Railway Company v. State

• Decision Date: 07 May 1892
• Citation: 19 S.W. 572,56 Ark. 166
• Parties: RAILWAY COMPANY v. STATE
• Court: Arkansas Supreme Court

19 S.W. 572

56 Ark. 166

RAILWAY COMPANY v. STATE

Supreme Court of Arkansas

May 7, 1892

APPEAL from Miller Circuit Court, C. E. MITCHEL, Judge.

C. W Bell, for the use of himself and Miller county, Arkansas brought suit against the St. Louis, Arkansas & Texas Railway Co., to collect the statutory penalty for defendant's failure to signal at a certain highway crossing. Defendant demurred because the plaintiff had no capacity to sue, and because the complaint failed to state a cause of action. The court sustained the demurrer upon the first ground. Plaintiff asked leave to amend by making the State a party plaintiff for the use of himself and Miller county--an application in which the prosecuting attorney of the district, on the part of the State, joined. Whereupon the court over defendant's objection permitted the amendment, and allowed the State to be substituted as party plaintiff. Defendant suffered judgment by nil dicit and appealed.

Reversed and remanded.

Bunn & Gaughan and Sam H West for appellant.

1. C.W Bell had no right to bring the suit. Mansf. Dig. secs. 5482, 5324, 4933.

2. It was error to substitute one plaintiff for another. Our statutes of amendment allow the adding of a party plaintiff who has an interest, but does not mean that the complaint of a party who has no cause of action may be amended by substituting one who has such cause. This would be bringing a new cause of action. 67 Am. Dec. 186; 67 Barb. 484; 34 Ark. 144; 97 Am. Dec. 510; 12 How. 407; 14 Pet. 156; 56 Barb. 492; Bliss, Code Pl. secs. 428-9; 14 N.Y. 506; 46 N.Y. 544.

3. The procedure to enforce sec. 5478, Mansf. Dig, is exclusively criminal. 45 Ark. 387; 116 U.S. 616; 38 Ark. 579; 6 id. 131; 101 U.S. 188; 92 id. 214; 13 Wall. 409.

OPINION

HEMINGWAY, J.

This court decided, in the case of Railway Company v. State, 55 Ark. 200, 17 S.W. 806, that if section 5478, Mans. Dig. was unconstitutional in so far as it awards a part of the penalty to an informer, the remaining provisions were legally separable and would stand. We are now asked to review the decision, but nothing is suggested that was not considered upon the hearing of that cause, and we abide in the conviction that our conclusion was correct.

It is next insisted that the act creates and defines a crime, for which the punishment is a fixed penalty; and that a proceeding for its recovery can only be instituted by indictment.

The provision that no man shall be put to answer any criminal charge but by presentment, indictment or impeachment is found in the constitution of 1836, and, in so far as it is material in this case, it was re-enacted in the constitution of 1868. ^[*] It is contended that all acts tending to prejudice the public good, made penal by statute constitute criminal offenses within the meaning of that provision. The act for which a recovery is sought in this case was not a crime at common law, is not declared such by the statute, and is not visited by a penalty that the rules of criminal procedure have any peculiar adaptation to enforce. The legislature did not intend to define a criminal offense; and if it did so, it is because all the acts of a tendency detrimental to the public, which are prohibited by statute, necessarily become criminal offenses. But penalties are imposed generally out of considerations for the public rather than as compensation for a private wrong, for they are superadded to recoveries of actual damage; and if the provision relied upon was ever held to extend to proceedings generally to recover statutory penalties, we are not aware of it. On the contrary, penalties have been claimed and recovered in ordinary civil actions, and upon motions in this as well as in circuit courts, and there is no intimation anywhere that the constitution prescribed a different remedy. It may be that the question has never been pressed, but its decision is involved, in adjudged cases; and a view against that contended for is, and long has been, generally accepted by the bar and the courts. Thus for wilful and wanton wrongs the injured party is allowed to recover, in excess of compensation, exemplary damages as a penalty calculated to promote the public safety. So penalties have been imposed by statute upon telegraph companies, and recoveries by civil action had for a failure to deliver messages, not by way of compensating the party, but to quicken the performance of a public duty. So in other cases penalties are imposed by this court, and by circuit courts, upon motion, which go to compensate no private loss, and are provided to promote the general good. We...