Creason v. Wabash, St. Louis & Pacific Ry. Co. , 1885 Mo. App. LEXIS 63 ( 1885 )

Opinion by

Hall, Judge.

I.

Section 2835 of the Revised Statutes seems to correspond to and to have taken the place of sections 2 and 3 of chapter 177 of the Revised Statutes óf 1865. The provisions of old sections 2 and 3 have been condensed and somewhat modified in new section 2835; but the following provisions of old section 3: “Fifth, in all actions against any railroad company in this state, to recover damages for the killing, crippling, or injury of horses, mules, cattle or other animals within their respective townships, without regard to the value of such animals or the amount of damages claimed for killing, crippling, or' injuring the same,” have been, literally word for word, continued in the new section 2835, except with these differences only, that the words “fifth” and “crippling” in the old section have been left ont of the new section; and that instead of the proposition “in” used in the old section at the begining thereof, next to the word “fifth,” the preposition “of” is used in the new section. In other words the provisions of' the old sections and the new section are the same.

Section 2839 of the Eevised Statutes corresponds to section 6 or chapter 177 of the Eevised Statutes of 1865. The new section 2839 is identical with the old section, except that to the provisions of the latter there is added in the new section the following: “And fifth, any action against a railroad company for killing or injuring horses, mules, cattle, or other animals, shall be brought before a justice of the peace of the township in which the. injury happened, or any adjoining township.”

It is contended by plaintiff that by section 2835 of the Eevised Statutes, justices of the peace have general jurisdiction of all actions' against railroad companies for killing or injuring horses, etc., when the amount claimed' does not exceed one hundred and fifty dollars, and that only of said cases in which the amount claimed exceeds one hundred and fifty dollars, have justices of the peace local jurisdiction, confined to the townships in which the horses, etc., are killed, etc.

. This contention by plaintiff; in. our opinion, is not well founded. The. fact that many of the provisions of said sections 2 and 3 of the Statutes of 1865 have been changed and modified in the new section 2835 of the Eevised Statutes, and that the provisions above set out, of old section 3 are contained in the new section, would of itself go far toward establishing the intention of the law'-making power to continue those provisions unchanged as to their meaning as well as to their language, and to continue them as old law and not as a new enactment.

By virtue of section 3160 of the Revised Statutes, these provisions thus retained in the new section, are not a new enactment, but are the old law continued in force. —Bishop v. Schneider et al., 46 Mo. 482.

Even “a change of phraseology in a revision will not be regarded as altering the law where it had been well settled by plain language in the statutes or by judicial construction thereof, unless it is clear that such was the intent.” — Sedgwick on the Construction of Statutes, p. 229; Hughes v. Farrer, 45 Me. 72; Burnham v. Stevens, 33 N. H. 247; Onerfield v. Sutton, 1 Metc. (Ky.) 621.

And besides “the sections of a former statute being separated and scattered by a revision, are still to have the same construction as before.” — Sedgwick on Construction of Statutes, p. 229; Smith v. Smith, 19 Wis. 522.

These provisions having been construed by the Supreme Court of this state prior to the revision of 1879 it must be held that, being retained in the revision of 1879, they were continued as the old provisions with the construction theretofore placed upon them by the Supreme Court.

And this provision is fortified by section 1102 of the Revised Statutes, which is as follows: “ The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows : * * * third, concurrent original jurisdiction with justices of the peace in all civil actions and proceedings for the recovery of money * * * when the sum demanded, exclusive of interest and costs, shall exceed fifty dollars and does not exceed one hundred and fifty dollars ; and of all actions against any railroad company in this state to recover damages for the killing, etc., without regard to the value of such animals or the amount claimed, etc.”

The construction made of the old provisions by the Supreme Court is “that inactions for injuries to cattle, etc., the justice’s jurisdiction is confined in such as ‘arise within their respective townships’, thus making it a local action.” — Iba v. R. R. Co., 45 Mo. 475.

To the same effect is Haggard v. R. R. Co. (62 Mo. 303). But it is argued by plaintiff that Ms construction of section 2835 is enforced by the 5th subdivision of section 2839 of the Revised Statutes above quoted. We do not so think. To give effect to the quoted portions of the two sections 2835 and 2839 is somewhat difficult. But we think that it can be done, and be done without so construing the said provisions of section 2835 as to confer thereby upon justices of the peace general, instead of local, jurisdiction in actions like the present action. To give any effect whatever to the 5th subdivision of section 2839 it is necessary to hold that by it the said provisions of section 2839 are, to a certain extent, changed and modified. And we do so hold. But we do not hold that those provisions of section 2835 are repealed, or that they are entirely altered and changed by the said 5th subdivision of section 2833. We hold that, taking the two sections together, the jurisdiction of justices of the peace in such actions is still local, with the locality in which to exercise ■ the jurisdiction extended so as to include any township adjoining the township in which the horses, etc., may be injured, etc., and no further. We further hold that this jurisdiction as thus extended is still purely and entirely local, “without regard to. the value of such animals or to the amount claimed for killing or injuring the same.”

As to whether “any adjoining township” as used in section 2839 means an adjoining township in the same county only in which the horses, etc., are injured, etc., or in any other county, we are clearly of the opinion that an adjoining township as intended is an adjoining township in the same county only.

In addition to what we have already said in support of this opinion, we have this to say: There is nothing whatever in section 2839 directly or indirectly referring to any other county than the county in which the injury may occur. It will not do to say that other counties are included within the meaning of said section, because they are not expressly or by necessary implication excluded. Jurisdiction of justices of the peace must be be given by statute. ' • It' cannot be • maintained that justices of the peace have jurisdiction because it'is not denied them''by statute. 'And besides other counties are by the language of section 2839 impliedly excluded from its meaning. '

We are, therefore, of the opinion that the circuit court should have sustained defendant’s objection tú the introduction of any evidence by the plaintiff, for the re&son that the statement failed to state facts sufficient to constitute a cause of action; and that the said court should have given the instruction asked by defendant, directing the'jury to find for defendant.

The judgment of the circuit court is reversed.

All concur.