The State ex rel. Jones v. Howe Scale Company of Illinois

• Decision Date: 04 March 1919
• Citation: 210 S.W. 8,277 Mo. 213
• Parties: THE STATE ex rel. SEEBERT G. JONES, Circuit Attorney, v. HOWE SCALE COMPANY OF ILLINOIS, Appellant
• Court: Missouri Supreme Court

210 S.W. 8

277 Mo. 213

THE STATE ex rel. SEEBERT G. JONES, Circuit Attorney, v. HOWE SCALE COMPANY OF ILLINOIS, Appellant

Supreme Court of Missouri, Second Division

March 4, 1919

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillan Judge.

Transferred to St. Louis Court of Appeals.

B. A Wood and Anderson, Gilbert & Hayden for appellant.

(1) Where a statute is unconstitutional, an execution on a fine assessed under it will be quashed, although the judgment had previously been affirmed on appeal. State v. Finley, 187 Mo.App. 72; Same Case, 259 Mo. 414; Same Case, 162 Mo.App. 134; Same Case, 234 Mo. 603; Exp. Smith, 135 Mo. 229. Jurisdiction comes from Constitution and laws and not from mistaken interpretation, and a judgment entered under an unconstitutional statute is void. Finley v. United Railways Co., 238 Mo. 19. (2) The judgment is void because there is no law imposing a fine for violation of Section 1025, as approved March 24, 1903. Old Section 1025 was repealed and this repeal carried with it the penalty section following. Where a section is repealed, for whose violation a penalty is provided, the penalty does not attach to a new section covering the same matter. Com. v Kelleher, 12 Allen (Mass.) 481; State v. Gaunt, 13 Ore. 118; State v. Ashley, Dudley (Ga.), 188; Neil v. Dillon, 3 Mo. 59. (3) If the execution be not quashed, defendant will be deprived of its property without due process of law in violation of Amendment 14 of the Constitution of the United States. There is no law in force providing a fine for the act passed in 1903, and hence a judgment so imposing is void. Where a judgment shows on its face no judgment could lawfully be entered, no execution can be entered thereunder. Holzhorn v. Meer, 59 Mo. 434. (4) There is no law in this State which provides that a fine draw interest. The execution directs the sheriff to collect interest, and unless quashed, will deprive defendant of its property in violation of Amendment 14 to the United States Constitution.

Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for respondent.

(1) Although no motion has been made by respondent, this court will, of its own motion, inquire whether it has jurisdiction. Electric Service Co. v. Mfg. Co., 125 Mo. 140; State v. Finley, 259 Mo. 421. It is hardly necessary to cite authorities to the proposition that, "It must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest possible moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived." Barber Asphalt Co. v. Ridge, 169 Mo. 387. See also Lohmeyer v. Cordage Co., 214 Mo. 691; State v. Gamma, 215 Mo. 104; Hartzler v. Railroad, 218 Mo. 564; Dudley v. Railroad, 238 Mo. 187; Ross v. Grand Pants Co., 241 Mo. 299; Howell v. Sherwood, 242 Mo. 540. And it would seem that if the constitutional question must be raised as soon as it properly can be and in the trial which results in the judgment, then it cannot be raised in a supplementary proceeding which is taken for the purpose of realizing on said judgment. State v. Finley, 259 Mo. 414. That no constitutional question was raised by the record of the trial court has been determined by this court in this identical case when it was here on a former occasion and was then certified to the St. Louis Court of Appeals. State ex rel. v. Howe Scale Co., 253 Mo. 63. (2) Appellant also says that the effect of the Act of March 24, 1903, repealing Sec. 1025, R. S. 1899, and at the same time enacting Section 1025 in lieu thereof, was to also repeal Section 1026 which, among other things, imposed the penalty; and that therefore the "due process of law" provision of the constitution is violated if this judgment is enforced. It is only necessary to say that this question was raised for the first time by appellant's motion to quash the execution.

WILLIAMS, P. J. Walker, J., not sitting.

OPINION

WILLIAMS, P. J.

This is an appeal from an order of the Circuit Court of the City of St. Louis, overruling defendant's motion to quash an execution issued out of said court to collect a judgment which had theretofore been rendered against defendant in the sum of $ 1000.

The original suit which resulted in the above mentioned judgment was instituted by the State of Missouri at the relation of the Circuit Attorney of the City of St. Louis and sought to recover from the defendant a penalty in the sum of $ 1000 under Section 3040, Revised Statutes 1909, for a violation by said foreign corporation of the provision of Section 3039, Revised Statutes 1909.

Defendant filed a demurrer to the petition, which was overruled, and upon defendant's refusal to plead further judgment was rendered against it for the above sum.

On the theory that a constitutional question was involved an appeal was granted defendant to this court. This court held that a constitutional question was not involved and certified the case to the St. Louis Court of Appeals. [See 253 Mo. 63.] Thereafter the Court of Appeals affirmed the judgment. [See 182 Mo.App. 658.]

After the mandate from the Court of Appeals reached the circuit court an execution was issued upon the judgment. Thereafter defendant filed a motion to quash the execution, which motion is as follows:

"Now comes defendant, The Howe Scale Company of Illinois, by its attorney, and respectfully shows:

"That on July 10, 1914, there was issued out of the circuit court City of St. Louis, in cause No. 59475A, execution No. 129 to the October Term, 1914, commanding the sheriff of said city to cause to be made of the goods, chattels and property of defendants a certain judgment rendered in said cause on February 7, 1910, for $ 1000 and costs, and that the said sheriff threatens to levy on the property of defendant;

"That said execution should be set aside, stayed and quashed for the following reasons, to-wit:

"1. Because the judgment under which said execution is issued is void;

"2. Because the court had no jurisdiction to assess a fine or to enter said judgment;

"3. Because Section 1025, Revised Statutes 1899, enacted in 1903, under which said judgment purports to be entered, does not provide that the penalty defined in Section 1026, Revised Statutes 1899, shall be applicable;

"4. Because there is no law authorizing the imposition of a fine for a failure to observe the provisions of Section 1025, as enacted in 1903;

"5. Because Section 1026, Revised Statutes 1899, is unconstitutional and void, because in violation of Section 28 of Article IV of the Constitution of Missouri, as the act in which said section was passed contains more than one subject, expresses in its title the subject of each other section, and does not express in its title the subject of said section known as Section 1026;

"6. Because the said execution and judgment violate Section 25 of Article IV of the Constitution of Missouri;

"7. Because said execution and judgment violate Section 34 of Article IV of the Constitution of Missouri;

"8. Because said judgment and execution violate Section 4 of the Act of Admission to the Union;

"9. Because said judgment and execution violate the Constitution of the United States and Amendment XIV thereof, and if said execution is not quashed defendant will be deprived of its property without due process of law;

"10. Because said judgment and execution violate the Constitution of the United States and Amendment XIV thereof and deny to defendant the equal protection of the laws;

"11. Because said judgment does not follow the petition in said cause, or the prayer thereof, and is not supported by the allegations of said petition;

"12. Because there is no finding of fact upon which any judgment can be entered;

"13. Because there is no inquiry, but judgment was entered on motion of relator, and the court had no jurisdiction to enter a final judgment on motion of relator;

"14. Because said judgment is so vague and uncertain that it cannot be determined what is decided or adjudged therein;

"15. Because said execution recites that State of Missouri at the relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, is plaintiff; that said Seebert G. Jones is not now and has not been since the first Monday in January, 1913, Circuit Attorney of the City of St. Louis; that Hon. Thomas B. Harvey is now and has been since said date Circuit Attorney of said city:

"16. Because said execution is void;

"17. Because said execution is so vague and uncertain that it cannot be determined in whose favor it is issued;

"18. Because said execution does not follow the judgment, under which it purports to be issued;

"19. Because said execution violates the Constitution of the State of Missouri and Section 8 of Article XI thereof and directs the said sheriff to cause said judgment to be made for other than the School Fund of the City of St. Louis; the City of...