Railway Company v. State

Decision Date05 December 1891
CourtArkansas Supreme Court

CERTIORARI to Sebastian Circuit Court, Greenwood District, T C. HUMPHRY, Judge.

Petition denied.

Dodge & Johnson and C. B. Moore for petitioner.

1. The penalty sought to be recovered herein cannot be recovered by indictment, because sec. 5482, Mansf. Dig., provides for a suit by the prosecuting attorney in the name of the State which means a civil action.

2. Section 5478 is unconstitutional. It was enacted under the constitution of 1868. Acts 1868, sec. 34. Art. 9, sec 4, const. 1868, provides that all fines, penalties, etc., shall go to the school fund. The act provides that one-half of the penalty shall go to the informer and the other half to the county.

3. The indictment is fatally defective. Bish., St. Cr., sec. 1043; Wharton, Cr. Pl. and Pr., sec. 163; 5 How. (Miss.), 150; Bish., Cr. Pro., vol. 1, sec. 591; 28 Vt. 583.

4. Defendant was not properly served with process. Mansf. Dig., secs. 2132, 2139. The defendant did not waive this point. It only appeared by a special appearance to move to quash the summons. This does not authorize judgment by default. 5 Ark. 383.

5. There is a fatal variance between the summons and indictment. The indictment was against the railroad company; the summons for the railway; and the judgment is against the railway company.

6. The judgment was in favor of the State for the use of the Greenwood District, etc., whereas the statute provides that only half of the penalty shall go to the county.

7. No evidence or proof offered or introduced to support the charge.

James B. McDonough, Prosecuting Attorney, and W. E. Atkinson, Attorney General, for respondent.

None of the seven reasons urged by petitioner can be taken advantage of upon certiorari except one, viz., the constitutionality of the act. If, the act is void, the judgment is void. If the act is valid, the judgment is valid because all the other objections are mere errors, and might have been corrected on appeal. Section 5482, Mansf. Dig., does not make provision for the manner of suing or the manner of recovery of said penalty. If it did, the remedy would be cumulative. Sec. 2129. The act only provides that the penalty may be sued for by the prosecuting attorney. An indictment is a complaint, and its presentation is suing for a penalty. It is a complaint sworn to by the grand jury. Whart., Cr. Pl. & Pr., sec. 86; Bish., Cr. Pro., vol. 1, sec. 388; 1 Starkie, Cr. Pl., 259 et seq; Anderson, Law Dic.; 4 Bl. Com., 302; Mansf. Dig., sec. 2100; 107 Mass. 194; 24 Wend., 507. The word suit includes not only a civil action, but also a criminal prosecution, as an indictment, etc. Hammond's Nisi Pr., p. 270; Bouvier, L. D.; 2 Pet., 464; 11 F. 251; 144 Mass. 137; 3 Bac. Abr., 542-4; 14 Pet., 566; 91 U.S. 375; 6 Wheat., 408; 4 Wall. 112. The remedy is cumulative and does not abrogate the common law remedy by indictment. 9 Barb., 161; 3 Ind. 447; Bish., St. Cr., sec. 164; 52 Ark. 54. The proper remedy is by indictment. 69 Md. 203; 20 Ark. 145; 45 id., 387; Mansf. Dig., sec. 1963. If indictment is not the proper remedy, advantage cannot be taken by certiorari. A motion should have been made to quash, and, if overruled, an appeal taken. 41 Ark. 488; 1 Bish., Cr. L., secs. 419-20; Redfield on Railways, 515-18; 67 Am. Dec., 471; 75 id., 778; 34 Cal. 48; 91 Am. Dec., 672, and notes; 60 Pa. 369; 54 Ala. 579; 11 Humph., 217.

2. There is no provision regulating the form of summons against a corporation on an indictment. Sections 2132, 2142 refer to natural persons. Section 2139 is not mandatory. The summons should have been treated as amended to conform to the law. 32 Ark. 406; Mansf. Dig., sec. 5083; ib., secs. 5080, 4968; 32 Ark. 278; 22 id., 363; 37 id., 453; 8 id., 316; 25 id., 97; 14 id., 59; 13 id., 414; 34 id., 682; 44 id., 410; 45 id., 34; 40 id., 528; 43 id., 241. Defects in summons will be treated as amended when attacked collaterally. The remedy is by appeal and not certiorari. 47 Ark. 376; 50 id., 115; 43 Ark. 241; 19 id., 306; 4 id., 429; 22 id., 362; 5 id., 664; 36 id., 294. When a summons has in fact been served, it is the duty of defendant to appear. 34 Ark. 494; 43 id., 545. The judgment cured the variance, and the defendant waived it. It is cured by statute. Mansf. Dig., sec. 2110; 30 Ark. 166; 35 id., 384.

3. Section 5478 is constitutional. Article 9, section 4, constitution 1868, only provides how the school fund is made up. It is not all fines, etc., but only the net proceeds of such fines as shall accrue to the State. Under the act only one-half accrued to the State. The act of 1871 repeals that portion of the act of 1868 as gives one-half to the informer. 46 Ark. 450; 51 id., 559. After the act of March 31, 1883, the county is entitled to the whole of said fines, etc. If the law giving the informer half is void, the most extreme view would be that the judgment is excessive. 51 Ark. 213. The county would then get all of it. At most it would only be error, correctible by appeal. 37 Ark. 318. Even if unconstitutional as to the informer's half, the judgment is valid. The other part of the statute prescribing the penalty would be good. 37 Ark. 356; 53 id., 490; 1 S.W. 130; 89 Mo. 564.

4. The record shows there was a hearing and evidence introduced, and that cannot be contradicted. 11 Ark. 373. In such case it is proper to take judgment by default. Pierce on Railroads, 268; 32 N.H. 215. As to whether there was evidence or not, cannot be inquired into on certiorari. 35 Ark. 99. A judgment without evidence is not void. 25 Ark. 60; 24 P. 393.

5. The indictment is good as against attack by certiorari. 58 Me. 176; 4 Am. Rep., 258; 17 Ark. 580; 24 id., 122; 29 id., 173; 17 id., 446; 44 id., 55; 37 id., 318; 43 id., 33.

6. The petition should be dismissed and the writ of certiorari quashed. Certiorari is only allowed in two classes of cases. See 52 Ark. 221. Only jurisdictional defects will be noticed on certiorari, and the only jurisdictional question here is the constitutionality of the act. 51 Ark. 281; 2 So. 559; 62 N.H. 184; 14 S.W. 108; 71 Cal. 322.

Dodge & Johnson in reply.

Cite, in support of the unconstitutionality of the act, Endlich, Int. St., sec. 521; 22 Kan. 1; Cooley, Const. Lim., secs. 156-224.



The State, suing for the use of Sebastian county, recovered a judgment against the petitioner for the penalty fixed by the statute for a failure to ring a bell or sound a whistle in approaching a highway crossing; and the petitioner seeks to quash that judgment in this court upon a certiorari. The statute is as follows: "A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where said road shall cross any other road or street, and shall be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $ 200 for every neglect, to be paid by the corporation owning the railroad, one half thereof to go to the informer, and the other half to go to the county; and the corporation shall also be liable for any damages which shall be sustained by any person by reason of such neglect." Mansf. Dig., sec. 5478.

The grounds upon which the relief is asked are as follows:

1. Because the statute which prescribes the duty provides that penalties for its violation may be recovered in suits by the prosecuting attorney in the name of the people of the State of Arkansas, and this excludes a proceeding by indictment.

2. Because the constitution of 1868, in force when the statute was enacted, provided that the net proceeds of all fines and penalties that accrue to the State should go to the school fund, whereas the statute provided that half of the penalties for its violation should go to the county, and half to the informer.

3. Because the indictment was defective, and its allegations did not disclose a breach of the statute.

4. Because the defendant was summoned to answer a complaint, not an indictment, and was therefore improperly brought into court.

5. Because the indictment was against the St. Louis, Iron Mountain and Southern Railroad Company, and the summons and judgment were against the St. Louis, Iron Mountain and Southern Railway Company.

6. Because the judgment was rendered for the sole benefit of the county, whereas only half of the penalty should, by the terms of the statute, have been adjudged to it.

7. Because judgment was rendered by default.

The restricted office of the writ of certiorari precludes a review of such matters as, coming within the court's jurisdiction, were incorrectly determined; for the petitioner had the right of appeal, which it does not appear to have lost by any unavoidable cause. Such being true, certiorari can be invoked only to set aside a judgment rendered without jurisdiction. Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559. Jurisdiction is defined to be "the right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials. First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue." 1 Black on Judg., sec. 242; Munday v. Vail, 34 N.J.L. 418; Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914. And where the court has a general cognizance over the class of cases to which that to be adjudged belongs, it has jurisdiction of the particular case upon a colorable presentation of the facts necessary to constitute it a member of the class. Grove v. Van Duyn, 44 N.J.L. 654; Plume v. Howard Saving Inst., 46 N.J.L. 211.


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