State v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 24 December 1913
• Citation: 162 S.W. 144,253 Mo. 642
• Parties: STATE v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

162 S.W. 144

253 Mo. 642

STATE v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

December 24, 1913.

1. CONSTITUTIONAL LAW (§ 26)—CONSTITUTIONAL LIMITATIONS—CONSTRUCTION—STATUTES.

The power to enact laws is subject to the limitations of the Constitution, whether expressed by prohibitory clauses or by affirmative provisions.

2. CARRIERS (§ 2)—FAILURE TO PROVIDE FACILITIES — PENALTIES — VALIDITY OF STATUTE.

The stipulation in Rev. St. 1909, § 3158, that the penalty imposed on a railroad corporation for failure to provide certain facilities for the handling and transportation of freight shall be paid to the good roads fund, being violative of Const. art. 11, § 8, providing that all penalties shall belong to the county public school fund, is void.

3. STATUTES (§ 64)—PARTIAL INVALIDITY— EFFECT.

The unconstitutional stipulation in the penalty provision of Rev. St. 1909, § 3158, that the penalty prescribed therein for a railroad company's failure to furnish certain facilities shall be paid to the good roads fund instead of to the county public school fund as required by Const. art. 11, § 8, invalidates the entire penalty provision; it being apparent from the language of the statute, considered in the light of its development from prior acts, that the imposition of the penalty and its payment to the county roads fund constituted a single legislative purpose, and that the Legislature was induced to enact the penalty provision through having in mind the payment of the penalty to the fund designated.

Brown, J., dissenting.

In Banc. Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by the State against the St. Louis, Iron Mountain & Southern Railway Company. From judgment for plaintiff, defendant appeals. Reversed.

This is a suit by the state to recover $10 per day for the alleged violation by defendant of the provisions of section 3158 of the Revised Statutes of 1909, for a period of 110 days. The answer was a general denial, and that said statute was unconstitutional as a whole, and particularly as to its concluding paragraph, which is set forth in bold type in the following quotation of the statute.

"Sec. 3158. To deliver and receive freight at crossing of other roads—To maintain switches—Penalty for failure.—Every railroad corporation organized or doing business under the laws of this state, or authority thereof, shall receive and deliver all grain and other freight consigned to its care for transportation at the crossings and junctions of other railroads, canals and navigable rivers; and shall, at all cities and towns along the line of their railroad having a population of two hundred inhabitants or more, construct and maintain switches and freight houses for the receipt and delivery of grain and other freight that may be tendered such railroad corporation for transportation; and shall stop at least one train daily thereat to receive and unload freight. And whenever in the opinion of the railroad and warehouse commissioners the amount of business is sufficient to justify the same, such railroad corporation shall retain a freight agent for the purpose of receiving and delivery of grain and other freight. Any railroad corporation failing or refusing to comply with the provisions of this section after thirty days' notice given shall forfeit and pay to the good roads fund of this state the sum of ten dollars for each day they shall so fail or refuse to comply with the provisions of this section to be recovered in any court of competent jurisdiction by civil action brought in the name of the state by the prosecuting attorney in the county wherein such failure or refusal occurs. R. S. 1899, § 1118, amended Laws, 1905, p. 113.

The last paragraph of this statute was enacted in 1905 (Sessions Acts, p. 113). The preceding portions were enacted respectively in 1872 (Session Acts, pp. 73-4) and in 1881 (Session Acts, pp. 77-8). When first enacted it provided first, for a private suit by an injured party for damages caused by disobedience to its commands, and secondly, for a second violation of its provisions, a public fine of $1,000 was imposed; third, for repeated violations of the statute, it authorized proceedings for a receivership. These penalties continued for a few years, when they were repealed (1881), and in lieu of them the Legislature gave the owners of the freight a right to sue for damages occasioned by violations of the act as then amended. The act continued in that state until finally amended (1905), when the shipper's right of action was taken away, and in lieu thereof the italicized portion of above act was added.

On the trial there was evidence tending to prove the charges made in the petition that defendant had not complied with the provisions of the statute under conditions calling for its application, for the period mentioned, and plaintiff recovered judgment for $1,100, from which defendant duly appealed.

N. A. Mozley, of Bloomfield, and R. T. Railey, of St. Louis, for appellant. John T. Barker and Elliott W. Major, Attys. Gen., and Wm. M. Fitch and Charles G. Revelle, Asst. Attys. Gen., for the State.

BOND, J. (after stating the facts as above).

I. In considering this case, we shall confine our view to the claim that the penalty clause of the statute supra is void under the provisions of the Constitution giving the proceeds of fines to the school fund of the respective counties, since that question goes to the root of the right to recover in this action, which is only a suit for the penalty provided by the statute.

The power of the General Assembly to enact laws is subject, in all matters, to the limitations of the Constitution of this state, whether they be expressed by prohibitory clauses, or by affirmative provisions relating to the matter in hand. Both methods of restriction are equally binding on the lawmaking power, and no valid law can be enacted by it which contravenes either. Redmond v. Railroad, 225 Mo. loc. cit. 731, 126 S. W. 159.

In this case the constitutional restraint upon the Legislature is in the form of an affirmative provision of the organic law that: "The clear proceeds of all penalties and forfeitures shall belong to the county public school fund." Const. Mo. art. 11, § 8. Unquestionably the attempted diversion on any such penalties or forfeitures by the Legislature would nullify the act, if it was passed for that sole purpose; for the Constitution having spoken as to the proper receptacle of such funds, the power of the Legislature to speak in a contrary way is stilled and ceases to exist until the constitutional provision shall be amended or abrogated. It is evident that so much of the penalty clause of the act under review as purports to create a penalty payable to the good roads fund is void.

But does this conclusion invalidate the penalty clause so that a different beneficiary to the one specifically designated by the Legislature may not claim thereunder, upon the theory that it was the intention of the Legislature to create a penalty in favor of such other beneficiary, though not mentioned in the act? The test in such case is whether, considering the words and objects of the law or section thereof containing the unconstitutional provision, we would be warranted in holding that it would have been enacted in the changed form, if the unconstitutionality of its present state was known at the time.

In the present case, the penalty clause under review is void on its face, in so far as it purports to create a penalty or forfeiture payable to the good roads fund. With that in mind, we have searched the language of the penalty clause added by the amendment of 1905, and we fail to discover any basis in its terms or purposes which could support a legal intendment that it was enacted for any other object than the creation of a debt enforceable on behalf of the good roads fund. That purpose is explicitly stated in the Session Acts of 1905, p. 113, and no other purpose is indicated by any of the language employed in said amendment than the single and indivisible one of creating a specific debt for the benefit of the good roads fund, which the amendment sought to accomplish by striking out the provision which the former act contained, affording a right of private action to the shipper of goods, and substituting therefor a specific and fixed sum to be "forfeited and paid" to the good roads fund, and recoverable by a civil action. It will be observed that the session act does not say that the disobedient carrier shall pay a fine, and thereafter provide such fine shall inure to the good roads fund, nor does it contain a word from which a rational inference can be drawn that it was the legislative motive first to create a fine, and then to indicate its recipient. Had that form of phraseology been used, some ground might exist for the contention that the act was primarily designed to create a penalty or forfeiture, and secondarily, to give the benefit of it to the good roads fund, in which event we would sustain so much of it as fixed the penalty. This was ruled in State v. Bockstruck, 136 Mo. loc. cit. 340, 359, 38 S. W. 317, where section 7, then held in judgment, prescribed a fine, and section 11 later provided a disposition of it into the state treasury, and where the latter section was held to be void without affecting the validity of the former. To the same effect was the ruling made in State v. Newell, 140 Mo. 282, 41 S. W. 751. But there is no such divisibility in the language before us, which is direct and preclusive, to wit: "Shall forfeit and pay to the good roads fund of this state" the sum of $10 for each day of noncompliance. These words simply create a specific fund for a single purpose in a single section or paragraph which cannot be separated without affecting the sense, meaning, and object had in mind by the Legislature when they were selected. As they stand, they do not imply that the fund thus created was intended primarily...