State ex rel. Barker v. Chicago & Alton Railroad

178 S.W. 129, 265 Mo. 646, 1915 Mo. LEXIS 40

• Court: Supreme Court of Missouri
• Decided: July 12, 1915
• Status: Published

Opinions

GEAYES, J.

In this case the. defendant filed a demurrer to plaintiff’s petition, which was sustained, and plaintiff refusing to plead further judgment was entered up for defendant and against plaintiff. The-soundness of that judgment is the issue here. Plaintiff’s petition is peculiarly worded, and the case may have to turn upon that wording, and for such reason we deem it best to set out the petition in full. The petition reads:

“Plaintiff, the State of Missouri, for its second amended petition, voluntarily made, leave of court having been first obtained therefor, states that it brings this action at the relation of John T. Barker, Attorney-General of the State of Missouri, and relator states that, on the 6th day of November, 1912,' he was duly elected Attorney-General of the State of Missouri, and has since qualified, and is now acting as said Attorney-General of said State of Missouri, and states that the-State of Missouri brings this action for itself, and for all other persons similarly situated, and who are hereby invited to enter herein and become parties hereto.

“Plaintiff further states that the defendant is-now, and was at all the times hereinafter mentioned, a railroad corporation, duly organized and existing under and by virtue of the laws of the State of Illinois, with authority to sue and liable to be sued as such in-the courts of this State, and that said defendant is in possession of and operating a line of railroad from Kansas City, Missouri, to St. Louis, Missouri, which said railroad passes, among others, through the county of Saline, in said State of Missouri.

“Plaintiff further states that, in the year 1905,, the General Assembly of the State of Missouri passed and enacted acts commonly known and designated as-the maximum freight rate laws, to-wit, the Act of the General Assembly, approved April 15, 1905, entitled ‘An Act, entitled “An act to amend chapter 12 of the Revised Statutes of Missouri, revision of 18-99, entitled ‘Corporations, Private,’ by repealing section 1194 of said Revised Statutes, being part of article 4 of said chapter concerning railroad classification-charges-commissioners, and to enact in lieu thereof the following sections providing for the regulation of freight charges by railroads and the recovery of penalties for the violation thereof,” ’ and the Act of the General Assembly, approved April 14, 1905, entitled ‘AN ACT to amend Article 4, chapter 12 of the Revised Statutes of Missouri of 1899, entitled, “Railroad classification charges, commissioners,” by adding a new section thereto to be known as section 1195a.’ Said acts fixing and establishing the maximum rates or charges-that could thereafter be lawfully made, charged, collected and received by defendant and other railroads for carrying and transporting freight of the kinds and classes therein specified from points within the Statu of Missouri to other points therein, which said acts became operative and in effect on the 16th day of June, 1905; that, thereafter, the General Assembly of the State of Missouri repealed said acts aforesaid, and passed and enacted in lieu thereof, and thus modified the same, the act approved March 19, 1907, entitled ‘AN ACT to repeal an act of the 43rd General Assembly, approved April 15,1905, entitled “An act to amend chapter 12 of the Revised Statutes of Missouri, Revision of 1899, entitled ‘Corporations, private,’ by repealing section 1194 of said Revised Statutes, being part of article 4 of said chapter, concerning railroad classification, charges, commissioners, and to enact in lieu thereof the following new section providing for the regulation of freight charges by railroads and recovering penalties for the violation thereof,” and to repeal an act of the 43rd General Assembly, approved April 14, 1905, entitled “An act to amend article 4,. chapter 12, of the Revised Statutes of Missouri, 1899, entitled ‘Railroad classification, charges, commissioners,’ by adding a new section thereto, to be known as section 1195a, fixing the charges for carrying undressed stone, crushed rock and building or paving brick,” and to enact in lieu thereof certain new sections, to be known as sections 1194, 1194a-l, 1194b:l, and 1194c-l, providing for the regulation of freight charges .by railroads and prescribing punishment for a violation thereof, which new sections shall read as follows,’ and also the act approved March 19, 1907, entitled ‘AN ACT to amend article 4,. chapter 12, Revised Statutes of Missouri of 1899 by adding a new section thereto, to be known as section 1195a, and re-, lating to freight charges and classification,’-which said acts became operative and in effect on the 14th day of June, 1907, fixing and establishing the maximum freight rates and charges that could thereafter be lawfully made, charged, collected and received by the defendant and other railroads carrying and transporting the kinds and classes of freight therein specified; that the said General Assembly of Missouri also passed and enacted, in the year 1907, the act approved February 27,1907, entitled ‘AN ACT to repeal sections 1191 and 1192 of chapter 12, article 4, Revised Statutes of Missouri 1899, entitled “Railroad classification-charges-commissioners, ” by striking out sections 1191 and 1192 and enacting the following sections in lieu thereof to be known as sections 1191 and 1192 and 1192a,’ fixing and establishing the maximum rates of fares that could thereafter be lawfully made, charged, collected and received by the defendant and other railroads carrying and transporting passengers from points within the State of Missouri to other points therein, which said rates or fares permitted and allowed to be so made, charged, collected and received by the defendant became and were at the rate of two cents per mile for persons over twelve years of age; and one-half thereof for persons twelve years of age and under; that said maximum freight and passenger rate laws provided for reduced freight and passenger rates, respectively from what the defendant and other railroads prior thereto had been permitted to charge, and were charging, for freight and passengers carried and transported by the defendant from points within the State of Missouri to other points therein, or what is commonly known and designated as intrastate business or transportation; that, on the 16th day of June, 1905, an injunction was issued out of and by the Circuit Court of the United States for the Western Division of the Western District of Missouri, sitting at Kansas City, Missouri, enjoining the operation and enforcement of the said maximum freight rate laws of 1905; that, thereafter, and on the 13th day of June, 1907, in "the said same suit, by supplementary proceedings therein, and as a part thereof, said injunction theretofore granted and subsisting was amended and enlarged so as to enjoin the said maximum freight rate laws of 1907, and also the operation and enforcement of said maximum passenger rate laws were in said same suit, by supplementary proceedings therein, and as a part thereof, enjoined from the 13th day of June, 1907, until the 19th day of June, 1907, but were not further enjoined thereafter nntil the 8th day of March, 1909, and said defendant complied therewith, and did not charge passenger rates or fares in excess thereof until May 1, 1909; that, thereafter, on the 8th day of March, 1909, the injunction and amendments thereto having been continued in force and effect until said date, said Federal court rendered a final decree in said suit, and undertook to permanently enjoin the operation and enforcement of said maximum freight and passenger rate laws aforesaid, and, from the dates hereinbefore stated, the operation and enforcement of said maximum freight and passenger rate laws were enjoined until the reversal of said decree by the Supreme Court of the United States, as hereinafter more particularly stated, and, during the times hereinbefore and hereinafter mentioned, defendant herein, as well as the other railroads owning or operating lines of railroad within this State, refused to put into operation and effect said reduced freight and passenger rates, as required by said maximum freight and passenger rate laws, but continued to unlawfully make, charge, collect and receive the rates and fares enacted before the passage and going into effect of said laws, except that, from June 14,1907, until May, 1909, defendant charged, collected and received two cents per mile, in compliance with said maximum passenger rate laws, and from and after the 1st day of May, 1909, until the 2nd day of July, 1913, the defendant unlawfully charged, collected and'received from the plaintiff and all passengers traveling over its lines in the State of Missouri, and all persons paying fares therefor, as aforesaid, the rate cf two and one-half cents per mile for such passengers, and which said freight rates and charges and passenger rates and fares were in excess and higher than the said freight and passenger rates as fixed and established by said laws aforesaid, and plaintiff and all shippers and passengers shipping over and traveling upon defendant’s said' lines, and all persons paying freight rates and passenger fares therefor, were compelled to and did pay such excessive and unlawful excess freight rates or charges and passenger rates or fares, as hereinafter more particularly stated.

“Relator further states that, at the time of granting said injunction by the said Federal court, Herbert S. Hadley was the Attorney-General of the State of Missouri, and as such Attorney-General was made, and by the act of said defendant became and was, the representative of all shippers and passengers shipping and traveling upon, defendant’s lines or railroad from points within the State of Missouri to other points therein, and paying freight charges and passenger fares therefor, and as such Attorney-General was enjoined from enforcing any of the provisions of said maximum freight and passenger laws, and by virtue of said injunction against said Herbert S. Hadley, Attorney-General of said State of Missouri, who was then and there made, and by the act of said defendant became and was, the representative of all such passengers and shippers, such persons paying said freight charges or passenger fares were enjoined ' and prevented by said injunction, by and through their said representative, Herbert S. Hadley, Attorney-General of the State of Missouri, and, while so enjoined by virtue of said injunction against their said representative, as aforesaid, were so enjoined and prohibited, from instituting and maintaining suits against the defendant for the recovery of such excess freight rates or charges and passenger rates or fares, and the defendant herein refused to put such reduced or lower freight rates and passenger rates into effect, and to comply with said maximum freight and passenger rate laws, but unlawfully compelled the plaintiff and all shippers and passengers shipping or traveling upon its said lines of railroad within the State of Missouri, as aforesaid,' and all persons paying said freight rates and passenger fares, as aforesaid, to pay such excessive and unlawful freight rates and charges and passenger rates and fares; that, thereafter, Elliot W. Major succeeded said Herbert S. Hadley as Attorney-General of the State of Missouri, and said injunction was, at the request of the defendant, amended so as to •enjoin said Elliot W. Major as such Attorney-General and he thereupon became and was the representative of all shippers and passengers, and persons paying such excessive and unlawful freight charges and passenger fares, the same as said Herbert S. Hadley had been, as aforesaid; that, thereafter, John T. Barker succeeded said Elliot W. Major as Attorney-General of the State of Missouri, and is now acting as such Attorney-General, and by reason of succeeding said Elliot W. Major to said office was substituted for said Herbert S. Hadley and Elliot W. Major, and said injunction was thereupon amended so as to enjoin said John T. Barker, Attorney-General, and he was then and there made, and has ever since been therein, the-representative of all such shippers and passengers,, and persons paying such excessive and unlawful freight charges and passenger fares, the same as his said predecessors in said office of Attorney-General had been, as aforesaid.

“Relator further states that, after the granting- and allowing of said injunction, as aforesaid, the State-of Missouri, through its Attorney-General, and the shippers and passengers, and persons paying said unlawful and excessive freight charges and passenger fares, as aforesaid, through their representative, prosecuted an appeal to the Supreme Court of the United States, and that, on the 16th day of June, 1913, the-said Supreme Court reversed and for naught held the said decree of said Federal court granting and allowing said injunction in behalf of the defendant herein, and ordered said injunction dissolved and defendants bill therefor dismissed, without prejudice, and held that said maximum freight rate laws and said maximum passenger rate laws were and are valid and had been in effect since the time they became operative and in effect under the Constitution and laws of the State of Missouri, and found all the issues in said suit in favor of the State of Missouri, and said shippers and passengers, and persons paying said excess charges and fares, as aforesaid; that, thereafter said injunction was dissolved, and the defendant’s bill therefor dismissed, and the Federal Court aforesaid refused, and has since refused, to retain jurisdiction of said matter, but has left the question of jurisdiction for the State courts, and on the 2nd day of July, 1913, the defendant herein filed and published and put into effect, its schedules and tariffs, as required by said maximum passenger rate law, and, on the 12th day of July, 1913, filed and published, and put into effect, its schedules and tariffs, as required by said maximum freight rate law, and, at the times hereinbefore stated* respectively, •ceased to unlawfully make, charge, collect and receive passenger fares and rates and freight charges and rates in excess thereof.

“Relator further states that, from said May 1, 1909, until said July 2, 1913, during the time said injunction was in force and effect preventing the operating and enforcement of said maximum passenger rate laws, the plaintiff was compelled to and did pay the railroad fares of its officers, agents and employees, while traveling upon the business and affairs of said State of Missouri, over the lines of railroad of the defendant herein, from points within the State of Missouri to other points therein, and during said time was compelled to and did pay to the said defendant, in excess passenger fares, the sum of fifty thousand dollars, and the State of Missouri is entitled to and should recover said excess passenger fares so paid from the ■defendant herein; that the defendant herein charged, collected and received said money without authority of law, and holds the same in violation of its corporate rights and powers as a common carrier in the State of Missouri, and has no title in and to said unlawful, exorbitant and excessive passenger fares and rates so collected, and had and received all and every part thereof for the use and benefit of the State of Missouri, plaintiff herein, and all of said money aforesaid belongs to the plaintiff, from which it was wrongfully and unlawfully taken, and wrongfully and unlawfully retained by defendant, and withheld from plaintiff, and, on said 2d day of July, 1913, when said defendant ceased to unlawfully charge, collect and receive said excess passenger fares aforesaid, said defendant was, and now is, indebted to the State of Missouri, the plaintiff herein, in said sum of fifty thousand dollars; for so much money had and received for the use of the State of Missouri, plaintiff herein.

“Relator further states that the State of Missouri, plaintiff herein, during the continuance of said injunction aforesaid, and until the 12th day of July, 1913, was compelled to and did pay to the defendant excess freight rates and charges for transportation of its freight from various points within the State of Missouri to the State institutions of said State of Missouri, such as the University of said State, located at Columbia, Missouri, and the Penitentiary, located at Jefferson City, Missouri, and its eleemosynary and educational and other institutions located at divers other points, therein, belonging to and sustained by said State of Missouri.

“Relator further states, that, on or about the-day of February, 1911, a fire caused the destruction of such records as were in the possession of the plaintiff, showing such shipments and charges aforesaid, and the plaintiff is not now in possession of any record thereof, is unable to state the amount of excess freight rates and charges charged, collected and received by defendant thereon, but that the defendant has a full and complete record thereof, and all the facts pertaining thereto are peculiarly within the knowledge of said defendant, and that said items and charges extended over a period of more than seven years, and are very numerous and complicated, and can be ascertained only by taking an accounting and having discovery thereof; that the defendant herein charged, collected and received said excess freight charges without any warrant or authority of law, and holds the same in violation of its corporate rights and powers as a common carrier in the State of Missouri, and has no title in and to said unlawful, excessive and exorbitant charges so collected, and had and received all and every part thereof to and for the use and benefit of the State of Missouri, plaintiff herein, and all of the money and said excess freight rates or charges and each and every part thereof belongs to the plaintiff, from which the same was wrongfully and unlawfully taken, and wrongfully and unlawfully retained by the defendant, and withheld from plaintiff, and that, on the 12th day of July, 1913, when said defendant ceased to unlawfully charge, collect and receive said excess freight rates or charges, as aforesaid, said defendant was and now is, indebted in the sum of money, and each and every part thereof, so collected and exacted from plaintiff as such excess freight rates or charges for so much money had and received by said defendant to and for the use of said State of Missouri.

“Plaintiff further states that, during the times hereinbefore stated, all the shippers and passengers, shipping and traveling over the lines of railroad of defendant from points within the State of Missouri to other points therein, and persons paying charges and fares therefor, the number of which is unknown to plaintiff, but runs into the thousands and hundreds of thousands, were likewise, and by the same identical and continuous unlawful act or acts of defendant, compelled to and did pay to the defendant said excessive freight rates or charges and said excess passenger rates or fares, and are likewise entitled to recover from the defendant such unlawful, exorbitant and excessive rates or charges, and that each and every one of them has the right to maintain an action against the defendant therefor; that the number of said shippers and passengers, and persons so paying said rates, charges or fares, are very numerous and in the same class as plaintiff, and their claims therefor likewise numerous, and that each and all of them are in the same situation as, or similarly situated with, the plaintiff in this suit; that there is a community of interests between all such shippers, passengers and persons so paying said excess rates, charges or fares and the State of Missouri, and that all said parties are united by a common tie, and have an identity of interest in the subject-matter of this suit; and are directly interested in the result or results to be obtained in this suit; that precisely the same questions of law and fact are involved herein between the plaintiff herein, said shippers and passengers and said persons so paying said excess freight and passenger rates, charges and fares, and each and every one of them, on the one side, and the defendant on the other side; that the underlying questions of law and fact in this smt, and all said shippers and passengers and persons so paying said excess rates, charges and fares aforesaid, being the same upon which all must recover against the defendant, or be' defeated in recovery, are of one common or general interest to numerous persons, and it is impracticable to bring them all before the court; that there will be filed against the defendant a vast number of separate suits against the defendant, unless plaintiff shall prosecute, and be permitted to prosecute, this suit, and that all questions, which would be involved in said suits, depend upon the same issues of fact and upon the same principles of law, and .all can be settled in one suit and by one adjudication, and in this suit brought by plaintiff herein, and a great multiplicity of suits can and will thereby be avoided, court costs reduced, and persons with small claims will have an opportunity to have them adjudicated, which they otherwise would not be able to have done.

“Wherefore, plaintiff prays judgment against the the defendant for the said sum of fifty thousand dollars, aforesaid, and for an accounting and discovery against the defendant herein as to said excess freight charges, and as to said excess passenger fares, so that it may be ascertained the exact amount of money so unlawfully taken'and exacted from the State of Missouri, plaintiff herein, and all other shippers and passengers similarly situated, and had and received to and for its and their use by defendant as aforesaid, and prays that a referee be appointed for the purpose of securing said accounting, and discovery of the items and amounts thereof, and that judgment be rendered against the defendant herein, for the amount so ascertained to have been illegally and unlawfully charged and collected from plaintiff by defendant, and for judgment for said plaintiff, the State of Missouri, for the amount so ascertained, and that all persons and claimants similarly situated be permitted to come in and hie their claims herein, and become parties hereto, and, when they so come in, that they shall have the same orders, judgments and decrees as prayed for by the plaintiff, and for all other orders, decrees and judgments as to the court shall seem meet and proper.”

To this petition the following demurrer was hied:

“Comes now the defendant and demurs to plaintiff’s second amended petition in this cause for the following reasons, to-wit:

“1. Because the petition does not state facts sufficient to constitute a cause of action against this defendant.

“2. Because plaintiff has in said petition attempted to bring before the court alleged claims and alleged causes of action of other persons which cannot be legally joined in this suit, and are improperly united; and said petition is multifarious.

“3. Because plaintiff, in said petition, has improperly united alleged claims or alleged causes of action of persons not named as parties plaintiff to said suit.

“4. Because said petition is clearly multifarious.

“5. Because plaintiff, State of Missouri at the relation of John T. Barker, Attorney-General, has no legal capacity or right to maintain this suit for or on behalf of any shippers and passengers in any capacity whatever.

“6. Because this court has no jurisdiction of the subject of the action or of the alleged claims or alleged causes of action of shippers and passengers referred to in the petition, or of the alleged shippers and passengers.

“7. Because there is a defect of parties plaintiff, and plaintiff is not the real party in interest.

’ “8. Because plaintiff has not the legal capacity or right or authority in law to sue or maintain this suit against defendant.

“9. Because there is a misjoinder of alleged causes of action which cannot be joined in the same-count or in the same petition.

“10. Because, the petition, upon its face, discloses no equity so as to give this court, as a court of equity, jurisdiction to grant the relief prayed in said petition, or the appointment óf a referee for the purpose of an accounting.

“11. Because the petition does not state whether or not an injunction bond was given or executed in the injunction suit referred to in the petition filed in the Circuit Court of the United States for the Western Division of the Western District of Missouri, sitting at Kansas City, Missouri; and, in the absence of an injunction bond, no recovery can be had by reason of any damages or claims caused by or growing out of the issuance of said injunction, and in any event no recovery can be had in the absence of a bond covering the matters complained of in the petition.

“12. Because at the time of issuing the alleged injunction by the said Federal court referred to in the petition, an injunction bond was executed and issued and filed in said Federal court and approved by said court, which bond is in words and figures, as follows, to-wit:

“IN THE CIRCUIT COURT OF THE UNITED STATES FOR “THE WESTERN DIVISION OF THE WESTERN “DISTRICT OF MISSOURI.

“THE CHICAGO & ALTON RAILROAD COMPANY, Complainant, y. “HERBERT S. HADLEY, Attorney-General, Joseph Ríce, John A. Knott and Frank W. Wightman, Railroad Commissioners, et al., Defendants.

“INJUNCTION BOND.

‘‘Know all men by these presents: That the above complainant is held and firmly bound to the above-named defendants in the penal sum of ten thousand dollars, .for the payment of which it binds itself, its executors, administrators, successors and assigns. This .bond is made upon the condition.

“Whereas, the court in the above-entitled cause made an order on July 12, 1905, granting a temporary injunction; now if said obligor pays, in case said injunction be dissolved, all damages ascertained herein to have been sustained by defendants, or any of them, or any person becoming a defendant herein, then this obligation to be void;, otherwise in full force and effect.

“Witness the hand and seal of said party this- day of July, 1905.

“The Chicago & Alton Railroad Company,

“By S. M. Felton, Its President. “Attest: Charles H. Davis, Secretary.

“The foregoing bond is approved this 22nd day of July, 1905, the appearing defendants waiving the necessity of any surety signing the bond.

“Adelaide Utter, Clerk.

“That any recovery for the matters complained of in plaintiff’s petition is limited to said bond, above set forth, and that no recovery can be had for any of the matters complained of in plaintiff’s petition except in an action upon said bond, which bond plaintiff, through its counsel, has admitted was given and executed and approved by the court which issued the injunction alleged in the petition.

“13. Because the United States District Court for the Western Division of the Western District of Missouri alone has jurisdiction of all alleged damages or claims of the State of Missouri and of shippers and passengers for and on account of the alleged overcharges, and that the same are limited by said bond.

“14. Because the alleged statutes of the State of Missouri referred to in the petition are confiscatory, and enforcement of the same would amount to a depriving of defendant of its property without compensation,' without due process of law or the equal protection of the. law, contrary to section 1, article 14, of the 'Amendments to the Constitution'of the United States.

“Wherefore, defendant prays the judgment of the' court. ’ ’

Other questions will be further outlined in the course of the opinion.

I. Some acrimony has seemingly crept into this case. The briefs are voluminous, and in some instances cite a great number of cases many of which fall far short of the conceived point, and at times the conception is not even clear. It is a case, however, where the court should winnow the wheat (if any) from the chaff; where the bark should be separated from the solid wood; where principles of substantial law should be separated from all vagaries. It is in other words a typical case for the application of seasoned doctrines of law. The doctrines of the theorist have no place in a case where either life, limb or property is at stake, and it makes no difference from which side of economic or political questions the theorist may come. We have theorists who imagine large interests are the only things to be observed, and then we have theorists that imagine that property rights should be swept aside by popular clamor, much of which clamor is of their own creation. Both are alike dangerous to society and the true administration of the law. Such views have no place in briefs for the courts. Questions of law which are at issue are the only things in which the courts are interested and harangues in which popular prejudice is sought have no place here. Some briefs in this case amply justify these remarks. We shall not be personal (and therefore designate no briefs), but the one upon which the shoe fits will recognize the justness of these observations. We pass now to the merits of this cause.

construed.

II. We have set out the petition in full for a purpose. At one time it appeared that there might be á question as to whether or not the learned Attorney-General was suing for the State, or whether he was suing for both the State and all passenger and freight shippers. In fact distinguished counsel privately employed by the State had suggested in oral argument that the court could, if it took a certain view of the law, strike from the petition certain allegations of the petition, as surplusage, and leave a petition which would state a good cause of action against the defendant and in favor of the State only. To my mind the suggestion struck with some force at the time. Later, however, a reading of the petition did not bear out the suggestion. But we need not necessarily resort to a reading of the petition for its construction. In the reply brief filed, the learned Attorney-General, despite the suggestion aforesaid, has seen fit to fully characterize his petition. As he stands sponser for the petition and this case, his interpretation of the petition should go far with the court. This on the theory that one should be bound by-his own admissions. His admission that this suit was brought for the shippers and passengers of Missouri is couched in this language:

“The last brief upon behalf of the railroad has been filed. This will be the last word said for more than one hundred thousand shippers and passengers, whose money has been wrongfully taken from them.

“The ‘Swan Song’ of the railroad is a last attempt to vilify the Attorney-General for his efforts to recover for the people their money.

‘ ‘ In their madness they cannot conceive of an Attorney-General who stands for the people. Had the Attorney-General represented them with one-half the zeal he represents the people, he would have been a great man, great enough as a lawyer to occupy a seat upon the bench of the Supreme Court of the United States— great enough as a man to occupy the Presidential chair — but, in insisting on representing the people, as is his duty, he becomes an undesirable citizen, a crusader, and one who foolishly regards his oath of office seriously.”

The learned Attorney-General thus clearly admits that the purpose of his suit (and therefore the gist of his petition) is to recover not only for the State, but for “more than one hundred thousand shippers and passengers” the excess which was paid by the State and these “more than one hundred thousand shippers and passengers” in passenger and shipping rates. On page three of the original brief the learned Attorney-General, thus further says:

“The State also, in connection with its own cause of action, seeks to prosecute the suit in behalf of all other shippers and passengers, who were compelled to pay like excess charges, and who, therefore, are similarly situated with the State.”

Having characterized this petition himself he is estopped from saying that the court should otherwise name such petition, if his admission lead into trouble under the demurrer. Not only do we have this solemn admission, but many others of a like character throughout the several briefs filed by the appellants. We would therefore be perfectly safe in assuming the petition to be as the drafter thereof admits it to be.

But we need not rest upon these admissions alone. The petition proceeds upon the theory that the Attorney-General represents the shippers and passengers. It has been said that the prayer of a petition is no part of the petition, but the prayer of a petition is a Near index to the construction placed upon the petition by the pleader. A portion of the prayer in this case reads:

“Wherefore, plaintiff prays judgment against the defendant for the said sum of fifty thousand dollars, aforesaid, and for an accounting and discovery against the defendant herein as to said excess freight charges, and as to said excess passenger fares, so that it may be ascertained the exact amount of money so unlawfully taken and exacted from the State of Missouri, plaintiff herein, and all other shippers and passengers similarly situated, and had and received to and for its and their lose by defendant as aforesaid.”

In the petition proper several pages are used in averring that the Attorney-General “by act of defendant became and was the representative of all shippers and passengers.” Just how a railroad company could, by any act of its, make the Attorney-General the agent and attorney for Missouri shippers and passengers is left in darkness. We only call attention to this among other allegations in the petition for the purpose of characterizing the petition. That ■ the construction given by the learned Attorney-General of his own petition, in his last brief, is a proper one (that he not only represents the State, but all the shippers and passengers) would seem to be borne out by the pleading itself. In fact it is urged that all these alleged excess charges are a trust fund in the hands of the defendant, and the Attorney-General for the State and all shippers and passengers is attempting to establish that trust and the amount thereof. With the petition as we view it, and with the construction thereof given us by the learned Attorney-General, we have no hesitancy in holding that the petition is one which attempts to collect these excess freight and passenger charges from the defendant not only for the State, but for the numerous shippers and passengers. That both the State and the shippers and passengers have a remedy, we have no doubt, but that is not the only question raised by this demurrer. Of these respective rights we may have more to say if occasion demands. The question uppermost at this point is, conceding the purpose of the petition- to be as the Attorney-General admits, and as we construe if, what then should be its fate under ,the demurrer filed? This question can be approached from several angles, and these we take next.

„ ... Suit by state for others.

III. The petition shows that the State, and the shippers and passengers, are attempting to recover the excess, which was charged them by defendant upon freight and passenger carriage, over and above the last maximum rate statutes for freight and w passenger rates. We use the word £ statutes” in the broader sense, because the freight and passenger statutes involved are not only separate and distinct statutes, but were laws passed at different terms of the Legislature. Now, concluding, as we do, that both the State and these shippers and passengers can recover, the question is whether this petition is good as against the demurrer lodged against it. At this point it is not necessary for us to say whether or not the excess paid by the State is wrapped up in an injunction bond, if one was given in-the Federal case referred to-in the petition. The petition does not aver that such a bond was given, and although the demurrer does aver that such a bond was given, the “speaking” portion of this demurrer is not really here for consideration and it might in one sense be improper to discuss it. If we discuss the bond question at all, it will not be in view of paragraph 12 of the demurrer, which demurrer is fully set out in the statement. A discussion of the question might be proper under some other clause of the demurrer.

It is clear to our minds from the allegations of this petition that the sundry shippers and passengers of this State were not parties to the Federal case pleaded in the petition, and their rights were not foreclosed by whatever may have been done by the court i-n that case. If by reason of having stood upon unequal vantage ground the defendant has compelled the shippers and passengers of this State to- pay more freight and passenger charges than under a valid law they should have paid, then they aré entitled to recover it back. Shippers and passengers, and railroad companies do not stand upon the same plane so to speak. People have to travel and freight has to be shipped, and if the carrier occupying a very advantageous position in the quarrel over the rate to he paid, compels the payment of more than the amount authorized by law, the excess can be recovered by such shippers or passengers. But that is not the question here. Under the facts pleaded the State of Missouri is not suing in its governmental capacity. It is suing just as any private corporation or individual would sue to recover money to which it alleges it is entitled. This petition gives the State and the shippers and passengers as plaintiffs in the petition. It is a petition in a single count, whether it be considered legal or equitable. For the purpose of this present point it is immaterial whether it be called one or the other. Section 1794, Revised Statutes 1909, prescribes the things which must be in a petition, whether it be one at law, or one in equity. Then section 1800 provides as follows:

“The defendant may demur to the petition, when it shall appear upon the face thereof, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between .the same parties, for the same cause, in this State; or fourth, that there is a defect of parties plaintiff or defendant; or fifth, that several causes of action have been improperly united; or sixth, that the petition does not state facts sufficient to constitute a cause of action; or, seventh, that a party plaintiff or defendant is not a necessary party to a complete determination of the action. ’ ’

The demurrer in the case at bar raises most of these questions. It is at least broad enough to raise the question that the plaintiff has not the legal capacity to sue for the things sued for in this case. It is also broad enough to raise the further question “that a party plaintiff or defendant is not a necessary party to a complete determination of the suit. ” If it be conceded that the State, through its Attorney-General (as the Attorney-General admits), is suing to impound these excess charges not only for the State, but “for more than one hundred thousand shippers and passengers” then the question arises, can the State, or its Attorney-General, sue in such capacity? This is a proper ground of demurrer to a petition and one of the grounds lodged against this petition. Take a simple case. The Secretary of State has a hurried order for a number of State Reports. As the agent for the State he goes to the railroad agent and the agent tells him that he will not ship, the box of books unless he pays him so many dollars. The price fixed is in excess of that allowed by law, but the books must go. That the State could recover this excess I have no doubt. But suppose on the same date ten shippers of stock and ten merchants of Jefferson City had a similar experience with the same railroad agent and were compelled to pay more freight than they should have paid under the law, would that authorize the State to sue for itself and these other twenty persons? We think not. If these freight and passenger laws were declared valid, as the petition avers, the fact of a trial of their validity in an injunction suit cannot change the character of the claims sued for in this petition and make them differ from the claims in the case we have put. The claims which the learned Attorney-General seeks to recover in the present action are but claims for excess freight and passenger rates, i. e., rates which were charged in violation of a valid law. The character of the claims cannot be changed by the mere fact that the validity of the law was tested. As to the character of the claims, the case at bar and the supposed case are identical. The accumulation of the former may have resulted from a wrongful suspension of the law — a wrong charged to the defendant by the petition. The latter arose by the wrongful act of defendant’s agent. We can see no possible difference between the claims sued for in this action, and the claims stated in our supposed case. We mean with reference to suing and recovering the claims. If the State could act for all in one case it could so act in the other.

In the first the excess was paid as alleged through an injunction wrongfully sued out — a wrongful act of the defendant. In the latter or supposed case we also have the wrongful act of- the defendant. After all, and in both cases, the subject of recovery is the difference between what was charged and received, and what the law permitted to be charged. Broadly speaking there can be no difference in the two cases. When we get down to the real case before us much of the learning in the briefs is as so much waste paper. Cases are often befogged by imaginary issues, when the real issues are simple. The subject-matter of the recovery sought in this case is plain. Can the State sue for the shippers and passengers, who by chance may have claims against the defendant? In the language of section 1800, Revised Statutes 1909, the statute on demurrer, has the State the capacity to sue in that way and for that purpose? Without hesitation we say not. The State may sue for herself, if she has not otherwise entangled herself in the injunction suit (a question passed) and the shippers and passengers may sue for themselves, but the State has no power to sue for all as she has done in the present petition. On this ground the demurrer was well taken.

When the State brings suit for the recovery of excess passenger and freight charges it has had to pay (whether that action be upon the injunction bond or a straight suit for the money paid), it is suing as any other corporation or citizen would sue. It is not acting in its governmental capacity. As said by the Indiana court in State ex rel. Attorney-General v. Board of Commrs., 101 Ind. l. c. 74.- “When the State becomes a suitor in any of the courts, it is as much bound by the laws of the land, by the rules of pleading and practice, and by the decisions and judgments of the courts, inferior or superior, as any other suitor.”

To like effect is the Oregon Court in State ex rel. v. Lord, 28 Ore. 498:

“It was also held that the State, suing, in its corporate capacity for the protection of its property rights, stood in no different or better position in this regard than an individual. This doctrine is supported by high authority. Allen, J., in People v. Canal Board, 55 N. Y. 395, says: ‘When the State as plaintiff invokes the aid of a court of equity, it is not exempt from the rules applicable to • ordinary suitors; that is, it must establish a case of equitable cognizance, and a right to the particular relief demanded.’ And. as is said by the eminent jurist in People v. Ingersoll, 58 N. Y. 14, 17 Am. Rep. 178: ‘A distinction is to be observed between actions by the people or the State in right of the prerogative incident to sovereignty, and those founded on some pecuniary interest or proprietary right. The latter are governed by the ordinary rules of law by which rights are determined between individuals.’ To the same effect is the doctrine announced in People v. Fields, 58 N. Y. 514. See, also, 2 High, Inj., sec. 1327. So that we then concluded the plaintiff herein occupied no better or superior position, from a legal standpoint, for enforcing the remedy sought to be invoked, than the plaintiff in Sherman v. Bellows, 24 Ore. 553. From this position we see no sufficient reason for receding, as we believe it to be sound in law, and supported upon reason and authority.”

In People v. Railroad, 57 N. Y. 161, the New York Court of Appeals said:

“The people of this State have no general power to invoke the action of the courts of justice, by suits in their name of sovereignty for the redress of civil wrong, sustained by some citizens at the hands of others. When they come into court as plaintiffs in a civil action they must come upon their own right, for relief to which they are themselves entitled. It is not sufficient for the people to show that wrong had been done to someone; the wrong must appear to be done to the people, in order to support an action by the people for its redress. The suit now before us seems to have been instituted on a different theory. It sets forth various acts as wrongful, which if wrongful, affect no public right. These wrongs are wrongs to individual citizens and not to the State, and are remedial at the suit of the parties injured only.”

In Oklahoma v. A., T. & S. F. Ry. Co., 220 U. S. l. c. 286, Mr. Justice Harlan said:

“If after Oklahoma became a State the company still charged the Kansas rate on local business in Oklahoma and if those rai.o would have been illegal under any State regulations, or were, in themselves, unreasonable and purely arbitrary, a controversy, in the constitutional sense, would have arisen between each shipper and the company,- which could have been determined by suit brought by the shipper in the proper State court, or even in the proper Federal court, where the controversy, by reason of the grounds alleged by the shipper, was one of which the latter court, under the statutes regulating the jurisdiction of the Federal courts, could take judicial cognizance. But plainly the State, in its corporate capacity, would have no such interest in a controversy of that kind as would entitle it to vindicate and enforce the rights of a particular shipper or shippers, and, incidentally, of all shippers, by an original suit brought in its own name, in this court, to restrain the company from applying the Kansas rates, as such, to shippers generally in the local business of Oklahoma.”

Other cases might be cited and quoted from but these will suffice. These courts get at the logic and reason of the thing. The State has no more right to codect my claim for excess freight or. passenger charges, than would one of my fellow members upon this court. The State in such transactions, i. e., law suits to protect its property, stands just as do individuals, and its right to sue for itself and for others must be measured by the same rules. Measured by- these rules it can’t sue for other shippers and passengers, under the facts pleaded. Each claim is a case within itself. It is true that there may be one common fact, i. e., that each arose by the failure of the railway to obey laws, but on the other hand all other proof is different. If the sundry claims grow out of shipping contracts violative of law, you may have as many contracts as you have claims.

But we need not multiply words. The claim of each shipper and passenger against the defendant is a private right. The State has no right to enforce mere private rights, and on this theory could not sue for others. Then from the other viewpoint the State could not sue for others than itself without having assignments of the claims, or without having the other claimants join, and when they do so join then further complications as to the petition arise. We have separate and distinct causes of action in a petition of a single count. But even more we would have a judgment in parts of which the State would have no interest earthly. What interest would the State have in a finding and judgment under this petition that John Jones was entitled to recover from the defendant $20,000 in overcharges? We realize that there is an equitable rule which permits persons similarly situated to sue in the name of a class, but that rule has no application to a thousand individual claims dependent upon different proof. The rule is largely dissipated by our code which requires all cases (legal or equitable) to be brought by the party interested.

As said before, the only thing which is common to • all these claims is that they arose out of a failure to comply with certain laws which have been determined to be valid. In1 all other respects the proof thereof is entirely different as to each claim. We rule therefore that the petition is bad, because giving the petition the construction given it by its learned author, the State has not the legal capacity to sue in the manner here indicated. If not estopped by something in the injunction proceeding mentioned, it could sue for itself, but not for itself and all shippers and passengers.

Intermeddling by State in Private Controversies.

IY. That a State should not be permitted through its public officers, to assist either side of a private controversy is not only recognized generally, but it is specifically recognized in Missouri. In the case of State ex inf. v. A., T. & S. F. Ry. Co., 176 Mo. l. c. 709, this court quotes with approval the following from section 1830, 2 Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.):

‘ ‘ The people of the State have no power to invoke the action of the courts of justice in this form for the redress of civil wrongs sustained by some citizens at the hands of others. When the people come into court in the name and right of sovereignty, as plaintiffs in a civil action, they must come upon their own right for relief, to which they are themselves entitled. It is not sufficient for them to show that wrong has been done to some one; the wrong must appear to be done to the public in order to support an action by the people for redress. This principle has been applied and illustrated in numerous cases both in England and the United States. Thus, where a turnpike company in making its road through private lands had failed to compensate the owners according to the direction of the act, it was held that the company was merely a trespasser, and that the fact that the public was in no way interested in such controversy was a sufficient reason for not granting an information in the nature of quo warranto. In such case it is plain that entering and injuring lands of private parties is neither an abuse nor an assumption of corporate power, but a simple violation of private right. A provision of the company’s charter requiring it to do certain things before entering on lands is inserted, not for public but for private security. By entering without , complying, the company was simply guilty of a tort, as its trespassing agents would have been if no' charter had been granted. ’ ’

Applying this doctrine to the ease at bar. The State has the right to sue for itself in this case, unless it may have become implicated by some acts in the injunction case, but as to any other shipper or passenger it should not “take a hand,” if we may be permitted to use such a term judicially. Even the old equitable rule permitting one in the name of a class to sue, if such rule can stand under our code of practice, should be rigidly construed as to the State. If during this injunction proceeding John Jones, who was not a party thereto, had been compelled to pay excess passenger or freight charges, such controversy was a private matter between him and the defendant. The courts are open to him to adjudicate and adjudge his grievances, but the propriety of the State joining with him in the enforcement of this private right is quite a different question. As between citizens the hands of the State should be off. It would be unfair for the State to use public funds to assist certain private suitors in collecting their claims, when the mass of the contributors to the State’s funds (the tax payers) had no such claims. The Attorney-General in civil matters represents the State in its private interests. To that extent only he represents the people. In their private controversies he no more represents the people than does any private citizen. It was never contemplated by the Missouri Constitution, or any statute passed thereunder, that the State should use its good offices to collect from one citizen or corporation a sum due it from another citizen or corporation. Public funds are not appropriated for that purpose, and should not be used for that purpose. Private individuals in their controversies should pay the expenses of their own lawyers. Clearly the people’s money appropriated for State purposes should not be used in the settlement of purely private controversies.

If the question as to whether a railroad corporation has charged me an excess rate, in either freight or passenger charges, is not a private controversy, I have read the books to no avail. If it were necessary (which it is not under the facts in this case) I would say that it should be held that the State under no circumstances, as a private suitor, should be permitted to go to the extent of drawing to it individual suitors, as against other individuals or corporations, of the State. It should not be permitted to use its powers, and its officers, and the public funds under the control of such officers, for the purpose of adjusting controversies between two of its citizens, although the State might have a similar controversy. This on the theory that as to the- private controversies between citizens, the State’s hands should be off. Respect for the State and State Government cannot be otherwise retained. If the State has a private grievance (as it would seem in this case) against oné of its citizens or corporations, let it litigate that grievance, but it should not as a pure question of public policy, be permitted to assist in the adjustment of similar grievances as between its own citizenship. The State should be broader' than that. It should not desire to intermeddle, even if it could. It should not be so permitted, if it so desired. It should stand upon a higher plane. So that we again repeat, that on the theory upon which this action is brought it should not be maintained. That theory is, that the State can sue for all shippers and passengers. A simple analysis of the case shows that each shipper and passenger has a private right of action for the excess charges and can sue direct therefor. The State has such right in its private capacity, unless it has changed the character of its suit by what has happened in the injunction case. Whether it has so changed the form of its action, we need not now say. What we have said is sufficient for this case: Nor are we impressed with the contention of the learned Attorney-G-eneral that the shippers and passengers would be saved costs by this omnibus proceeding. They have to prove their individual claims. As it is, they have to go long distances with their witnesses, whereas otherwise they could sue at home where the evidence ©f their claims is to be found. On no reasonable theory therefore should the State be permitted to prosecute this suit for the purposes disclosed by the petition.

V. There are other questions urged by the demur-, rer that might be fatal, to the petition, but we do not deem it necessary to discuss them. The question as to whether the State should look to the injunction bond, if such was given in the Federal case, is one of them. We desire now to express no opinion upon it. That is a matter for the learned representative of the State to determine. He does not plead that there was a bond. That the State has a right 'of recovery somewhere, if there was an injunction bond, is unquestioned. It is sufficient to say that for the reasons we have assigned the demurrer was well taken, and the judgment of the circuit court should be and is affirmed.

Walker and Faris, JJ., concur; Woodson, G. J., concurs in separate opinion; and Blair, J., concurs in part and dissents in part in separate opinion. Bond, J., dissents in an opinion filed. Brown, J., not sitting.-