State v. Howe Scale Co. of Illinois

• Decision Date: 07 April 1914
• Docket Number: No. 14,224.,14,224.
• Citation: 166 S.W. 328,182 Mo. App. 658
• Parties: STATE ex rel. JONES, Circuit Atty., v. HOWE SCALE CO. OF ILLINOIS.
• Court: Missouri Court of Appeals

166 S.W. 328

182 Mo. A. 658

STATE ex rel. JONES, Circuit Atty., v. HOWE SCALE CO. OF ILLINOIS.

No. 14,224.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

Rehearing Denied April 24, 1914.

1. PENALTIES (§ 16).

Rev. St. 1909, § 3040, providing that foreign corporations failing to comply with the law shall "be subject to a fine" to be recovered in proceedings instituted by the prosecuting attorney, is not strictly criminal in character, but is remedial as well, and, while it may be an information would lie, the penalty may be recovered in a civil action, as the offense is not denounced as a misdemeanor like the offenses described in other sections relating to the same subject-matter, the word "penalty" being used interchangeably with that of "fine," and the direction to the prosecuting attorney to "institute proceedings to recover" such fine is suggestive of civil rather than criminal proceedings.

2. PENALTIES (§ 1) — NATURE — "FINE" — "PENALTY."

While the word "fine" implies punishment for a criminal offense, it also implies a penalty, sometimes recoverable by civil action, and, while both words are suggestive of punishment, "penalty"

is of broader significance, being a generic term which includes both fines and forfeitures.

3. STATUTES (§ 205) — CONSTRUCTION — GENERAL RULES — STATUTES IN PARI MATERIA.

While the court in interpreting a statute must ascertain and expound the intention of the Legislature from its words and context, other sections in pari materia, especially when part of the same act, may be looked to for aid in arriving at the true meaning.

4. DISTRICT AND PROSECUTING ATTORNEYS (§ 9) — POWERS.

A civil action to recover a penalty under Rev. St. 1909, § 3040, providing that proceedings to collect the same shall be instituted by the prosecuting attorney of the county, may be brought by the circuit attorney in the city of St. Louis, as the word "county" includes the city of St. Louis, which exists under an organization similar to that of a county, and, while it possesses a prosecuting attorney, his duties relate solely to criminal prosecutions, and under section 975 the circuit attorney in that city is charged with the same duties as prescribed by the article of which it is a part for prosecuting attorneys elsewhere, and section 1007 in the same article requires prosecuting attorneys to commence and prosecute all civil actions in which the state may be concerned.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by the State, on the relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, against the Howe Scale Company of Illinois. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 161 S. W. 789.

McPheeters & Wood and Wm. R. Gilbert, all of St. Louis, for appellant. Seebert G. Jones and Forrest G. Ferris, both of St. Louis, for respondent.

NORTONI, J.

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 $1,000,' as provided by section 1026, R. S. 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, R. S. 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...