State ex rel. Jones v. Howe Scale Company of Illinois
| Decision Date | 07 April 1914 |
| Citation | 166 S.W. 328,182 Mo.App. 658 |
| Parties | STATE ex rel. JONES, Respondent, v. HOWE SCALE COMPANY OF ILLINOIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
AFFIRMED.
Judgment affirmed.
McPheeters & Wood and Wm. R. Gilbert for appellant.
(1) The court erred in overruling appellant's demurrer on the ground that the court had no jurisdiction. By section 3040 failure to comply with requirements of section 3039 subjects the offender to a fine of not less than $ 1000. An offense punishable by fine only is a misdemeanor. Section 4925, R. S 1909. A violation of a statute, punishable by fine only, is a misdemeanor and properly prosecuted in the court of criminal correction. State v. Fleming, 221 Mo. 451. (2) The court erred in overruling the demurrer because there was no capacity in plaintiff or relator. The direction to the prosecuting attorney adds nothing to his natural capacity as a party litigant, but merely adds to his other duties, that of enforcing this law. State v. Wabash, 89 Mo. 562, 569. Conceding for the sake of argument merely that the prosecuting attorney might maintain a suit, no capacity is conferred upon the circuit attorney to sue under this law. The direction to the prosecuting attorneys contained in section 3040 is not applicable to the city of St. Louis. State v. Whittaker, 160 Mo. 59. This omission of the law to specially mention the circuit attorney precludes its application to the city of St. Louis. State ex rel. v. Alt, 224 Mo. 493.
John T. Barker, Attorney-General, and Wm. M. Fitch, Assistant Attorney-General, for respondent.
(1) Whenever a general statute provides that the prosecuting attorney of a county shall perform a certain duty, then that duty shall be performed by the circuit attorney of the city of St. Louis, unless there is an express provision to the contrary. Sec. 975, R. S. 1909; Sec. 976, R. S. 1909. When the word county appears in our code of civil procedure or general statutes it shall be construed to include the city of St. Louis. Sec. 2169, R. S. Mo. 1909; Sec. 8057; State ex rel. v. Wilder, 198 Mo. 167; Henderson v. Koenig, 168 Mo. 356; State ex rel. v. Mason, 155 Mo. 486. (2) The section providing for suit to collect penalty from a foreign corporation for failure to take out a license before transacting business in this State provides for a civil action and not a criminal prosecution. Sec. 3040, R. S. Mo. 1909; State ex rel. Jos. W. Folk, Cir. Att'y, v. Land Co., 97 Mo.App. 226; State ex rel. v. Pond Co., 135 Mo.App. 81; See, also, Secs. 3030, 3031, 3034, 3047, R. S. 1909.
This is a suit under the statute for a penalty. Defendant interposed a demurrer to plaintiff's petition, which was overruled by the court. Upon its demurrer being thus overruled, defendant declined to plead further and suffered judgment to go against it, as is frequently done in such cases. The appeal is prosecuted from this judgment, and the questions for consideration arise on the face of plaintiff's petition. The petition, omitting formal parts and signature, is as follows:
"The State of Missouri, at the relation of Seebert G. Jones, Circuit Attorney of the city of St. Louis, for first amended petition states that in 1906 and up to the date of institution of the suit, the Howe Scale Company of Illinois was a corporation for pecuniary profit, organized under the laws of Illinois, and not a railroad nor an insurance company; that it was engaged, other than through drummers and traveling salesmen, in manufacturing and selling scales, machinery, etc., in the State of Missouri, and that its principal office within the State was located in St. Louis; that defendant neglected and failed to file in the office of the Secretary of State of the State of Missouri a copy of its charter and articles of association, duly authenticated by the proper authority, together with a sworn statement under its corporate seal, particularly setting forth the business of the corporation which it was engaged in carrying on or which it proposed to carry on in this State, and its principal officer or agent in Missouri had failed to make and forward to the Secretary of State, with the affidavits required, a statement sworn to of the proportion of the capital stock of said corporation represented by its property located and business transacted in Missouri, setting out the location of its principal office or place of business in this State for the transaction of its business where legal service might be obtained upon it, and had neglected to pay into the State treasury any incorporating tax or fee; 'whereupon plaintiff states that defendant is subject to a fine of not less than $ 1000,' as provided by section 1026, Revised Statutes 1899, for which plaintiff asked judgment."
The suit was instituted in the circuit court of the city of St. Louis, which possesses jurisdiction in civil cases alone, as, under certain provisions of the statutes, cases involving misdemeanors are committed to the court of criminal correction, and felonies to a separate division of the circuit court possessed of jurisdiction in criminal cases. Because of this, it is urged, on the demurrer, that the court possessed no jurisdiction whatever over the subject-matter of the action, and the argument proceeds in the view that the offense for which the penalty is sought to be recovered is a misdemeanor under our statute because it is denounced through levying a fine therefor. The question thus presented is to be disposed of on a consideration of the statute declaring the penalty and authorizing its recovery. The statute on which the suit predicates is parcel of the provisions relating to foreign corporations, which, in substance, prescribes conditions upon which they may be authorized to transact business in the State.
The suit predicates on section 3040, Revised Statutes 1909, which is as follows:
"Every corporation for pecuniary profit, formed in any other State, territory or country, now doing business in or which may hereafter do business in this State, which shall neglect or fail to comply with the conditions of this law, shall be subject to a fine of not less than one thousand dollars, to be recovered before any court of competent jurisdiction; and it is hereby made the duty of the Secretary of State, immediately after August 1, of the year 1891, and as often thereafter as he may be advised that corporations are doing business in contravention to sections 3037 to 3041, inclusive, to report the fact to the prosecuting attorney of the county in which the business of such corporation is located, and the prosecuting attorney shall, as soon thereafter as is practicable, institute proceedings to recover the fine herein provided for, which shall go into the revenue fund of the county in which the cause shall accrue; in addition to which penalty, on and after the going into effect of said sections no foreign corporation, as above defined, which shall fail to comply with said sections, can maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort: Provided, that the provisions of this section shall not apply to railroad companies which have heretofore built their lines of railway into or through this State; nor to 'drummers' or traveling salesmen soliciting business in this State for foreign corporations which are entirely nonresident."
Because this statute declares such corporations as fall within its terms "to be subject to a fine," it is urged that it creates and denounces a misdemeanor, which may be prosecuted alone in St. Louis in the court of criminal correction, on information by the prosecuting attorney. The entire argument proceeds on and from the use of the word "fine," and this, too, on the theory that a fine obtains only as punishment for such an infraction of the law as constitutes a misdemeanor. It is true that the word "fine" in and of itself implies punishment for a criminal offense, but it is not true that this fact excludes every remedy other than a criminal prosecution to recover it. Indeed, the word "fine" implies, as well, penalty for the infraction of a statute prescribing an offense which, in some cases, may be recovered by civil action. Bouvier's Law Dictionary, in considering the word "fine" as it obtains in criminal law, says it intends For a further consideration of the question, see Hanscomb v. Russell, 11 Gray (Mass.) 373; Atchison &...
To continue reading
Request your trial