State v. Moody

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

100 S.W. 619

202 Mo. 120

THE STATE, Appellant, v. MOODY

Supreme Court of Missouri, Second Division

March 5, 1907

Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and Barnett & Barnett for appellant.

(1) The State is a proper party plaintiff in this suit. The revenue sought to be recovered belongs to the State. It is required to be paid into the State Treasury. The fact that it is for the use of the game protection fund does not prevent this revenue from belonging to the State, and the State is the proper party to sue for it. State v. Ruby, 77 Mo 610; State v. Bank, 45 Mo. 528; State v Killian, 51 Mo. 80; 44 Am. Dig. (Century Ed.), sec. 178; Wolfee v. State, 79 Ala. 201; Gaston v State, 88 Ala. 459; Brown v. State, 5 Colo. 496; Esley v. People of Illinois, 23 Kan. 510; Delafield v. State of Illinois, 2 Hill 159; State v. Delesdenier, 7 Tex. 76; State v. Thompson, 64 Tex. 690; State v. Travis County, 85 Tex. 435; State v. Burkeholder, 30 W.Va. 593. (2) The court erred in sustaining the demurrer to the petition. It stated a cause of action. It was the duty of the defendant as county clerk to collect one dollar for the use of the State on each license and to collect an additional fifteen cents from the applicant as compensation for the clerk. Laws 1905, secs. 57 and 59, p. 168. The three sections pertaining to this subject must be read together as one section, and taking them together they clearly indicate that the same amount is to be collected from each applicant, namely, a dollar for the State and fifteen cents for the clerk. Laws 1905, secs. 57, 58, 59, pp. 168, 169.

R. S. Matthews, Otho F. Matthews, R. W. Barrow and J. G. Sparrow for respondent.

(1) The State is not the proper plaintiff. The statute provides that all suits shall be prosecuted by the game warden and that the money shall go to the State Treasurer. Could a judgment for costs be entered against the State in this proceeding, would this suit be a bar to suit by the officer entitled to receive the money? State ex rel. v. Crumb, 157 Mo. 545. (2) The petition fails to state a cause of action. The demurrer was properly sustained. The game law authorizes the clerk to collect $ 1 for the license and no more. Laws 1905, p. 168, secs. 57, 58. Where the wording of the statute is plain, it is the duty of the court to construe them according to the words used. City of Westport v. Mastin, 62 Mo.App. 647; State ex rel. v. Johnson, 132 Mo. 105. (3) Section 59 deals solely with the city of St. Louis and is intended for nothing else; reading sections 57 and 59 together it is made plain that the collector of St. Louis is not authorized to collect $ 1.15 at all, but that he shall "retain" his 15 cents and remit the balance to the State treasurer. It is the mistake of the construction of the game warden in claiming $ 1.15 that makes the law unconstitutional as to fees, if at all.

OPINION

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 one dollar on each license collected from hunters, paid only eighty-five cents to the State Treasurer, instead of one dollar; that said licenses are issued to hunters, and one dollar 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. [Laws 1905, p. 158.]

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 one dollar ($ 1) for hunting licenses, and to retain fifteen cents for compensation for issuing same, and to remit the remaining eighty-five 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, "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; Gaston v. State, 88 Ala. 459, 7 So. 340; Esley v. People of Illinois, 23 Kan. 510; Delafield v. State of Illinois, 2 Hill 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. Burkeholder, 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 one dollar for each license issued, and out of that sum retain fifteen cents and pay the remaining eighty-five 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 issued 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. 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 and all other services under the act, and shall pay the balance to the State Treasurer. It will, however, be observed that no provision is made by this section for the payment of the license fee; but this is provided for by section 58, as follows:

"Any person who has been a bona fide resident of this State for six months then last past may procure a license for himself or herself by filing his (or her) affidavit with the clerk of the county where he or she resides . . . paying to the said clerk the sum of one dollar."

Section 59 of said act provides that, "for the purpose of carrying out the provisions of this act, 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 each, and for each license issued such license commissioner shall collect and retain for issuing the same a fee of fifteen cents."

The only express provision in the act for the payment of license fees in the...