Chicago, R.I. & P. Ry. Co. v. Territory of Okl.

Decision Date11 November 1909
Citation105 P. 677,25 Okla. 238,1909 OK 301
PartiesCHICAGO, R.I. & P. RY. CO. v. TERRITORY OF OKLAHOMA.
CourtOklahoma Supreme Court

Syllabus by the Court.

The violation of section 4, c. 15, p. 168, Laws Okl. T. 1903 which provides: "It shall be unlawful for any railroad company, express company, or other common carrier, their officers, agents, or servants, to accept or receive within this territory any of the game mentioned in section 1 of this act, for the purpose of carrying or transporting the same to any other place, either within or beyond the limits of this territory, or in any manner handle the same in any way. Any railroad company, express company, or other common carrier or private individual who shall, through itself, himself, or its agent, servant or employé violate any of the provisions of this section, shall forfeit and pay to the territory of Oklahoma, for each violation thereof, the sum of five hundred dollars, to go to the common school fund of said county together with all costs of suit, including a fee of one hundred dollars to go to the county attorney bringing said suit, to be recovered in a civil action to be instituted by the county attorney of the county wherein said suit is brought, which sum of five hundred dollars, and costs of said suit shall be collected upon execution as in civil cases"--constitutes an offense within the meaning of section 10 of the Organic Act (Act Cong. May 2, 1890, c. 182 26 Stat. 87), and a civil action brought for the recovery of the statutory penalty must be prosecuted and tried within the county where the violation is alleged to have occured.

An "offense" is a breach of the laws established for the protection of the public, as distinguished from an infringement of mere private rights. The word is used as a genus, comprehending every crime and misdemeanor, or as a species, signifying a crime not indictable but punishable summarily or by the forfeiture of a penalty.

Error from District Court, Garfield County; M. C. Garber, Judge.

Action by the Territory of Oklahoma against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

C. O. Blake, H. B. Low, and Robberts & Curran, for plaintiff in error.

Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the Territory.

KANE C.J.

This was an action, commenced by the territory of Oklahoma, as plaintiff below, against the Chicago, Rock Island & Pacific Railway Company, as defendant below, to recover the penalty for the violation of section 4, c. 15, p. 168, Laws Okl. T. 1903. Section 4 provides that: "It shall be unlawful for any railroad company, express company, or any other common carrier, their officers, agents or servants, to accept or receive within this territory any of the game mentioned in section 1 of this act, for the purpose of carrying or transporting the same to any other place, either within or beyond the limits of this territory, or in any manner handle the same in any way. Any railroad company, express company, or other common carrier, or private individual, who shall, through itself, himself, or its agent, servant or employé, violate any of the provisions of this section, shall forfeit and pay to the territory of Oklahoma, for each violation thereof, the sum of five hundred dollars, to go to the common school fund of said county, together with all costs of suit, including a fee of one hundred dollars to go to the county attorney of the county wherein said suit is brought, which sum of five hundred dollars, and costs of said suit, shall be collected upon execution as in civil cases."

The petition was filed in the district court of Garfield county and alleged, in substance: That the defendant is a corporation, organized under the laws of a state of the United States; that on the -- day of November, 1906, through its agents, servants, and employés, at the city of Okeene, county of Blaine, Okl. T., it did then and there unlawfully accept and receive a large amount of quail for the purpose of carrying and transporting the same from the city of Okeene, Blaine county, territory of Oklahoma, to the city of Chicago, state of Illinois, and on the 30th day of November, 1906, was handling, carrying, and transporting the same in and through Garfield county, Okl. T., contrary to the provisions of section 4, c. 15, p. 168, Laws Okl. T. 1903, and prayed judgment against the defendant for the sum of $500, for the use and benefit of the common school fund, together with an attorney's fee of $100. Thereafter the defendant appeared and demurred to the petition filed therein for the reasons: First, that it appears on the face of the petition that the court had no jurisdiction of the subject of said action; second, that said petition does not state facts sufficient to constitute a cause of action. Thereafter the demurrer to plaintiff's petition was overruled, and defendant permitted to file a motion to make petition more definite and certain. On the 7th day of January, 1907, defendant filed a motion to make petition more definite and certain, by requiring plaintiff to state the day on which said quail were received by the defendant, to require plaintiff to state the party from whom said quail were received, and to allege the number of said quail, and the manner in which they were packed and shipped, which motion was by the court sustained. Plaintiff amended its petition by interlineation, alleging that defendant received the quail on the 30th day of November, 1906, and that the quail were packed in egg cases or boxes and loaded in a freight or box car, to which amended petition defendant filed a demurrer, on the grounds: First, that the court had no jurisdiction of the person of the defendant, or the subject of the action; second, that there is a defect in parties plaintiff; third, that several causes of action are improperly joined; fourth, the petition does not state facts sufficient to constitute a cause of action. Later said demurrer was overruled, to which ruling of the court defendant excepted. Thereafter the defendant filed its answer, alleging that the court had no jurisdiction over the defendant or subject-matter, that the petition did not state facts sufficient to constitute a cause of action against the defendant, and a general denial. Thereafter trial was had before the court and jury, resulting in a verdict for the plaintiff in the penal sum of $500 and $100 attorney's fee, upon...

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