State v. Case

• Decision Date: 31 July 1873
• Citation: 53 Mo. 246
• Parties: STATE OF MISSOURI, Defendant in Error, v. THEODORE S. CASE, Plaintiff in Error.
• Court: Missouri Supreme Court

53 Mo. 246

STATE OF MISSOURI, Defendant in Error,

v.THEODORE S. CASE, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1873.

Error to the Jackson Circuit Court.

Lay & Belch, with Brown & Case, for Plaintiff in Error.

I. The petition is vague and too indefinite to support a judgment for the violation of a penal statute. It does not clearly state the act complained of, whether there was an entire failure to file a statement, or whether an imperfect statement was filed, which was treated as no statement.

II. Section 43 is so ambiguous and confused, and made to affect so many acts or omissions, that it should not be enforced. (State vs. Boon, 1 Taylor, 246; Cheezen vs. State, 2 Cart., Ind., 149; 27 Ala., 35; Sullivan vs. Adams, 3 Gray, 476; Bl. Comm. 91; Dwar. Stat., 2nd. Ed., 587; 8 Pick., 370; Henry vs. Tilston, 17 Vt., 479; Comm. vs. Slack, 19 Pick., 304; U. S. vs. Fisher, 2 Cranch, 358, 386.)

III. The language of section 43 is conclusive, that the omission to comply with section 23, was not intended to subject the officer to the penalty. ““Violation” means an act done, not an omission to act or to do. (2 Bouv. L. Dic., 629.)

IV. Section 43 was not intended to apply to this case. The object of this section, as stated in the case of State vs. Matthews, (44 Mo., 523,) is to give information to a public officer--the superintendent. The legislature having empowered him to obtain this information in manner pointed out in section 13, it was hardly intended to convert him into a common informer, and allow him to proceed in a qui-tam action.H. Clay Ewing, Attorney General, for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This action was brought under the 43rd section of the 3rd article of the act to create an insurance department, to recover a penalty for the violation of the 23rd section of said article.

The action was commenced by the circuit attorney of Jackson County, in the name of the State of Missouri, the State suing as well for herself, as for Wyllys King, as informer. The complainant states, that “The Kansas City Fire & Marine Insurance Company, on March 1st, 1869, was, and ever since has been, and now is an existing Insurance Company formed, organized and incorporated under and according to the provisions of chapter number sixty-seven of the General Statutes of the State of Missouri; that the said Kansas City Fire and Marine Insurance Company was so incorporated to do a Fire and Marine Insurance business, that is to say Insurance business other than life assurance business, with its principal office located and being situated in the City of Kansas, in the County of Jackson aforesaid; and on its organization and incorporation as aforesaid, said Kansas City Fire and Marine Insurance Company did commence to do, and ever since has been and still is doing the business of a Fire and Marine Insurance Company, that is to say, an insurance business other than life assurance business, with its principal office located as aforesaid.

On December 1st, 1870, the defendant, Theodore S. Case, was, and ever since has been, and still is, President of the Kansas City Fire and Marine Insurance Company, situated in said county; that the defendant did not on January 1st, 1871, nor within thirty days thereafter, nor at any time since, prepare under oath, and deposit in the office of the superintendent of the Insurance Department of the State of Missouri, the statement made up for the last fiscal year of said Kansas City Fire and Marine Insurance Company, required by and mentioned in section number twenty-three of an act of the General Assembly of the State of Missouri, entitled, “an act for the incorporation of insurance companies, other than life assurance companies, and for the regulation of insurance business other than life assurance business,” approved March 10th, 1869, in manner and form as is specified in said section No. 23; that the superintendent of the Insurance Department of the State of Missouri, in December, 1870, furnished to the defendant, as president of the said Kansas City Fire and Marine Insurance Company, the blank forms for such statement, but no such statement has since been by any one prepared under oath, and deposited in the office of the Superintendent of the Insurance Department of the State of Missouri; that the defendant did in the year, 1871, violate the said act approved March 10th, 1869, in the manner and form aforesaid, contrary to the form of the statute last mentioned; wherefore and by force of the statute last mentioned, and the forty-third section thereof, the defendant is subject to a penalty of five hundred dollars, for which, the same being due and unpaid, plaintiff demands judgment against defendant, one-half of such penalty, when recovered, to be paid into the treasury of said State, and the other half to said Wyllys King, the informer, &c.

A summons was duly issued ou this complaint, and served on the defendant.

At the return term named in the summons, the defendant failed to appear in the time required by law, and an interlocutory judgment was taken against him.

Afterwards on the 53rd day of said term, the plaintiff and defendant both appeared and submitted the case to the court without answer and without setting aside the judgment by default before taken.

The court, after being fully advised in the premises, finds that the allegations in the petition...