State v. Excelsior Springs Light, Power, Heat & Water Co.

• Decision Date: 19 May 1908
• Court: Missouri Supreme Court
• Parties: STATE v. EXCELSIOR SPRINGS LIGHT, POWER, HEAT & WATER CO.

110 S.W. 1079

212 Mo. 101

STATE v. EXCELSIOR SPRINGS LIGHT, POWER, HEAT & WATER CO.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

WATERS AND WATER COURSES—POLLUTION— STATUTES—OFFENSES.

Laws 1905, p. 163, § 28 (Ann. St. 1906, § 7500-28), makes it an offense for any person or persons, firm or corporation, to "suffer or permit" any dyestuff, coal tar, oil, sawdust, poison, or deleterious substances to be thrown, run, or drained into the waters of the state in quantities sufficient to injure, stupefy, or kill fish. Held, that such section is fatally defective for failure to make the discharge of deleterious substances into a stream, as distinguished from the suffering or permitting the same to be so discharged, an offense, and for failure, also, to impose any duty on those designated in the section to prevent or prohibit the acts therein specified.

Appeal from Circuit Court, Clay County: J. W. Alexander, Judge.

The Excelsior Springs Light, Power, Heat & Water Company was convicted of discharging poisonous matter into a river, in violation of Laws 1905, p. 163, § 28 (Ann. St. 1906, § 7500-28), and it appeals. Reversed.

This cause is here upon appeal by the defendant from a judgment of the circuit court of Clay county for a violation of the provisions of section 28 of what was commonly called the "Game and Fish Law" enacted by the General Assembly of this state in 1905. Laws 1905, p. 163 (Ann. St. 1906, § 7500-28). The information, based upon the provisions of the section of the statute heretofore referred to and upon which this judgment rests, omitting formal parts, was as follows: "Ralph Hughes, prosecuting attorney within and for the county of Clay, in the state of Missouri, informs the court (upon the affidavit of W. A. Higbee, a deputy game and fish warden of the state of Missouri, herein filed), that the Excelsior Springs Light, Power, Heat & Water Company, a corporation organized and existing according to law, did, on the 23d day of May, A. D. 1906, at the county of Clay and state of Missouri, by and through its servants and employés, willfully and unlawfully suffer and permit certain coal tar, coal gas, and other poisonous and deleterious substances to be thrown, run, and drained into certain waters of the state of Missouri, to wit, into a stream or branch commonly known and designated as the `Dry Fork of Fishing River,' and from thence to run and drain into certain other waters of the state of Missouri, to wit, into a stream commonly known and designated as the `East Fork of Fishing River,' in quantities sufficient to injure, stupefy, and kill the fish which inhabit said waters at and below the point where said coal tar, coal gas, and other poisonous and deleterious substances were suffered and permitted to be thrown, run, and drain into such waters as aforesaid, against the peace and dignity of the state." In order to determine the legal propositions involved in this case it may be conceded that there was some evidence tending to show that the refuse from the gas plant which went into the river contained some coal tar, but as to the amount of coal tar in it, or as to whether it was the coal tar or some other substances in the refuse which caused the danger or killed the fish, the evidence is not entirely satisfactory. The court instructed the jury, and the cause was submitted to them, and a verdict was returned finding defendant guilty and assessing its punishment at a fine of $200. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. From the judgment, which was entered in accordance with the verdict, the defendant prosecuted this appeal, and the record is now before us for our consideration.

Harris L. Moore, for appellant. The Attorney General and Rush C. Lake, for the State.

FOX, P. J. (after stating the facts as above).

The record before us discloses that the offense of which defendant was convicted was a misdemeanor; but it also is made to appear that the appeal was granted to this court for the reason that the validity and constitutionality of the section upon which this prosecution is based was challenged. Numerous errors are assigned as a basis for the reversal of this judgment: First. Complaint is made that the trial court did not properly declare the law upon the facts developed at the trial. Secondly. It is earnestly insisted that section 28, upon which this prosecution is predicated, is void, for the reason that it does not intelligently describe or define an offense. It is apparent that the second proposition, which involves the validity of this statute, is the vital and overshadowing one in this cause, and, if the insistence of learned counsel for appellant is to be maintained, the necessity for discussing other questions presented can be dispensed with. Hence we will direct our attention first to the discussion of the second proposition.

Section 28, p. 163, Laws 1905 (Ann. St. 1906, § 7500-28), upon which this prosecution is based, provides that "it shall be unlawful for any person or persons, firm or corporation to suffer or permit any dyestuff, coal tar, oil, sawdust, poison or deleterious substances to be thrown, run or drained into any of the waters of this state in quantities sufficient to injure, stupefy or kill fish which may inhabit the same at or below the point where any such substances are discharged or permitted to flow or thrown in such waters. Any person or persons, firm or corporation offending against any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than $200.00 nor more than $500.00 for each offense." It will be observed that the provisions of that section undertake to create and define an offense by simply saying that any person or persons, firm or corporation, who shall suffer or permit any poisonous or deleterious substances to be thrown, run, or drained into the waters of this state in quantities sufficient to injure, stupefy, or kill fish shall be deemed guilty of a misdemeanor. No one can read the provisions of that section and escape the conclusion that it is...