City of Charleston ex rel. Brady v. McCutcheon, s. 41499

• Decision Date: 13 February 1950
• Docket Number: Nos. 41499,41554,41591,s. 41499
• Citation: 360 Mo. 157,227 S.W.2d 736
• Parties: CITY OF CHARLESTON ex rel. BRADY et al. v. McCUTCHEON et al. CITY OF FREDERICKTOWN ex rel. BRADY et al. v. MERCIER et al. CITY OF SIKESTON ex rel. BRADY et al. v. McCUTCHEON et al.
• Court: Missouri Supreme Court

Page 736

227 S.W.2d 736

360 Mo. 157

CITY OF CHARLESTON ex rel. BRADY et al. v. McCUTCHEON et al.

CITY OF FREDERICKTOWN ex rel. BRADY et al. v. MERCIER et al.

CITY OF SIKESTON ex rel. BRADY et al. v. McCUTCHEON et al.

Nos. 41499, 41554, 41591.

Supreme Court of Missouri, en Banc.

Feb. 13, 1950.

Rehearing Denied March 13, 1950.

R. P. Smith, Robert G. Brady, Cape Girardeau, for appellants.

Bailey & Craig, Sikeston, for respondents O. W. McCutcheon, Richard Logan, W. R. McCutcheon and Duree Medley.

Melvin Englehart, Fredericktown, Finch & Finch, Cape Girardeau, for respondents Valle Mercier and L. A. Mercier.

Oliver & Oliver, Cape Girardeau, amicus curiae.

CONKLING, Judge.

Each of the appeals in these three cases presents to us the question of the constitutionality of the same statutes, R.S.Mo. 1939, Secs. 14958 to 14961, inclusive, Mo.R.S.A. Those statutes (among other things) required aisles three feet in width between the ends of the rows of seats and the outer side walls, in certain places of public amusement. Penalties for any violation were provided.

Robert G. Brady and R. P. Smith, the appellants in each of these cases are both plaintiffs, and attorneys. The three petitions, filed on December 29, 1948 and January 3 and 4, 1949, prayed penalties for each violation for the five years preceding the filing of each petition. In each respective petition it is alleged that the named municipality 'is styled a plaintiff * * * as required by Sec. 14961 Mo.Rev.stat.1939', Mo.R.S.A., and that each respective city 'has no other right, title or interest.'

In each respective petition it is alleged that, for five years or more, the defendants therein named had owned or operated one or more theatres in the city therein named and had failed to comply with R.S.Mo. 1939, Sec. 14958, Mo.R.S.A. in that, in each such theatre so owned or operated, 'there is no aisle whatsoever along the outward ends of the rows of seats nor around or along the ends of all rows of seats'. These are qui tam actions. Each day upon which the provisions of the statute were not complied with carried a possible forfeiture of from $20 to $5,000, one-half thereof payable 'to the person making the complaint', without proof that any one was affected by noncompliance or that any one could have benefitted by compliance. In the City of Charleston case (two theatres involved) plaintiffs pray a recovery of more than $18,000,000. In the City of Fredericktown case (one theatre) plaintiffs pray a recovery of more than $9,000,000 and in the City of Sikeston case (two theatres) a recovery of more than $18,000,000 is prayed. In each case plaintiffs pray also an order cancelling the license of each theatre, and enjoining any further performance therein.

To the separate petition in each case the defendants therein filed a motion to dismiss alleging the unconstitutionality of the statutes involved for reasons specifically therein stated. Each of the three motions to dismiss were sustained, each of the three petititons was dismissed and these appeals duly followed. In the Charleston and Sikeston cases (then pending in the 28th Judicial Circuit) the circuit court dismissed the petitions and held that the statutes were unconstitutional because, among other reasons, they were local and special in character. In the City of Fredericktown case (then pending in the 27th Judicial Circuit) the circuit court dismissed the petition and held the statutes unconstitutional because, among other reasons, they were local and special in character.

The briefs of the respondent-defendants urge the unconstitutionality of the statutes for many other reasons also but, in the view we take of these statutes we need consider but one reason. It is our opinion that the statutes are local and special and therefore unconstitutional. That view and ruling will dispose of each of these three cases.

These four sections of our statutes were enacted in 1877. See Laws Mo. 1877, pages 328 and 329. In the first section, 14958, it was required, among other things, that every place for public amusement have an aisle three feet in width 'to run along the outward ends of the said rows of seats, and also around or along the ends of all rows of seats'. Because no other violation of the statutes is alleged in any of the three petitions it is unnecessary to notice the other requirements of Sec. 14958. In Sec. 14959 it was required that all subsequently constructed places of public amusement conform to the requirements of Sec. 14958. In Sec. 14960 it was provided that no license should be given for any public amusement in any place not conforming to the various requirements laid down in Sec. 14958.

The last section (14961) was the important one and provided the penalties. For failure by the owner or operator of a place of public amusement to have a three foot aisle 'along the outward ends of said rows of seats', (i. e., next to the side walls of the theatres) it was provided that the owner or operator should (1) forfeit his license; (2) pay a fine of not less than $20 nor more than $5,000 for every act of noncompliance with any of the provisions of the three preceding sections, and for every violation of any of them; (3) 'to be recovered upon the complaint of any person in an action of debt in any court of competent jurisdiction held in the town, village or city where the offense shall occur, and in the name of such town, village, or city.' (emphasis ours). This section also provided that, 'One-half of the recovery in every case shall be paid to the person making the complaint, and the other half shall be paid to the treasurer of such town, village or city for the use and benefit of the public common schools thereof.'

Defendants contend the statutes are local and special in violation of Sec. 53 of Article IV of the Constitution of 1875 and of Sec. 40 of Article III of the Constitution of 1945, Mo.R.S.A.

In an action brought to recover a statutory penalty the statute must be strictly and literally construed. State ex rel. Ashby v. Cairo Bridge & Terminal Co., 340 Mo. 190, 100 S.W.2d 441. Penal provisions of a statute, or of a statute penal in nature are always strictly construed, and can be given no broader application than is warranted by its plain and unambiguous terms. McClaren v. G. S. Robins & Co., 349 Mo. 653, 162 S.W.2d 856. Certainly an unambiguous statute, penal in nature, neither by implication nor otherwise, can be construed to be something other than it was written to be.

The statute here considered provided for a recovery of the stated penalties only in a 'court of competent jurisdiction held in the town, city or village where the offense shall occur'. Thus there was created an inequality of burden on persons who might perform the same act. A violation of the statute, if it occurred in a town, village or city where the 'court of competent jurisdiction' was not 'held', or if the violation occurred outside a town, village or city where such court was 'held', was not subject to the penalties. Thus an improper and unfair immunity was granted. The statute was therefore discriminatory. Such a classification of places of violations for which penalties were recoverable, i. e., upon the basis of whether a court of competent jurisdiction was held or not held in the town, village or city, was arbitrary, unreasonable and void. State ex rel, Transport Manufacturing & Equipment Co. v. Bates et al., Mo.Sup., 224 S.W.2d 996. The statute did not operate alike on all persons for the same violations, and did not operate and apply uniformly throughout the state. The fact that a violation was made an offense only when it occurred in a town, village or city (and then only if such court was held therein) is in and of itself sufficient to nullify the penalty section of the act. Such penal statutes must operate uniformly everywhere in the state, in rural areas as well as within towns, villages and cities, and without regard to whether such court is held therein. This penalty section is local only and is void. State ex rel. McCaffrey v. Bailey, 308 Mo. 444, 272 S.W. 921. It is imperative that inequalities in the uniformity of operation of a statute be effected by the legislature, and not by judicial action in the guise of interpretation.

It may be true that in 1877, when this statute was enacted, such places of amusement as were then contemplated in this statute were always within towns, villages or cities. But that fact did not free the section providing the penalties from the unconstitutional infirmities it then and thereafter had. Now, however, all know that many theatres are wholly outside of any town, village or city, and along heavily travelled highways in suburban areas, and between towns along highways. Many more could and no doubt will be so located. In 1877, and in the seventy odd intervening years, courts of such jurisdiction were not held in many towns and villages. We judicially notice where courts were held.

The exception plainly made in this statute as to offenses in places of amusement in towns, villages or cities where such courts were never held, and as to such offenses outside of a...