State v. Wabash, St. L. & P. Ry. Co.

• Decision Date: 07 June 1886
• Citation: 1 S.W. 130,89 Mo. 562
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CLAY CO. v. WABASH, ST. L. & P. RY. CO.

1 S.W. 130

89 Mo. 562

STATE ex rel. CLAY CO. v. WABASH, ST. L. & P. RY. CO.

Supreme Court of Missouri.

June 7, 1886.

1. FINES — STATUTE ALLOWING PART TO GO TO INFORMER.

It is competent for the legislature, by way of an inducement to secure prompt enforcement of the penal laws, to allow a part of each penalty recovered to go to the informer.

2. SAME — STATUTE VALID.

Such a statute does not violate that provision of the constitution which requires the "clear proceeds" of fines and penalties to be paid into the school fund. Const. Mo. art. 11, § 8.

3. SAME — INFORMATIONS.

Under the statutes of Missouri (section 1674, Revision 1879) an information, showing upon its face how and to whom the penalty sued for is to go, is sufficient, whether the action is in the name of the state, or of the county beneficially interested; the real intention of that section being merely to designate the officer whose duty it is to prosecute, rather than to point out the nominal plaintiff.

Appeal from Clay circuit court.

Action in the name of the state, for the benefit of a county, to recover from a railway company the statutory penalty for neglect to "ring" or "whistle" at a highway crossing. Judgment for plaintiff, and defendant appeals.

H. F. Simrall, for the State. W. H. Blodgett, for appellant, Wabash, St. L. & P. Ry. Co.

RAY, J.

This was an action instituted and conducted by the prosecuting attorney of Clay county, Missouri, in the name of the state of Missouri, to the use of Clay county, Missouri, and upon the information of one Broadwell, to recover the penalty prescribed by section 806, and the amendments thereto, for a failure on the part of the appellant to ring a bell or sound a whistle at a certain public crossing on the railroad of appellant, in Clay county, Missouri. The proceeding was commenced before a justice of the peace, in Clay county, Missouri, where plaintiff had judgment, from which defendant appealed to the circuit court of said county, where plaintiff again had judgment, from which the defendant appealed to this court.

The "information" or complaint filed before the justice, as a basis of the prosecution, was duly signed by the said prosecuting attorney of Clay county, Missouri, in his official capacity, and was entitled as follows: "The State of Missouri, to the Use of Clay County, Plaintiff, against Wabash, St. Louis & Pacific Railway Company, Defendant." It then commenced as follows "The said plaintiff, upon the information of Henry Broadwell, a resident and citizen of Clay county, Missouri, complains of said defendant, the Wabash, St. Louis & Pacific Railway Company, and states the following cause of action, to-wit;" and then, after stating the facts and averments necessary to show the defendant's liability, under said section 806, Revision 1879, it concludes as follows: "Whereby a cause of action has accrued to plaintiff to have and demand of and from defendant, as a penalty for the neglect of the provisions of the said section, the sum of twenty dollars, one-half to be paid to said Clay county, and one-half to said informer, Henry Broadwell, and for which plaintiff asks judgment."

At the trial in the circuit court the defendant resisted a recovery upon the following grounds only: (1) The action was not instituted in the name of the proper party; (2) that section 806 is in violation of section 8 of article 11 of the constitution of Missouri, wherein it provides that one-half of the penalty should go to the informer, whereas the constitution provides that the whole penalty should go to the school fund. The court below found against the defendant on both points, holding that the suit was properly brought, and that the statute in question was constitutional.

Under the instructions of the court the jury found a verdict in favor of the plaintiff for the amount sued for. No objection is taken to the instructions, or to the admission or exclusion of evidence, and the only points raised in this court, as in the court below, are (1) that "the penalty is not sued for by the prosecuting attorney, to the use of Clay county and the informer, as required by the statute;" (2) that "section 806 is in violation of section 8 of article 11 of the constitution of Missouri."

The material parts of section 8 of article 11 of the constitution are as follows: "All moneys, stocks, bonds, * * * the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties, for any breach of the penal or military laws of the state, * * * shall belong to, and be securely invested and sacredly preserved in, the several counties, as a county public school fund, the income of which fund shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this state."

Section 806 of the statutes, (Revision 1879,) which is the...