Barnett v. Atlantic & Pacific R.R. Co.

• Decision Date: 31 October 1878
• Citation: 68 Mo. 56
• Court: Missouri Supreme Court
• Parties: BARNETT v. ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

68 Mo. 56

BARNETT

v.ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Pettis Circuit Court.--HON. WILLIAM T. WOOD, Judge.

C. M. Napton for appellant.

1. The double-damage law is either compensatory or punitive. It was intended to be the remedy by which a person should be compensated for damage to his stock, or, it may be regarded as a fine imposed or penalty inflicted upon the corporation for failure to fence the road. Or, again, it may be considered as both compensatory and punitive. Gorman v. Pacific R. R., 26 Mo. 450; Trice v. Hann. & St. Jo. R. R., 49 Mo. 440; Hudson v. St. L., K. C. & N. Ry. Co., 53 Mo. 536; Seaton v. R. R. Co., 55 Mo. 416.

2. If it be a penal statute it cannot stand, because it violates section 8, article 2, of the constitution of 1875. Under that section fines and penalties can be imposed only for the benefit of the county school fund.

3. When looked upon as a law granting to the owner of stock compensation for his loss, it involves the gravest questions. The right of property carries with it the right to receive an equal and just compensation for a deprivation of it; and thus the equivalent becomes an incident of and necessarily incorporated with the right of property itself. One who is deprived of his property is entitled to its equivalent, but whenever he receives one cent beyond that; the very principle on which he receives anything is violated. A law authorizing this conflicts with that provision of the constitution which declares that no private property can be taken for private use, with or without compensation, unless by consent of the owner. I do not say that punitory damages may not be given in a proper case. They are given expressly in consideration of some extreme suffering or hardship. But the right to recover double-damages expressly authorizes the taking of a certain amount of the property of one person and giving it to another, after all damage has been fully compensated for, and no such consideration as malice or bodily pain or mental anguish enters into the case, as is true of cases where punitory damages may be recovered. And punitory damages, or “smart money,” were given at common law, and do not arise out of the violation of a statute. Section 43 is in conflict with article 2, section 30 of the constitution. It is that “no person shall be deprived of life, liberty or property without due process of law.” The phrase “due process of law,” has been held equivalent to “the law of the land,” and a statute to be the law of the land must be one which the Legislature had the power to pass. Sheppard v. Johnson, 2 Humph. 285; State v. Doherty, 60 Me. 509; State v. Simons, 2 Spear 767. These phrases refer to pre-existing rules of conduct, and are designed to exclude arbitrary power from every branch of the government. They do not mean merely a legislative enactment.

4. If the Legislature has power to authorize doubledamages, it also has power to authorize the damages to be quadrupled or increased ten fold, or a hundred fold. It is a question of the constitutional power of that body, and if it be once conceded to exist, then there is no protection to the citizen save a supposable sense of justice in legislators, and if this should be illusory, confiscation could be justified as easily as double-damages. It may, however, be said that double-damages are not excessive, and that as soon as the damage, by being enlarged, became excessive, it would conflict with article 2, section 25, of the constitution, which provides that excessive fines shall not be imposed. And this might be held to answer the reasoning next preceding. But we have seen that this double-damage cannot be regarded as a fine or penalty at all; if it be, it is unconstitutional. Now, I regard it as altogether compensatory, and the question recurs, can the Legislature force one to compensate another twice, ten times, or twenty times, for an injury? When regarded as compensatory only, there is no theory upon which the law can be supported. Parish v. M. K. & T. Ry. Co., 63 Mo. 286; A. & N. R. R. Co. v. Baty, 6 Cent. Law Jour. 148.

5. There was nothing in the transcript from the justice to show that he had jurisdiction; and the complaint filed before him nowhere appears in the record.

Heard & Jackson for respondent.

1. The primary object of this law is the protection of the traveling public, and that, in this view, it is a constitutional police regulation, has been uniformly held. Gorman v. P. R. R. Co., 26 Mo. 441; Clark v. Hann. & St. Jo. R. R. Co., 36 Mo. 219; Trice v. Hann. & St. Jo. R. R. Co., 49 Mo. 440; Thorpe v. Rut. & Bur. R. R., 27 Vt. 140; Cooley on Const. Lim., 573, 579. Once concede this point and every other difficulty is removed. That portion of the section which requires railroads to fence their tracks, is the police regulation, and the portion which makes them liable for double-damages is remedial. If the Legislature has power, as unquestionably it has, to require railroads to be fenced, then it has power to compel a compliance with the requirement. If it can prohibit the evil, it can apply the remedy. The remedy is a matter of legislative discretion, and the Legislature may provide such liability, to be enforced in such manner, and payable to such persons, as, in its judgment, will be most effective to secure a compliance with the law. And this discretion and judgment will not be interfered with by the courts. Cooley on Const. Lim., 168, 169; Phelps v. Racey, 60 N. Y. 10. As an incident to this remedy is the compensation that the injured party receives.

2. The remedy in this law may be said to have a dual character--that is, it is penal and compensatory. Penal, in so far as it imposes a liability for a failure to comply with the requirements of the law, and compensatory in so far as it provides that the liability shall be for the benefit of a party injured by the failure to comply. But this compensatory feature of the remedy cannot abridge the constitutional power of the Legislature to establish the police regulation as the prime object of the statute.

3. For this argument, it must be taken as conclusive that the legislative judgment was that the most efficacious remedy was to be found in allowing a party suffering a loss to recover double-damages--just as in some cases of trespass the best remedy was considered to be in giving the injured party double-damages, and in other cases of trespass treble-damages; as in cases of protests of notes and bills, the best remedy was found in giving four and ten per cent. damages; as in appeals to this court, the best remedy to prevent frivolous appeals was supposed to be to give ten per cent. damages; as in order to prevent neglect on the part of any one authorized to solemnize marriages, any person who will, may recover the $50.00 imposed for failing to record certificates; as in cases of mortgagees failing to enter satisfaction, an absolute penalty of ten per cent. of the mortgage money, in addition to actual damages, is given to the debtor; as by section 36 of this same law, the $10 imposed for failing to deliver a baggage check, is given to the owner of the baggage; and as in all qui tam actions the best remedy is considered to be offering to some individual a part or all of the fine or penalty. But, it is said, if the Legislature can impose double-damages, it may go further and impose ten-fold, or a hundred-fold, the actual value of the stock. So it might, and so it should, if necessary to enforce obedience to a regulation designed for the security of human life. In fact, the history of this legislation proves that the imposition of this double liability is an effort to secure a sufficient remedy for this police regulation.

4. This law does not violate section 5, article 9, of the constitution of 1865. This section is intended to direct the disposition of all sums that arise from the various sources mentioned, and which reach the public treasury; and having once been paid into the treasury as the net proceeds of a fine, penalty or forfeiture, this section forbids their use for any other purpose, or their application to any other fund than a public school fund. It still leaves to the Legislature its discretion as to remedies, and does not prescribe that it shall adopt any certain remedy. It means if the Legislature, in its discretion, enacts that a penalty shall be paid to the public, then such penalty, when so paid, shall become part of a certain fund.

5. The record shows that a statement was filed with the justice of the peace, that the statement was read to the jury, and offered in evidence in the circuit court. If it was regular, the circuit court acquired jurisdiction upon receipt of the case from the justice. It will not be presumed that the statement was insufficient, for that would be to presume error. When a court has jurisdiction of the subject matter, the propriety and regularity of its action will be presumed until the contrary appears. Freeman on Judgs., § 124; State v. Weatherby, 45 Mo. 17; Huxley v. Harrold, 62 Mo. 516.

6. This objection, not having been raised below, cannot be urged here on appeal. Woods v. Mosier, 22 Mo. 335; Kennayde v. P. R. R., 45 Mo. 255; Hause v. Carroll, 37 Mo. 579; Beard v. Parks, 44 Mo. 244.

HOUGH, J.

This was an action under the 43d section of the railroad act...