than forty-five miles and not trunk lines, or leased, owned or controlled by a trunk line. By section 3232, ibid., railroads in class 0 are limited to passenger rates not exceeding two cents per mile, and by the next section a violation of that provision is made a misdemeanor to be punished by a fine of not less than $100, or more than $500. By section 3240 freights are' classified; and by the next section maximum freight rates for carload lots are prescribed; and by the next section the violation of the provision relating to such maximum freight rates is made a misdemeanor to be punished with a fine not exceeding $5000. By sections 3244 and 3246 rates are prescribed for the class to which relator belongs for carrying melons, apples, pears, strawberries, peaches and grapes and other berries in carload lots. The violations of the provisions of section 3246 are made misdemeanors and each offence is punishable by a fine not exceeding $1000. Other sections provide other regulations of rates and their violation are made misdemeanors. By section 3258 power was given to former boards (now defunct), that of Eailroad Commissioners, or Eailroad and Warehouse Commissioners, to classify freights, and by section 3251 to prescribe freight rates. By section 132 of the Public Utilities Act the duties and powers of the Board of Eailroad Commissioners and the Board of Eailroad and Warehouse Commis-. sioners are to be exercised and performed, by respondent in relation to things and corporations, etc., coming within the provisions of the act. Having expressly repealed certain sections of the general statutes, the act last mentioned has this repealing clause, to-wit (Sec. 139): “. . . and all other acts and parts of acts in conflict with this act are hereby repealed. The provisions of this act are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws.”

In addition tó the foregoing and somewhat germane to the investigation of questions raised, is section 3179, Revised Statutes 1909, making railroads public highways and companies running and operating cars thereon common carriers. That section' prescribes that charges for services in transporting of freight shall be reasonable and just, and all unreasonable and unjust charges are prohibited and declared unlawful.

And another, to-wit, section 3187, Ibid, requiring carriers to post for public inspection freight rates established by them not in excess of maximum rates now or hereafter established by law, interdicting an advance in rates except on notice, etc., permitting a reduction of rates of which notice shall be given, and precribing that it shall be unlawful to charge a larger rate than the established rate “the same not being in excess of any statutory maximum rates now or that may be hereafter in force’'’ and it is made the duty of the Railroad Commissioners to see that such rates are reasonable and just, etc.

Such is a faint but sufficient bird’s-eye view of the former statutory scheme relating to freight and passenger rates, and of the express provisions of the Utilities Act for clearing away obstacles and connecting up its scheme with what remains of the former one. It will be seen that by the former scheme the statute itself prescribes a fixed maximum passenger rate of two •cents per mile for railroads of relator’s class and interdicted a rate in excess of that and prescribed a like maximum freight rate for carload lots and a like interdiction. It gave the old boards (now defunct) regulatory power over at least some freight rates.

In this condition of things it was argued by reía-. tor’s counsel in part (i. e., if we get the run of a highly technical and ingenious argument) that those defunct hoards, to which respondent succeeded, themselves had authority under the old system to vary maximum rates prescribed by statutes xrp as well as down. On such postulate, counsel conclude that the power denied by respondent to now exist is not a new or strange authority but comes to respondent by inheritance from the former system. Respondent’s counsel argues contra. Such particular contention we think it would be unprofitable to decide. It is possible that by critically analyzing' and comparing many intricate and expansive provisions of prior statutes the power to- vary upward a prescribed statutory maximum freight rate might be pieced out or implied from detached phrases, sentences or provisions, but in doing so care would have to be taken not to torture those statutes by a too labored or refined construction, remembering the while the rule requiring all their provisions to be construed harmoniously when possible. In reason it is much more likely that it would be found that the broad trend of intendment in the old statutory scheme runs with respondent’s contention. However, being persuaded that neither the one view nor the other is controlling in the determination of the instant case we put the question aside — especially as it does not touch passenger rates. Let it be reserved to be decided when, if ever, some case comes here breaking on it as decisive. The most favorable view for respondent is that relator must stand or. fall on the proposition that the power to change upward a statutory maximum passenger or freight rate arises strictly on the construction of the new law, the Public Utilities Act, if at all. Respondent cannot complain if we let the case proceed on that theory. Whether relator can complain or not, the sequel will show. Accordingly let the case so proceed.

We now come to a matter of more emphasis, to-wit, a consideration of other sections of the Public Utilities Act in pari materia with section 47. There is a rule of statutory construction to which we' will recur presently making’ the intendment, the scope and philosophy of the lawmaker’s scheme, as a symmetrical whole, of value in illuminating’ any particular provision of that scheme. The maximum is: that the best construction is that which arises on the whole instrument. Hence the words of section 47 must be construed in connection with other provisions of the act relating to the same subject-matter — this under a doctrine related to that of noscüur a sociis. Attend to a summary, rigidly condensed, but sufficient I think for oúr purposes, of related provisions of the Pfiblic Utilities Act.

(b) It elaborately laid its foundations broad and deep, beginning* at the beginning and step by step with the pains and patience of evolution covers its grounds. Thus: in section 2 it defines the terms “railroad,” “railroad corporation,” “common carrier,” “transportation of property,” “transportation of persons,” “public utility,” “service,” “rate” — all this for the purposes of finally and 'effectually dealing with the entities covered by those terms. On the theory it deals with business affairs of every day moment and demanding immediate correction by common-sense methods; it selects, free from whims' of party politics and popular elections, and through the highest executive officer of the State, a commission; provides that commission with counsel learned, in the law; gives it a swarm of drastic and flexible powers apparently on every conceivable angie of the subject-matter; provides it with a seal; makes it one of the great administrative departments of the State; strengthens it with powerful aids in engineers and experts, and, by appropriation acts, wisely puts at its disposal sufficient money to seek out the facts and make the act operative.

Section 16 prescribes that the “jurisdiction” of the commission, its supervision, powers and duties shall extend to all railroads and all transportation of persons or property, to common carriers, and to all persons and corporations engaged in the transportation of property or freight and to public utility corporations. By other sections we see that its “decisions ’ ’ are to be published for public information and use and are to be conclusive, unless modified, on rehearing or review; that it is. given compulsory process, by other sections, for witnesses and papers; that its orders are to be obeyed under pains and penalties.

By section 27 it is ordained that common carriers shall furnish such service and facilities as shall be safe and adequate and their charges “shall be just and reasonable and not more than allowed by law or by the order or decision of the commission, made as authorized by this act.” Moreover, charges for transportation of passengers or property “in excess of that allowed by law or by the order or decision of the commission” are prohibited.

By the next section switches and sidetrack connections are put within its jurisdiction.

By the next, printed tariff schedules are to be filed with the-commission, and kept open to public inspection.

By section 31 schedule rates so filed may not be changed without the order of the commission.

By section 35 a common carrier may not engage in transportation of passengers or property without having filed such schedule of rates — this under pains and penalties.

By section 43 the commission is given the power to ‘ ‘ examine ’ ’ common carriers, railroads and railroad corporations and to keep informed as to their condition, capitalization, franchises and the manner in which their lines and property are managed and conducted with respect to adequacy, security and accommodation of service and their compliance with the provisions of law and the orders and decisions of the commission.

By section 44 they are compelled to report to the commission in a form and terms and at times and with specifications ordered by it.

By section 45 the commission is charged with the duty of investigating accidents, and the common carrier or corporation is obliged to give notice of snch accidents to- the commission.

By section 46 plenary power of investigation as to acts or omissions is given.

Then follows section 47 (part of which has been hereinbefore set forth). That section goes on with minute particularity to cover a large part -of the field of railroad business, bringing it within the scope of the hearings and orders of the commission.

By section 48 it is given power to stay increased rates.

By section 49 it may order repairs or changes.

By section 50 it is given power to abolish or permit grade crossings.

By section 51 it has power to order changes in time schedules and require the running of additional cars and trains.

By section 52 it is given power to establish a system of accounts for railroads.

By section 53 a railroad may not be constructed except on the certificate of the commission that the present or future public convenience' and necessity require such construction.

By sections 54, 55, 56, 58- and 59, the issue of stocks, bonds, and notes, .the transfer of franchises or stocks, the sale of franchises or stocks, the approval of issues of stocks, bonds or other forms of indebtedness, an account of the disposition of stocks, bonds, etc., are all put within the control and supervision of the commission.

By section 60 the commission is given a power we greatly stress, to-wit, the power to ascertain the value of the property of every railroad corporation, and. of every fact which in its judgment may or does have a bearing on such value, and to mate re-valuations. To that end it may cause a hearing to be held on giving-thirty days ’ written notice at which the corporations to be affected may be heard. The evidence at such hearing is to be put in writing- and certified under the seal of the commission and filed. Its findings on that head are subject to review in court. Among other things section 60 ordains as follows:

“The findings of the commission so made and filed, when properly certified under the seal of the commission, shall be admissible in evidence in any action, proceeding or hearing before the •commission or any court in which the commission, the State or any officer, department or institution thereof, or any county, city, municipality or other body politic and the railroad corporation, street railroad .corporation or common carrier affected may be interested, whether arising under the provisions of this act or otherwise, and such findings when so. introduced shall be conclusive evidence of the acts therein stated as of the date therein stated under conditions then existing, and such facts can only be controverted by showing a subsequent change in conditions bearing upon the facts therein determined. ’ ’

By section 61 power is given, on hearing, to require “depreciation” accounts in accordance with the rules and regulations prescribed by the commission and the corporation engaged in the transportation of freight or passengers is required to conform to the rates of depreciation fixed or determined by the commission and to set aside the moneys so provided for “out of earnings and carry the same in a deprecia-' tion fund and expend such fund only for such purpose and under such rules and regulations” as the commission may prescribe.

By section 63 such public service corporations must obey every order or decision of the commission made under the authority of the act so long as the same remains in force; and every failure to obey, results in a forfeit to the State in a sum not less than $100' nor more than $5000', for each and every offense, .and every violation of any such order is deemed a distinct offense and, in case of continued violation, every ..day’s continuance is deemed a distinct offense and officer’s and agents procuring, aiding and abetting in such •violation or failing to obey such orders are made guilty ,of a misdemeanor.

By other provisions a court review of the commission’s findings is provided.

By section 108 any corporation, person or public •utility is given the right to complain on the same ■grounds given to other parties.

By section 116 the commission is given power to -require a public utility corporation to maintain and .operate its line, plant, system, equipment, apparatus, Tracks and premises so as to promote and safeguard The health and safety of its employees, passengers, customers and the public.

TIL ,Of the demurrer.

Section 47 of the Utilities Act is not so plain and certain as to need no borrowed and interpreting light from.other sections of the act or from kindred elder statutes. Hence the demurrer, to be well ruled, must keep all the premises in view. We have come to the conclusion it does not lie and that a peremptory writ must go. This, because:

(a) It is apparent from the outline of the Utilities _ Act. given in paragraph two that it is a radical departure from the policy of former statutes.- We need not .go into,Retails; for the thing speaks for itself. Whatever rngy ibe the case in other particulars, it, subject to constitutional provisions, occupies the entire field on .given phases relating to rates and service. This becomes clear either from a study of the language of section 47 or by getting at the meaning of that section from the broad scope, the philosophy and intendment of the whole act.

(1) Take the latter proposition first. A court would •expect to find in a rounded out Utilities Act, made by a just and intelligent lawmaker, as here, that such act approached the subject-matter of service and rates from several angles. It would expect to find that the act justified its existence by impliedly, at least, recognizing that the utility with the public is vitally interested in service and rates; next that controversies and frictions might exist (or would be expected to spring up on that score) detrimental to both; next that the •statutory scheme theretofore existing, if any, not only for settlement of those controversies but for the protection of the owner of the utility as well as of the public in the matter of service and rates had become antiquated or inadequate. Such court would expect to find that the act runs on the theory that the corporation, in order to spend, must be allowed to gather— that (if we may be allowed a homely figure) the intake bunghole in the corporate barrel would be open simul-taneously with the outgo spigot. Without being driven "to it, willy nitty, no court would expect to find in such .act the pestiferous idea crystallized into law that the .solicitude of the lawmaker was exhausted, or stopped short, at prescribing a multitude of onerous duties and a multitude of substantial outlays for the corporation. 'Contra, it would expect to find a corresponding legislative solicitude in the line of providing the ways and means essential to carrying out the orders of the commission on safe and adequate service. Moreover, such court would expect to find evidence in such Utilities .Act that the lawmaker knew a corporate money chest did not replenish, itself in some miraculous way, like the widow’s cruse of oil, for instance; knew that funds for safe and adequate service must directly or indirectly, sooner or later, spring from freight rates and passenger fares. Otherwise the utility corporation would be headed by the act itself toward death through starvation — an absurd and unthinkable hypothesis.

In that view of it a court would naturally expect the lawmaker would provide a plan for a corporate income out of which it must eventually not only get returns on its investment but meet the outlays the act contemplated the commission might or would exact.

Now the act in question comes up to those judicial expectations. Recognizing that a negligently wasteful corporate life, a diseased or dishonest corporate life, or a slovenly lack of care in safety and adequacy of service are matters of- public concern, are necessarily reflected in rates and income, and that regulation lies within the police power, the Legislature, as seen in paragraph two, charged the commission with the duty of supervision over corporate bookkeeping, stock issues, bond issues and creation of other indebtedness, sales of franchises as well as in matters of safety and adequacy in service. In fine it gave the commission plenary power to coerce a pbiblic utility corporation into a safe and adequate service and the performance of the public duty unto which its franchise bound it. On the other hand, the act does not contemplate a confiscation of corporate property, and we include in the term “property” the right to earn a reasonable return on its investment. Looking* to that end, the act undertakes to balance outgo with income. It covers that field. It proceeds on common sense and scientific lines by providing a plan for the valuation of corporate property in section 60. We pause to ask: Was that to be “lost motion” — mummery? What was it for except to get at the ultimate fact of what would be a passenger fare and freight rate yielding a “reasonable compensation”; or (to nse tbe significant language of section 47), “a reasonable average return upon the value of property actually used in the public service?” What was it for except also to get at a rate sufficient to make an income but of which the corporation could carve a reservation “for surplus and contingencies ’ ’ as provided in section 47 ? What could it be for except to get at such rate as would be sufficient to create an income from which the corporation could carve out a “depreciation account” to be used and expended'under the eye of the commission as provided in section 61 ?

We take it that a decent respect for the Legislature precludes the theory that the commission was given control of expenditures and denied control of income, the two being inseparable in the very nature of things. Moreover, it precludes the theory that the commission was given power to ascertain a just rate and then (wonderful to relate) was denied power to enforce it — that prior legislation controlled the rate, while the commission controlled the outgo, thereby providing an upper and nether millstone with the corporation between. Therefore it follows that, if the hand of the Legislature by former acts was so laid on rates that no power existed to increase a hard-and-fast maximum general statutory rate, (established to cover all cases and arrived at by legislative guess, however intelligent the guess may be, as seems to be the case at the time the Utilities Act was passed), the conclusion is irresistible that the Legislature intended its hand should be lifted, and that by general rules and methods prescribed for the guidance of the commission, as here, it was intended that it first ascertain the facts and next should apply them in regulating rates, up or down.

(2) But taking a narrower view and one closer-home, a careful analysis of section 47 leads us to the same conclusion. Certainly there are no words in that section necessarily compelling an opposite conclusion, and though there is some unfortunate obscurity, yet all its language may be harmonized with the conclusion that the commission has that power.

(3) The view just announced is fortified by facts of current history of which we may take judicial cognizance, to-wit: At the time of the passage of the Utilities Act the statutory maximum freight and passenger rates in this State were challenged in the Federal courts as unconstitutional, because confiscatory. In aid of that litigation an ambitious attempt had been made to present to those courts the facts pro and con on that issue. In June, 1913, in the Supreme Court of the United States (vide, Missouri Rate Cases, 230 U. S. 474), an opinion was handed down sustaining those laws on the state of the proof presented by the record as to named railroad companies and ordering* the bills (injunctions) dismissed as to them respectively without prejudice, but it was also held that our hard-and-fast statutory rates were confiscatory as to certain named companies. There had existed grave doubts in the well-informed public mind on the validity of those rates. It was feared that the facts would show them confiscatory in some instances or possibly in all. Moreover, it was recognized that a mere legislative opinion on what a just rate should be (with the chance of the facts upon which the opinion was based being found non-existent or untrue in part by the courts) was an uncertain and unscientific basis for a rate, although the right under the police power to prescribe rates is taken as a legislative right. The history of the times shows (and we have no call to pretend ignorance therein) that a scientific plan of valuation of railroad properties actually used in the public service had come to be deemed an essential element at getting at just compensation, thereby excluding fictitious or sentimental values, mere “wind and water,” on one side, and including actualities on the other. Obviously the utilities act sprang from the womb of such conditions and a sensible judicial interpretation of that act on broad lines ought not to ignore those conditions. The demurrer, we think, does ignore them. To overrule the demurrer recognizes them.

(b) This opinion might close at this point, but it may not be amiss to make some other observations- and announce some certain other propositions in point.Thus:

(1) Eespondent disavows power to repeal a statute or to declare a statute unconstitutional. That disavowal is correct. The repeal of a statute is a legislative act. To declare a statute unconstitutional is a judicial act. In this State all judicial power is vested-in the courts.. [Sec. 1, art. &, Constitution.] And legislative power is vested in the General Assembly. [Sec. 1, art. 4, Constitution.] So, respondent claims only administrative powers. That claim is justified. But neither those disavowals nor that claim settle the question on demurrer.

(2) Section 47 of our Utilities Act is borrowed from a statute of New York. It varies from that, but the variations are not of substance on any question involved here. In New York the original statute.was amended. We borrowed it with the amendments. Assuming the rule to apply, namely, that .when a statute is borrowed by a sister state it is adopted not only in verbiage but with the construction put upon that verbiage in the state of its origin (agreeable to which the authorities run) yet we are not cited to any authoritative New York decision interpreting the statute as amended. The statute was before New York courts prior to amendment and so far as that court announced doctrine, it does not run counter to the conclusions reached in this opinion, nor do the amendments do so. [People ex rel. v. Public Service Commission, 140 App. Div. (N. Y.) 839.]

(3) In so far as elder statutes undertook to make hard-and-fast rates, charges that might be lowered but not raised so as to conform with ‘ reasonable compensation,” or “reasonable average return on the value of the property actually used in the public service” by the corporation, it must be held they were inconsistent and in conflict with the Utilities Act in those particulars and stand modified by the later act when the facts warrant, which later act, under canonized rules of construction, and as a younger act covering’ the field, must control. It is not necessary for us to hold that all statutory rate provisions were, eo instante and ipso facto, repealed. It is sufficient for us to hold and we do hold that the Legislature could delegate to the commission, as an‘administrative body, the power to ascertain facts warranting a readjustment of rates in accordance with general statutory rules announced by the lawmaker (as is the case here), and that when such rate was so ascertained the modification of rates contemplated by the statute might take effect under the orders of the commission despite the elder statutes. This leaves statutory maximum rates in force until facts established before the commission call into play the modifications contemplated by the Utilities Act. In m> other way can the statute be given vigor and be made a complete and rounded scheme adjusting itself to meet the form and pressure of the facts in each particular case and subserving right ends. If the result reached aids- a crippled and distressed public service corporation on the one hand in a given case, or a distressed and harrassed public on the other in another given case, then, in either event, justice is done. It cannot be expected that this court will take color from corporate prejudice, if such exists. It ought not to be expected that through fear of popular disfavor we would coyly toy with a situation. If there are nettles to be handled the right plan is to grasp them with a firm hand. The sting is less. We sit here, as we see it (and take leave to say so) to administer justice to individual and corporation, those in power and those out, the weak, the strong, the high, the low, indifferently, peradventure fearing none and fawning on none. The claim so made for ourselves we accord unstintingly to the Honorable Public Service-Commission of the State of Missouri. To that end the commission should set aside their order dismissing the complaint, reinstate the proceedings, set a day and place for a hearing and proceed to take the proofs to the end that the matter may be disposed of as the facts warrant.

The curious may find other legal sources of our judgment in the authorities furnished in counsel’s briefs and set forth in the headnotes of our reporter. The demurrer is overruled.

Let an absolute writ of mandamus go.

All concur.


author: Richardson, Judge,

text:
    Reed, Plaintiff in Error, v. Conway, Defendant in Error.
    1. A contract entered into, in behalf of the United States, by the surveyor general of Missouri and Illinois, with one of his deputy surveyors, for the surveying of the public lands, is the contract of the United States government and not of the surveyor general.
    2. The surveyor general has no power, it seems, to remove one of his duly appointed deputy surveyors except for negligence or misconduct in office.
    3. Since, however, the only duties of a deputy surveyor are to make surveys under special contracts, his removal, where he has no such contract, although wanton and without cause, would give him no cause of action against the surveyor general.
    4. After the surveyor general has entered into a valid surveying contract with a deputy, the surveyor general has no right, without cause, to remove such deputy with a view to deprive him of the benefit of his conduct, or to annul the same.
    5. Where, however, the surveyor general, in interfering with the deputy in the execution of his contract, acts in good faith and without malice, the fact that he acts unlawfully will not give to the deputy a cause of action against him. His acts must be malicious to render him liable.

      Error to St. Louis Circuit Court.

      B. A. Hill, for plaintiff in error.
    I. The court acted improperly in turning the plaintiff out of court and refusing to let the jury pass upon the question of malice. The powers of the surveyor of Illinois and Missouri stand upon the acts of 1816 and 1796. He has power to engage a sufficient number of skillful surveyors as deputies, to cause the lands to be surveyed. He was but the recorder of the surveys and the delineator of the plats of surveys. He has no power to survey himself. He may therefore be regarded as the principal deputy, without any power to execute a survey himself. He was then the recording clerk of the deputy surveyors and of the commissioner.of the general land office, and draftsman of the plats and surveys, with power to certify plats for evidence from his records. He was not required to exact any bond from the deputies; he was only empowered to fix their compensation. He had an annual salary and fees for recording and certifying. He has been confounded with the “ surveyor general of Louisiana,” who possessed more ample powers, but was subject to more restrictions. The name of “ surveyor general” lias been appropriated by this clerk of surveys under the act of March 3, 1831, and he erects himself into dictator, an irresponsible judge. Now, he has authority to engage skillful deputies, but no power to exact a bond. I am unable to find any case of removal. The cause of removal was negligence or misconduct only. There are no binding instructions that affect this question. The commissioner of the general land office assumed, on the 28th of July, 1831, to issue instructions under the act of March 3, 1831, to the surveyor of Illinois and Missouri. But although the commissioner of the general land office had power to control the surveys returned certified, upon proper appeal, he had no power to affix the bond to a contract not required by the acts of Congress of 1796 and 1816, and the original instructions of Oliver Wolcott of 1797. There is no objection to the commissioner directing certain rules to be observed with regard to the surveys, but he can not fix a condition to a contract not required by act of Congress. The question here is whether the plaintiff was engaged by the surveyor, Silas Reed, to do the work done. The act does not require any written contract. Warren Reed had a commission as a deputy surveyor; had taken the oath, and had signed the contract for surveying the six townships on the 14th of April, and it was perfected the 14th of May, ten days before Silas Reed left the office, and mailed to Warren Reed at a distance of one hundred and seventy miles from St. Louis. This is evidence not only tending to show, but absolutely showing, that he was engaged to survey the six townships. The evidence also shows that Conway made the same contract with Warren Reed; told him to go on and complete the work on the 10th of October. Conway had no power of removal except for negligence or misconduct.' Although the presumption is in favor of the proper exercise of such a discretion, yet, if it be shown to have been exercised corruptly and with malice to injure Reed, Conway is liable.

      Geyer and Krum & Harding, for plaintiff in error.
    I. This record does not present a case of the improper exercise of the discretion vested in the circuit court in refusing to set aside a nonsuit. The evidence does not establish any contract between the plaintiff and the United States as alleged. There was no contract completed before the defendant entered upon the duties of his office, and he did not assent to or sanction one afterwards. The plaintiff did not perform on his part the contract, which he alleges to have been made, so as to entitle himself to pay for the work he pretends to have performed. There is no evidence of any unlawful act on the part of the defendant, in refusing to sanction or execute the arrangement made by Silas Reed after his dismissal from office. Whenever the law vests any person with the power to do an act, and constitutes him a judge of the evidence on which the act may be done, he is, quoad hoc, a judge, and is exempt from responsibility in a civil action for the exercise of his lawful discretion, however erroneous and whatever his motives. (Yanderhayden v. Young, 11 Johns. 150; Wilson v. Mayor of New York, 1 Denio, 599; 3 Denio, 120.)
   Richardson, Judge,

delivered the opinion of the court.

The abstract of the pleadings, much of the evidence, and a reference to some of the acts of Congress and the regulations of the land department bearing on the questions in this case, are set forth in the report of the case in 20 Mo. 22. When the case was first before this court, the question mainly discussed, and the only one decided, was touching the liability of the defendant, assuming that the plaintiff had a lawful contract as described in the declaration, and that the defendant unlawfully interfered with it so as to deprive him of any benefit from it; and the judgment was reversed because the circuit court refused to instruct that the defendant was not liable unless he not only acted unlawfully but maliciously. It was decided that a ministerial officer, acting in a matter that requires the exercise of his judgment, is not liable in a civil action for any errors of judgment, unless he is prompted by malice or the purpose to oppress and harass the person injured by his conduct. We have been asked to review this decision, and to decide that a ministerial officer is exempt from responsibility in a civil action for the exercise of his lawful discretion however erroneous and whatever his motives may be ; but, after consideration of the arguments of the respondent’s counsel, and an examination of the authorities, it need only be said that we concur in the decision that has been made.

On the second trial the testimony on the part of the plaintiff was substantially the same as on the first; and on the close of the plaintiff’s evidence, the court, at the instance of the defendant, gave instructions that took the case from the jury and forced the plaintiff to a nonsuit. The instructions are as follows : “1. That there is no evidence of the completion of any contract between the plaintiff and Silas Reed, as surveyor general of Illinois and Missouri, obligatory on tlie United States, and which the defendant, as successor of said Silas Reed, was bound to execute on the part of the United States. 2. There is no evidence of any contract made and entered into between the plaintiff and Silas Reed, as surveyor general of the states of Illinois and Missouri, conformable to the laws of the United States and the usages, rules and regulations of the department of the government thereof having charge and superintendence of the public lands. 3. That there is no proof before the jury that the plaintiff was legally authorized to claim the benefits of either of the contracts described in the declaration.”

The instructions do not point to any particular omissions in the proof, nor indicate any particular propositions of law affecting the case, and it is therefore necessary for us to explore the whole bill of exceptions, which is very voluminous, and to examine all the laws, the regulations of the land department, and the rules of the surveyor of Illinois and Missouri, bearing on the subject.

The parol evidence was given chiefly by Silas Reed, who testified that he was surveyor of Illinois and Missouri from March, 1842, to May 24, 1845; that he had been informed by the commissioner of the general land office that, under the appropriation of the 3d of March, 1845, provision would be made for having a portion of the public lands in Missouri surveyed during the next fiscal year; that on the 14th of April, 1845, he appointed the plaintiff a deputy United States surveyor, who took the oath of office as such and received a commission; that the plaintiff was about to start to Dallas county, one hundred and seventy miles from St. Louis, for the purpose of executing a surveying contract, and, to obviate the necessity of returning to St. Louis, he signed the contract mentioned in the declaration — the date and numbers of the townships being left blank; that he received a letter, which was produced, from the commissioner of the general land office, instructing him among other things to contract at once for the surveying of the public lands, but not to contract for more than the apportionment of the appropriation to his district would cover. On the 10th of May, 1845, the contract was dated, the blanks filled, and then signed by the witness. The bond was signed by Edward James as surety, and he approved the security to the bond, and a day or two afterwards mailed to the plaintiff at Dallas county, with a letter of instructions, three sets of the contract and the bond. The object of sending the contract was to have the execution of it attested, and he thought the bond had not been signed by the plaintiff. The defendant took possession of the office on the 24th of May, 1845, and witness saw the duplicate and triplicate of the contract and the bond in the surveyor’s office at St. Louis in July, 1845, and thought the execution of the contract and bond by the plaintiff was witnessed in the field. On the 10th of October, 1845, after the plaintiff had returned from Dallas county, the witness states that he had a conversation with the defendant respecting his brother’s contract of May 10, in which the defendant said he was willing that the plaintiff should proceed with his contract, but insisted that the contract of the Messrs. James should be reduced, as he feared the contracts already made would exceed the appropriation. The parties were informed of the result of this interview, and on the 18th of October the plaintiff, the Messrs. James, and the witness, went to the defendant’s office, who again insisted on a reduction of the James contract, but the witness heard nothing said respecting the contract of the plaintiff; and after this interview the witness saw the plaintiff go to Mr. Sprigg’s desk, who attested the execution of the plaintiff’s bond by the surety, and told the plaintiff that he must make oath to the contract, and thereupon the plaintiff went before a justice of the peace and made the affidavit endorsed on the contract. After the affidavit was made the contract and bond were handed to the witness to be delivered to defendant. On the 15th or 16th of October the plaintiff and the Messrs. James set out to perform their contracts, and, on tbe same day after the witness had parted with them on the boat on which they had taken passage, he went to to the defendant’s office for the purpose of delivering the contract and bond, but did not see him, but saw the original, or a copy of a letter the defendant had written to the commissioner, dated October 13th, in which he stated he had annulled the plaintiff’s contract. He therefore did not then leave the contract and bond, but afterwards, on the 25th of October, sent them to the defendant by Maj. Anderson, and in a day or two afterwards they were returned to him by the defendant through the post-office. The plaintiff returned to St. Louis in February, 1846, and soon after tendered to the defendant the field notes of his survey.

Mr. Sprigg, a clerk in the surveyor’s office, stated that the contract and bond were on the same sheet of paper, and were in the office on the 9th July, on which day he thought they were returned ; that on the 13th of October the plaintiff was in the defendant’s office, and when he came out of it to his desk he seemed pleased, and the witness supposed the difficulty about the contract had been settled; that he pointed out to the plaintiff the defects, which were, that there was no oath to the contract and no attesting witness to the signature of the surety in the bond; but he then witnessed the signature of the surety, who then signed or acknowledged his signature, and young James was the attesting witness to the signature of the plaintiff; that in Silas Reed’s time as surveyor, a bond was required, but no oath. On the 29th of May, 1845, the defendant wrote to the plaintiff directing him to suspend operations under the contract of May 10th until further advised, and on the same day he wrote to the department, desiring to be furnished with copies of letters sent to his predecessor between certain dates, for the reason that it appeared eleven surveying contracts had been made for which he could find no authority in the Office. He stated, in this letter to the commissioner, that he had suspended the eleven contracts of the 10th of May, and gave his reason therefor; to which the commissioner replied, 10th of June, 1845, that the department assumed no authority to interfere with the contracts of deputies, but doubted the propriety of suspending their contracts. The defendant wrote to the plaintiff, October 17th, to consider the contract of May 10th as null and void.

The only acts of Congress that relate to this subject are the act of May 18,1796, entitled an “ An act for the sale of the lands of the United States in the territory north-west of the river Ohio” (Laws, Pub. Lands, part 1, p. 50) — the act of February 28, 1806, entitled “ An act extending the powers of the surveyor general to the territory of Louisiana” (Laws, Pub. Lands, part 1, p. 132) — the act of April 29, 1816, entitled “ An act to provide for the appointment of a surveyor of the public lands in the territories of Illinois and Missouri” (Laws, Pub. Lands, part 1, p. 278) — and the act of March 3d, 1831, entitled “ An act to create the office of surveyor of public lands in Louisiana” (Laws, Public Lands, part 1, p. 489), which it will be proper to notice only so far as it fur nished the material for the instructions framed on it by the commissioner of the general land office, July 28th, 1831. (Laws, Pub. Lands, part 2, p. 915.)

The act of 1796 created the office of surveyor general; made it his duty to engage a sufficient number of skillful surveyors as his deputies, whom he should cause to survey and mark the unascertained lines, &c. ; gave him authority to administer to his deputies the necessary oaths upon their appointment, to frame regulations and instructions for their government, and to remove them for negligence or misconduct in office. By the act of 1806 the powers vested by law in the surveyor general were extended over the public lands in the territory of Louisiana, and it was made his duty to appoint a sufficient number of skillful surveyors as his deputies in said territory, one of whom, with the approbation of the secretary of the treasury, he should designate as his principal deputy ; and it was made the duty of the principal deputy, thus appointed, to execute, or cause to be executed, by the oth n- deputies such surveys as might thereafter be authorized by law, and should generally perform, in conformity with the regulations and instructions of the surveyor general, the duties imposed by law on the said surveyor general.

The office of the surveyor of the public lands in Illinois and Missouri was established by the act of April 29th, 1816, and has continued in force, without any modifications hearing on this case, ever since. This act provided that a surveyor of Illinois and Missouri should be appointed, whose duty it should be to engage a sufficient number of skillful surveyors as his deputies, and to cause so much of the public lands to be surveyed as the President should direct; to do and perform all such other acts in relation to such lands as the surveyor general was authorized and directed to do in relation to the same on the lands lying north of the river Ohio ; and generally to do and perform all and singular the duties required by law to be performed by the principal deputy of the territory of Louisiana. This act devolved on the surveyor of Illinois and Missouri the same duties which had been prescribed for the surveyor general of the United States and the principal deputy for the territory of Louisiana. He has no authority to make surveys himself, but it is his duty to cause the surveys to be made by deputies whom he shall appoint, with power to make regulations for their government, and to remove them for negligence or misconduct in office. (Mr. Wirt’s Opinion, 1 vol. Opinions of Attorneys General, 432.) The practice of causing the public surveys to be executed by deputies under contracts with them, at a fixed rate per mile, was commenced by General Putnam, the first surveyor general, in 1797, and having received the sanction of the government, has been followed ever since. The contract system secures the performance of the work undertaken by the deputy, whether on examination he finds it a hard or an easy job ; whilst a deputy not bound by contract might resign at any time and abandon a survey after it is begun if he found it more laborious than he had expected, and thus delay the public interests. No surveys are made but such as are executed by deputies and are generally made under specific contracts; and as there are no duties incident to the office of a deputy but that of surveying under contract, he has no salary, and, without a contract, has no power and no duties, but is a mere locum tenens, with the empty title of an office that secures nothing but the chance of obtaining a contract at the pleasure of his principal. The law that gives the surveyor authority to appoint deputies seems to deny him the power to remove them except for negligence or misconduct; and as the deputy, after he has once contracted to make a survey, can not retreat from the undertaking, no matter how arduous the labor, or unprofitable it may be, the limitation on the power of removal is wise and just. As the deputy can not abandon the work he undertakes to perform as soon as he tires of it, the other party to the contract ought not to repudiate it without lawful cause. The wanton removal of a deputy without a contract would be damnum absque injuria; for as there is no compensation annexed to his office there would be no appreciable injury. But it is not lawful, without cause, to remove a deputy with a view to deprive him of the benefit of a subsisting contract, or to annul a contract after the right is secured to perform it, or in the course of its execution.

The instructions from the commissioner of the general land office, of July 28th, 1831, to the surveyor general of Mississippi, direct that a bond, with approved security, shall be taken for the due execution of all surveying contracts, in the penalty of double the value of the contract, and that the surveys must be executed under the personal and immediate superintendence of the contractor. These instructions appear to have been suggested by the 4th section of the said act of March 3d, 1831; and though the act does not apply to Missouri, there can be no reason why the commissioner of the ‘general land office, who has a superintending control over the public surveys, could not incorporate its practical provisions into the regulations of the department, so far as they were applicable and not inconsistent with law. .The instructions were directed to the surveyor of Mississippi, but a duplicate copy of them was sent to the surveyor of Illinois and Missouri, and they became obligatory on the latter.

The summary of the law and regulations of the department may be stated to be, that the surveying of the public lands is done under written contracts with deputies, who are required to execute bonds with approved security for the due execution thereof; they must take an oath faithfully to discharge their duties ; they may be removed for negligence or misconduct, and their work must be done under their personal and immediate superintendence ; and, by the printed instructions of the surveyor at St. Louis, the deputy is required to return his work with an affidavit, at the foot of the field notes of each township, that the work has been executed pursuant to his contract, in conformity to the law and instructions; that he has regularly surveyed and subdivided the township into sections, and that the field notes are the true and correct notes of the survey as executed. The contract between the plaintiff and Silas Reed, who acted in his official capacity, was inoperative whilst it remained in blank ; but if the blanks were properly filled by the surveyor at St. Louis, and the contract was signed by him and then mailed to the plaintiff, who, after receiving it, adopted and returned it to the proper office, it was binding on the plaintiff, though it was in blank when he signed it. It was at least good as a proposition from Silas Reed as surveyor, which continued outstanding whilst he remained in office, and if accepted by the plaintiff in a reasonable time, became a contract. (2 Kent, 477.) And even admitting that it was essential that the plaintiff should have adopted the contract, after the blanks were filled, during the official term of Silas Reed, the instructions of the court are erroneous; for the question was open to be tried by the jury, whether in fact the plaintiff had not received and adopted the contract before Silas Reed was removed.

But the contract, though signed by Silas Reed, was executed by him as a public officer and in behalf of the United States, and did not commit him to any personal liability; for, as was said in Hodgson v. Dexter, 1 Cranch, 363: “Where a public agent acts in the line of his duty and by legal authority, his contracts, made on account of the government, are public and not personal; they enure to the benefit of, and are obligatory on, the government, not the officer.” And if the proposition to the plaintiff from the surveyor, as a public officer, and as the act of the government, was accepted in a reasonable time by the plaintiff, it became a contract that was binding on the plaintiff and the United States, although in the interval between the time it was sent and returned Silas Reed had been removed from office and the defendant appointed in his place.

If the security to the bond for the performance of the contract was approved by Silas Reed whilst he was in office, his approval was sufficient, at any rate until the plaintiff was notified that other security was required.

Before the 20th of June, 1845, we do not find that there was any regulation that required an oath to the contract, and the execution of the contract and bond to be attested by witnesses ; and though there is nothing in this record to show that such a regulation ever existed, it is proper to observe, in reference to the instructions of the commissioner of June 20, 1845, which were in evidence on the first trial and may be offered again, that they would not apply to this contract if it was completed before they were issued. The contract was obligatory on the plaintiff, and the bond was binding on the principal and his surety, though their signatures were not attested; and if the papers were in proper form according to existing instructions, they would not be invalidated by subsequent instructions that did not affect their substance, especially if the requirements of the instructions of the 20th of June were complied with when they were brought to the plaintiffs notice.

The contract required the plaintiff to perform the work he engaged to do “ under his own personal and immediate superintendence and not by sub-contract.” This did not forbid him from employing assistants, for one man alone could not make the surreys, nor did it require him to be personally present all the time, for that would be almost physically impossible ; but as the law required the surreyor to employ skillful deputies, and Ms services were engaged, he was bound to devote his personal attention to the work, and so far be personally present and superintend its execution as to be capable of judging and certifying as to its correctness.

We give no opinion of course as to the weight of the evidence bearing on the questions raised by the instructions given by the court, but the instructions were erroneous because we think there was evidence tending to prove that there was a contract between the plaintiff and Silas Reed, as surveyor of Illinois and Missouri, obligatory on the United States, which the defendant ought to have respected, and which the plaintiff was legally authorized to claim the benefit of. But to entitle the plaintiff to a verdict the jury must find on satisfactory evidence, under proper instructions from the court, not only that there was a contract as laid in the declaration, and that the defendant unlawfully interfered with it, but that his conduct in the premises was stimulated by malice; for though the defendant may have acted unwisely or unlawfully, yet if he acted according to his judgment of what was right, or from a desire to promote the public interests, he will not be liable.

The other judges concurring, the judgment will be reversed and the cause remanded.


author: Scott, Judge,

text:
    Leimer, Appellant, v. Pacific Railroad, Respondent.
    1. where a demurrer to a petition is improperly sustained in part and oyer-ruled in part, and the court improperly strikes out a portion of the petition, and the plaintiff takes a nonsuit, lie will be entitled to have the nonsuit set aside.

      Appeal from Gasconade Circuit Court.

    The following is the petition in this canse : “ The plaintiff states that defendant owes him 11012.45 for provisions, boarding and lodging furnished for employees on said road; also for others, at the special instance and request of defendant; also for brandies, wines, hay, straw, ice, clothing, bedding, áttention to persons wounded on said road; also for work and labor done and performed for defendant; also for money paid out and expended for defendant, all at the special instance and request of defendant; the particulars of all which, and also the credits thereon will appear by the several accounts hereto annexed and made part of this petition. Plaintiff asks judgment for $1012.45, being the amount due him.”
    With this petition, three several accounts — marked A., B. and C. — were filed. In these accounts many of the items were charged in the aggregate, thus: “ Nov. 1, 1855 — Supper for 360 persons at 50 cts., $180. Nov. 2, 1855 — Breakfasts for 320 persons, $160. Nov. 2, 1855 — Dinners for 265 persons, $132.50. Nov. 2, 1855 — Supper for 17 persons, $8.50, &c. The defendant demurred to the petition. The court sustained the demurrer as to the accounts marked A. and B., and ordered them to be stricken out, with the exception of certain specified items. The court overruled the demurrer as to the third account filed. The plaintiff thereupon took a nonsuit, and afterwards moved to set the nonsuit aside. The court overruled the motion.

      Stevenson, for appellant.
    I. In setting out the items of an account a party is only required to state the same so that the opposite party may know with certainty for what specific thing a recovery is sought. It was an intelligible statement of the items to charge defendant with a certain number of meals furnished as a landlord at the request of plaintiff, and it was immaterial by whom they were eaten, and in this case impossible to be stated, because they were strangers to plaintiff. The items stricken out were all intelligibly stated, and apprised defendant fully of the nature of the same. The grounds of the demurrer were not well taken as against the account of plaintiff.

      S. T. & A. D. Glover, for respondent.
    I. The plaintiff having abandoned his petition can not assign error on that account. Having taken a nonsuit he has abandoned his demurrer, and he has now no remedy on his assignment of error.
   Scott, Judge,

delivered the opinion of the court.

As the court below sustained the demurrer to part only of the plaintiff’s petition, the only course left to him, in order to take the opinion of this court on the correctness of the action of the circuit court, was to submit to a nonsuit and bring the case here. If the nonsuit had not been taken, there would have been still an action pending in the court below, which would have restrained this court from entertaining an appeal or writ of error, as the plaintiff could not have appealed a part of his cause whilst another part was undetermined. Had the plaintiff gone on with so much of his action as was not affected by the demurrer, he might have been embarrassed in his subsequent proceedings. Suppose he had recovered on the cause of action remaining unaffected by the demurrer, would he bring a writ of error on the judgment in order to have the judgment of the court reversed for sustaining the demurrer to part of his petition ? If this was allowed him, would he not lose the judgment he had obtained ? A judgment is an entire thing, and must be reversed in whole and not in part. There was but one count or cause of action in the petition. The law required him to join all his accounts growing out of one transaction in the same petition. He could not sue for one part of an account and after judgment bring a suit for another part of it. (Brown v. King & Fisher, 10 Mo. 56.) Had the case been as it was in the brief supposed to be — a demurrer sustained to the entire petition— as the judgment on the demurrer was final, there being no leave to amend asked or given, the party by that judgment was out of court and the subsequent nonsuit was an act of supererogation and did not affect the proceedings on the demurrer. The record being brought here by appeal or writ of error, the nonsuit would be disregarded as a superfluous act, and the action on the demurrer would have alone been considered.

We see no objection to the petition under the liberal system of the pleadings now indulged. The petition with the accounts annexed sufficiently show the object and intent of the plaintiff’s action.

Judge Napton concurring, the judgment will be reversed and the cause remanded; Judge Richardson not sitting.


text:
    Sickles, et al., Respondents, v. McManus et al., Appellants.
    1. An action upon an administrator’s bond must be brought in the name of the state.

      Appeal from Ripley Circuit Court.

      Noell, for appellants.

      Bay, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

This record abounds in errors, but it is unnecessary to notice them. The judgment must be reversed; though the execution of the bond had been proved or even admitted on the trial, because the action on the administrator’s bond, in which the state was the obligee, can not be maintained in the name of the plaintiff. This point has been expressly decided in the case of the State to the use, &c., v. Moore, 19 Mo. 369.

The judgment is reversed,

the other judges concurring.


text:
    The State, Respondent, v. Vaughn, Appellant.
    1. To enable the Supreme Court to determine whether error lias been committed in giving instructions to the jury, the evidence must be preserved in a bill of exceptions.
    2. The insufficiency of an indictment may be taken advantage of in the Supreme Court, although no motion in arrest of judgment was made.
    3. An indictment charging that the defendant feloniously, wilfully, on purpose and of malice aforethought assaulted C. H. with a loaded pistol, and then and there, with said pistol, feloniously, &c., did shoot said C. H. with the intent to kill him, is sufficient under section 35 of the second article of the act concerning crimes and punishments. (R. C. 1855, p. 565.)

      Appeal from, Stoddard Circuit Cowrt.

    Noell, for appellant.
   Richardson, Judge,

delivered the opinion of the court.

None of the evidence in this case is preserved in the bill of exceptions, and if the instructions were erroneous as abstract propositions of law, this court would not reverse for that reason. The propriety of instructions affecting a trial depends on the evidence, which, if not preserved, authorizes the presumption the law indulges that the judgment below is correct. (9 Mo. 165, 807; 18 Mo. 256.)

The appellant filed a motion for a certiorari On the clerk of the circuit court to require him to perfect the transcript of the record by incorporating the motions to quash and in arrest, and this motion was overruled for the reason that this court will look into the validity of an indictment and will reverse, if it is insufficient, whether or not a motion in arrest has been made; (State v. Hammel, 5 Mo. 260;) and whatever may be taken advantage of in arrest of judgment may be corrected by writ of error. (State v. McGee, 8 Mo. 495.)

The only question presented in the record is as to the sufficiency of the indictment. The indictment is under the 35th section of article 2, concerning crimes and punishments (R. C. 1855), which is the same as the 34th section of the corresponding article in the code of 1845. It charges that the defendant “ feloniously, wilfully, on purpose, and of malice aforethought,” assaulted Carrol Henderson with a loaded pistol, and then and there, with said pistol, feloniously, wil-fully, on purpose, and of his malice aforethought, did shoot said Henderson with the intent to kill him. Shooting with the intent imputed in the indictment is not in terms declared to be an offence. The words of the statute are “ shoot at,” &c.; but the averment that the defendant did shoot with intent to kill, necessarily implies that he did “ shoot at” Besides, it is an offence under this section to assault another with a deadly weapon with intent to kill, and that offence is distinctly charged in this indictment. (State v. Chandler, 24 Mo. 271.)

The judgment is affirmed,

the other judges concurring.