St. Louis, Iron Mountain & Southern Railway Company v. State

• Decision Date: 10 July 1916
• Docket Number: 133
• Citation: 187 S.W. 1064,125 Ark. 40
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE
• Court: Arkansas Supreme Court

187 S.W. 1064

125 Ark. 40

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE

No. 133

Supreme Court of Arkansas

July 10, 1916

Appeal from Pope Circuit Court; A. B. Priddy, Judge; reversed as to case No. 2081; affirmed as to case No. 2080.

Judgment reversed.

Thos B. Pryor and W. P. Strait, for appellant.

1. This prosecution is under Acts 1911, 263. Penal statutes, * * * strictly construed--nothing will be taken as intended, not clearly expressed. 79 Ark. 517; 107 Id. 450; 6 Id. 131; 43 Id. 415; 87 Id. 411; 64 Id. 271. A failure to properly block all the frogs, constitutes only one offense. All omissions are only one continuing offense, and a conviction in the first case is a bar to further convictions. 107 Ark. 450. See, also, 6 Id. 131; 43 Id. 415; 87 Id. 411; 68 Id. 34; 79 Id. 313; 64 Id. 271; 13 Am. & Enc. Law (2 ed.) 63; 86 Penn. St. 427; 61 S.W. 275; 7 Johns. (N. Y.) 134; Acts 1911, p. 11, as construed in 107 Ark. 450-454. The court erred in overruling the demurrer and in holding that this act, No. 261, Acts 1911, created a criminal offense; but, if so, the conviction in the first case was a bar to any further prosecution.

Hill Fitzhugh & Brizzolara, amici curiae.

1. The circuit court had no jurisdiction for the reason that the actions are civil in their nature, and having been instituted before a justice of the peace, such court had no jurisdiction, and the circuit court acquired none on appeal. The act does not create a crime, but a public duty to be enforced civilly. 48 Ark. 301; 107 Id. 450; 220 U.S 589; 214 Id. 1013; 154 F. 95; 98 App.Div. N. Y. 450; 83 N.E. 459; 45 Ark. 387. This last case was relied on by the State, but it has no bearing on this case.

2. There was only one offense. 1 Bish. New Cr. Law, § 1061 and note; 8 Ct. Ct. Reporter, 604; 97 S.W. 720-4; 105 Ark. 60; 56 Id. 350; 59 Ala. 64; 46 N.Y. 644.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant.

1. The act creates a public offense. Kirby's Digest, § 1516. The appellant's citations, 107 Ark. 574; 63 Id. 136 and 56 Id. 166, shed no light upon the construction of the act. The others do not apply here.

2. The act speaks for itself and creates a crime. 111 F. 525; 55 Minn. 183, etc. See, Kirby's Digest, §§ 1707, 1647, 1653-5-6. A fine is a penalty.

3. The plea of former conviction will not stand. Appellant was liable for each and every violation of the act--separate offenses. 107 Ark. 450.

OPINION

HART, J.

On the 10th day of August, 1915, the prosecuting attorney filed an information before a justice of the peace in Pope County, Arkansas, charging that the St. Louis, Iron Mountain & Southern Railway Company, on the 2d day of August, 1915, did unlawfully fail, neglect and refuse to place and maintain blocks of sufficient size to prevent employees from getting their feet caught in the fifth frog east of the icing station in the yards at Russellville, Ark., as required by section 1, Act 261, of the General Acts of 1911.

On the 11th day of August, 1915, the prosecuting attorney filed another information before a justice of the peace in Pope County, charging that the same railroad company on the 3d day of August, 1915, failed, neglected and refused to place and maintain blocks of sufficient size to prevent employees from getting their feet caught in a certain frog; being the second frog east of the icing station in Russellville, Arkansas, as required by section 1, Act 261, of the Acts of 1911. The defendant was convicted in each case before the justice of the peace and took an appeal to the circuit court. The trial in the circuit court again resulted in the conviction of the defendant in each case, and from the judgments rendered, the defendant has appealed to this court.

The cases were consolidated here for the purpose of hearing.

The informations were filed by the prosecuting attorney under Act 261 of the Acts of 1911. The act reads as follows: "Section 1: That any company owning or operating any railroad in this State shall be required to place and maintain blocks of sufficient size in all its frogs and guard rails to prevent employees from getting their feet caught therein."

"Section 2. Any company owning and operating any railroad in this State violating the provisions of this act, shall be liable on conviction to a penalty of a fine of not less than $ 25 for each separate offense." General Acts of 1911, pages 257, 258.

In construing the switch light statute which was passed at the same session of the Legislature, we said, "The act creates no public offense, and, according to its terms, subjects the railroad to a penalty to be recovered by civil action in the name of the State." St. Louis, Iron Mountain & S. Ry. Co. v. State, 107 Ark. 450, 155 S.W. 517. So, too, in the Kansas City, Etc., Ry. Co. v. State, 63 Ark. 134, 37 S.W. 1047, in construing the statute requiring railroad companies to give a signal for public road crossings the court said that the act created no public offense, and that the proceedings to collect the penalty of the statute were in the nature of a civil action. Counsel for the defendant claimed that these decisions are decisive of the present cases and in effect hold that the recovery of the statutory penalty must be in an action of a civil instead of a criminal nature. We do not agree with counsel in this contention. In those cases the words, "creates no public offense" were used in their ordinary acceptation, and meant that the act did not create a criminal offense within the meaning of article 2, section 8, of our Constitution which provides that no person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in certain enumerated cases. This is shown by the reasoning of the court in the case of Railway Company v. State, 56 Ark. 166, where the court had under consideration the section of the statute which provides a penalty for failure of a railway company to signal at a highway crossing. Section 1546 of Kirby's Digest, which is a part of our criminal code provides that a public offense is any act or omission for which the law prescribes a punishment. Section 2082 of Kirby's Digest, which is also a part of our criminal code, reads as follows: "A public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the State of Arkansas, or in the name of an individual or corporation, where the whole fine is given to such individual or corporation. The proceedings in penal actions are regulated by the practice in civil actions."

So it will be seen that under our code the recovery of statutory penalties may be by actions of a civil or criminal nature as the Legislature may direct. The act providing the penalty for the failure of a railroad company to light switches contains a clause which provides in express terms that the penalty shall be recovered in civil actions in the name of the State. St. Louis, I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S.W. 517. This act was passed at the same session of the Legislature as the act now under consideration. The act now under consideration does not provide that the penalty shall be recovered in a civil action in the name of the State. The omission is significant in indicating that it was the intention of the Legislature that the penalty under the frog statute should be recovered by criminal proceedings.

As said by Mr. Justice Field, in United States v Chouteau, 102 U.S. 603, 26 L.Ed. 246, "Admitting that the penalty may be recovered in a civil action, as well as by a criminal prosecution, it is still as a punishment for the infraction of the law. The term 'penalty' involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution. * * * To hold otherwise would be to sacrifice a great principle to the mere form of procedure." The penalty provided by the statute is a punishment that the State inflicts upon the carrier which has violated the protective measures provided by the statute. The statute in express terms provides that the company violating the provisions of the act shall be liable on conviction to a penalty of a fine." The words "fine, penalty and conviction" convey the idea of punishment, imposed and enforced by the State for a crime or offense against its laws. The penalty denounced by the statute was in the nature of a punishment for the nonperformance of the acts imposed by the statute. There is nothing in the language used which indicates that the Legislature intended that the proceedings should be regulated by the practice in civil actions. This the Legislature had the power to do, but it is sufficient to say that it has not done so. It is manifest that the...