State v. Warner

• Decision Date: 20 June 1906
• Citation: 197 Mo. 650,94 S.W. 962
• Parties: STATE ex rel. RODES, Game and Fish Warden, v. WARNER, County Treasurer.
• Court: Missouri Supreme Court

94 S.W. 962

197 Mo. 650

STATE ex rel. RODES, Game and Fish Warden, v. WARNER, County Treasurer.

Supreme Court of Missouri.

June 20, 1906.

GAME—STATUTORY PROVISIONS.

Laws 1905, p. 158, relating to the preservation of game, and creating a number of offenses defined as misdemeanors and made punishable on prosecutions under the supervision of prosecuting attorneys, and requiring the fines collected to be paid into the state treasury for the benefit of the game and protection fund, is, in so far as concerns such disposition of fines, violative of Const. art. 11, § 8, providing that all the clear proceeds of penalties and forfeitures and fines collected in counties for any breach of the penal laws shall belong to the several counties as a county public school fund.

In Banc. Mandamus by the state, on relation of J. H. Rodes, as game and fish warden, to compel A. C. Warner, as county treasurer of Jackson county, to turn over certain moneys to the State Treasurer to be credited to the game protection fund. Peremptory writ denied.

Barnett & Barnett, for relator. John A. Sea, for respondent.

LAMM, J.

In 1905, the General Assembly of the state of Missouri passed an act (Laws 1905, p. 158) 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," in 71 sections. By section 38 (page 165) it is provided the Governor shall "appoint some person skilled in matters relating to birds, game and fish, a resident of the state, game and fish warden." And this official is put under bond and given large powers and multiplied duties. Thereafter the Governor selected relator as "skilled in matters relating to birds, game and fish," and duly appointed and commissioned him to the office of game and fish warden; he qualifying as such, taking upon himself the burden of said duties and powers. By section 66 (page 170) it is provided that: "Moneys collected from fines, penalties or forfeitures, under this act, belonging to the game protection fund, shall be paid over by the officer authorized to collect said money to the State Treasurer on or before the first day of each month." By section 64, it is enacted that: "All moneys sent to the State Treasurer in payment of * * * fines, penalties, forfeitures, shall be set aside by the State Treasurer and shall constitute a fund, known as the `Game Protection Fund,' for the payment of the salary of the state game and fish warden, his necessary expenses, also for the payment of deputy game and fish wardens and their necessary expenses." By other sections, the game and fish warden is authorized to appoint deputies for each congressional district, and, furthermore, by section 53 (page 168): "All sheriffs, deputy sheriffs, marshals, constables or other peace officers, are declared to be ex officio game and fish wardens." The act bristles with impaling provisions, the violation of which are denounced, seriatim, as misdemeanors, to be punished as criminal offenses by fines (and by imprisonment, in case the fines are not paid), ranging from $5 to $1,000, and the scheme is that all these fines should be paid to the State Treasurer to swell the corpus of the "game protection fund," out of which fund comes the expenses of enforcing the law.

At a certain time, one Weber was convicted before a justice of the peace in Jackson county of a misdemeanor for violating one of the provisions of said act, and was mulct in a fine of $50, which he paid. This fine was turned over to respondent, Warner, as county treasurer of Jackson county, who credited the same to the school fund of that county. Whereat relator brought this original proceeding to compel, by the moving writ of mandamus, said county treasurer to turn over said fine to the State Treasurer to be by him credited to the game protection fund. An alternative writ issued, directed to respondent, requiring him to pay over said $50 to the State Treasurer for the use of said fund, or show cause why he has not so done. To this alternative writ, respondent made return interposing divers grounds as "cause" for not obeying our writ. The only cause deemed of consequence is that whereby the constitutionality of those provisions of the act requiring such fines to be converted into the state treasury and into said fund is challenged. It is insisted said provisions violate section 8, art. 11, of our Constitution, reading thus: "All * * * 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." On the coming in of this return, relator demurred thereto. Thereby the question submitted becomes one of law, and the issue will be treated as single and sharply defined as pointed out. Does the statutory disposition of these fines impinge upon the state Constitution? That is the question here, and in our opinion, that question must be answered in the affirmative. It is with judicial reluctance we are constrained to this notion, for the law is a wholesome one. The mischiefs struck at and to be retarded are manifest, the benefits in view and to be advanced, many and salient, and, in so far as this holding tends to emasculate the law and defeat its purposes (if so it results) by reducing somewhat the fund for its enforcement, it becomes a matter of pronounced solicitude and gravity. Before any provision of a statute may be declared unconstitutional, the courts should allow full play to all wise rules and maxims of construction and interpretation, inter alia, that its unconstitutionality should be so palpable and obvious as to leave no room for reasonable doubt in the court's mind. State v. Layton, 160 Mo., loc. cit. 499, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. Rep. 487. Another unbending rule is that a state Legislature, in contrast to the federal Congress, has all legislative power not prohibited to it by the state or federal Constitution. State ex rel. v. Sheppard (Mo. Sup.) 91 S. W. 477, not yet officially reported; Cass County v. Jack, 49 Mo., loc. cit. 199. But considering, as we are bound to consider, the constitutional provision, supra, as imperious, as written by plain men in plain language for a plain and high purpose, and approaching, as our duty is, the legislation in question without judicial austerity or over-refinement of interpretation, we have been able to arrive at no other conclusion than that fines arising from punishment of violators of the act in question, like all other fines arising from punishments inflicted by the criminal law, are devoted to a constitutional purpose, of inflexible stiffness, to wit, the education of the little ones, the children, of Missouri. And this is so, because:

1. In the first place, it is argued by the learned counsel of relator that penal laws may be enforced for the benefit of individuals; that public policy, as chrystallized in the law, permits qui tam actions; and further, that, when the gist and scope of the legislation in hand is considered, it is apparent it was passed for a specific purpose, to wit, the protection of game, and to create a specific fund, to wit, the game protection fund—ergo, relator says, in effect, it may stand on the theory that legalizes a qui tam action, or that legalizes the collection of a penalty for the benefit of a private person, or for a local object. On this insistence, we are referred to Barnett v. Railroad, 68 Mo. 56, 30 Am. Rep. 773, where a penal statute was under consideration giving to a stock owner double damages for killing stock, when a railroad remained unfenced contrary to law, and in which case the point was made that the statutory penalty under the Constitution could not go to the stock owner, but inured to the benefit of the school fund, and hence the statute was void. In that case the law was held constitutional, and the penalty of double damages, it was held, might go to the stock owner. In considering the constitutional provision now in hand, Hough, J., speaking for this court, said: "This section clearly refers to penalties accruing to the public, and not to penalties recovered by private persons for their own use." 68 Mo., loc. cit. 64, 30 Am. Rep. 773. In Kaes v. Railroad, 6 Mo. App., loc. cit. 405, the same constitutional provision was interposed as a defense in an action under the statute for double damages for killing stock, and Lewis, P. J., said for that court: "The constitutional provision * * * whereby the clear proceeds of penalties and forfeitures (are directed to go into the public school fund) evidently applies only to penalties and forfeitures actually collected by the public county authorities." Scott v. Railroad, 38 Mo. App. 523, is relied upon by relator. That was an action for damages, and a penalty for failure to cause all the dead or dry vegetation and undergrowth to be removed off defendant's railroad right of way or burned twice in each year, to prevent the spread of fire and the destruction of property. In that case, it was contended plaintiff was not entitled to the penalty because of the constitutional provision now under consideration, and it was held that the law giving him the penalty was constitutional.

In further illumination of the matter, the language of Justice Gray, in Huntington v Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, is in point, as showing the intrinsic differences existing in penal laws and the distinction to be observed. That was a case where, by a bill in equity lodged in a Maryland court, it was sought to enforce the payment of a judgment recovered by plaintiff in the state...