State v. Moody

• Decision Date: 05 March 1907
• Citation: 202 Mo. 120,100 S.W. 619
• Parties: STATE v. MOODY.
• Court: Missouri Supreme Court

100 S.W. 619

202 Mo. 120

STATE v. MOODY.

Supreme Court of Missouri. Division No. 2.

March 5, 1907.

1. STATES — GAME—LICENSES—RECOVERY—ACTIONS BY STATE.

Under Acts 1905, p. 158 [Ann. St. 1906, p. 3604], creating the office of game and fish warden, and requiring all moneys collected by way of license fees or fines for violations of the law to be paid into the state treasury, the state, and not the game warden, is the proper party to sue a county clerk to recover moneys collected on hunters' licenses.

2. SAME—LICENSES.

Acts 1905, p. 158 [Ann. St. 1906, p. 3604], creating the office of game and fish warden, etc., provides in section 57 that county clerks and the license collector of the city of St. Louis shall issue resident hunters' licenses, and shall retain out of the moneys received for each license the sum of 15 cents and pay the balance to the State Treasurer. Section 58 provides that any resident may procure a license by paying to the clerk $1, and section 59 provides that "the license collector of the city of St. Louis shall correspond to the county clerks of the various counties of this state. * * * He shall issue resident hunters' licenses and collect therefor a fee of $1.00 each, and for each license issued such license commissioner shall collect and retain for issuing the same a fee of fifteen cents." Held, that the statute means that $1 is to be collected in all cases and the 15 cents deducted from that, and not $1.15.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by the state against Nick M. Moody. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The Attorney General and Barnett & Barnett, for the State. R. S. Matthews, Otho F. Matthews, R. B. Barrow, and J. G. Sparrow, for respondent.

BURGESS, J.

This suit is brought by the state of Missouri against Nick M. Moody, clerk of the county court of Macon county, to recover a balance collected on hunters' licenses in said county—the allegation of the petition being that defendant had out of the $1 on each license collected from hunters, only paid 85 cents to the State Treasurer, instead of $1; that said licenses are issued to hunters, and $1 for the state revenue is paid to the clerk for each license issued, by virtue of an act of the General Assembly entitled "An act relating to the preservation, propagation and protection of game animals, birds and fish, creating the office of game and fish warden, creating a game protection fund, and appropriating money therefrom," approved March 10, 1905. Defendant demurred to the petition on the following grounds: "First, because said suit, as appears from the petition, is not brought in the name of the proper party plaintiff; second, because said petition wholly fails to state a cause of action; third, because, under the laws of the state of Missouri, defendant is only authorized to collect $1 for hunting licenses, and to retain 15 cents for compensation for issuing same, and to remit the remaining 85 cents to the state of Missouri; fourth, because on the face of the pleadings it fully appears that the defendant has complied with the law; fifth, because the law governing this case is unconstitutional." The demurrer was sustained, and, plaintiff declining to plead further, judgment was rendered for defendant upon the demurrer, from which judgment plaintiff, after an unsuccessful motion for a new trial, appeals.

The first point presented for consideration upon this appeal is as to whether the suit is brought in the name of the proper party. Defendant contends that the suit should be prosecuted in the name of the game warden; but under the act of March 10, 1905 (Act 1905, p. 158 [Ann. St. 1906, pp. 3605-3621]), "creating the office of game and fish warden," all moneys collected by way of license fees and by way of fines for violations of the law are required to be paid into the state treasury and become part of the revenue of the state. The fact that the money so collected is for the use of the game protection fund does not prevent the state from controlling it, and the state is the proper party to sue therefor. In the case of State v. Rubey, 77 Mo. 610, the right of the state to maintain an action for her own funds, after default made in paying same into the state treasury, is clearly recognized. The same rule is announced in Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590; Gaston v. State, 88 Ala. 459, 7 South. 340; Esley v. People of Illinois, 23 Kan. 510; Delafield v. State of Ill., 2 Hill (N. Y.) 159; State v. Delesdenier, 7 Tex. 76; State v. Thompson 64 Tex. 690; State v. Travis County, 85 Tex. 435, 21 S. W. 1029; State v. Burkholder, 30 W. Va. 593, 5 S. E. 439. In the case of Brown v. State, 5 Colo. 496, it is said: "It is the accepted law that a state, as a political corporation, may maintain, in its corporate name and in its own courts, actions for the enforcement of its rights or the redress of its wrongs, independently of any statutory provision therefor. The right springs from the general principle that every person, whether natural or artificial, capable of making a contract or suffering wrong, may have an action to enforce the one and to redress the other."

It is insisted by defendant that the demurrer was properly sustained because, under the law, the county clerks are to collect $1 for each license issued, and out of that sum retain 15 cents, and pay the remaining 85 cents into the state treasury. Section 57 of the act, after providing that county clerks and the license collector of the city of St. Louis shall issue resident licenses, further provided that "such clerk and the license collector of the city of St. Louis shall retain out of the moneys received for each license issued the sum of fifteen cents, which shall cover the swearing of the applicant to the affidavit herein referred to and all other services under this act, and shall pay the balance to the State Treasurer on the first day of each month, and report to the state game and fish warden the number of licenses and the amount of money remitted to the State Treasurer on the first day of each month." There is no ambiguity in this section of the statute, for it says, in plain and unequivocal language, that the county clerk and license collector of the city of St....