The State v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 24 December 1913 |
| Parties | THE STATE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Iron Circuit Court. -- Hon. E. M. Dearing, Judge.
Reversed.
Robert T. Railey and N. A. Mozley for appellant.
(1) The penalty clause of Sec. 3158, R.S. 1909, is invalid, and there being no other provision of law attempting to inflict a penalty for the alleged violation of said section, the present action must fail, as only a penalty is sought to be recovered herein. The Legislature is not bound to provide a penalty in cases of this character, but if it does attempt to do so, it must appear upon its face that said penalty is for the benefit of the school fund, or the matter will stand as though no penalty had been imposed. There is no provision of law in our Constitution, or in our statutes, which authorizes either the jury, the trial court or the appellate tribunal to exercise a legislative function by striking out plain legislative language from a section and substituting in a highly penal statute language which the Legislature did not use or intend to use. Butts v. Merchants' & Miners' Tr. Co., 33 U.S. S.Ct. 966; Railroad v Guitierrez, 215 U.S. 87; Railroad v. McKendree, 203 U.S. 514; U. S. v. Ju Toy, 198 U.S. 253; James v. Bowman, 190 U.S. 127; Baldwin v Franks, 120 U.S. 678; Poindexter v. Greenhow, 114 U.S. 80; Trademark Cases, 100 U.S. 82; United States v. Harris, 106 U.S. 629; Allen v. Louisiana, 103 U.S. 80; Trademark Cases, 100 U.S. 82; United States v. Reese, 92 U.S. 214; Karem v. United States, 121 F. 250; State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282; State ex rel. v Warner, 197 Mo. 650; State ex rel. v. Nast, 209 Mo. 708; Cooley on Constitutional Limitations (6 Ed.), 209. (2) Section 3158 was first passed in 1905 (Laws 1905, p. 113), and it neither directly nor inferentially indicates any intention upon the part of our Legislature to penalize the railroads of the State for the benefit of the school fund, or to inflict any penalty at all, unless such penalty should go to the good roads fund. This conclusion is not unreasonable, because the Legislature in all of its former legislation upon the subject in 1872 and 1881 had never penalized the roads at all. Appellant, therefore, insists that, in construing a highly penal section like section 3158, words should not be stricken therefrom and new language, never used nor intended to be used by the Legislature, inserted therein. If the section as enacted by the Legislature is invalid, then the entire penal portion of the section should be declared unconstitutional and void. Butts v. M. & M. Ir. Co., 33 U.S. S.Ct. 964; Railroad v. Gutierrez, 215 U.S. 97; Railroad v. McKendree, 203 U.S. 514; Civil Rights Case, 109 U.S. 3; Allen v. Louisiana, 103 U.S. 80; Warren v. Mayor, 2 Gray (Mass.), 84; United States v. Reese, 92 U.S. 215. (3) The elementary rule of law in this State is to the effect that in construing penal statutes, like the one at bar, they are to be strictly construed as against the State and liberally construed in favor of the defendant. State ex rel. v. Railroad, 238 Mo. 612; State ex rel. v. Bland, 144 Mo. 534; State ex rel. v. Smith, 114 Mo. 180; State v. McCance, 110 Mo. 398; Connell v. Tel. Co., 108 Mo. 49; Rozelle v. Harmon, 103 Mo. 339; State v. Bryant, 90 Mo. 537; Manz v. Railroad, 87 Mo. 278; State to use v. Railroad, 83 Mo. 144; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Wilson, 19 Mo. 327; Riddick v. Governor, 1 Mo. 147; State ex rel. v. Railroad, 105 Mo.App. 211. (4) The court, by judicial legislation, has no right arbitrarily to strike from said section the language used by the Legislature, in which it is said that for a violation of the section "the railway company 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 any part thereof. In other words, the language above quoted, having been used by the Legislature in the amendment of 1905, cannot be changed so as to read into said section a civil right of action for the benefit of the school fund, when there is nothing in any portion of the section which would warrant such a construction. State v. Bockstruck, 136 Mo. 335; Cooley on Const. Lim. (6 Ed.), 209.
Gardiner Lathrop, T. R. Morrow, W. F. Evans, Sam H. West, F. C. Dillard, Joseph M. Bryson, J. L. Minnis, S.W. Moore, Scarritt & Scarritt and O. M. Spencer for amici curiae.
John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
(1) Appellant is in error when it contends that where a portion of a statute is unconstitutional the whole statute must fall. 1 Lewis's Sutherland's Statutory Construction, sec. 296; State v. Newell, 140 Mo. 287. If we eliminate the words "the good roads fund of" from the penalty clause of said section 3158, then we have left a full and complete enactment. It covers every intention of the Legislature. It is left then in the same condition in which practically every statute of criminal law which provides a penalty is in. In fact, the great body of criminal law, as administered under the Constitution of this State, is silent as to where the particular fine, forfeiture or penalty shall go. By adding those words no force or strength is added to the statute. Such words, if added, must be in harmony with the Constitution. If not in harmony with the Constitution, such words will be ignored, or treated as surplusage, and the law will stand as though such words had been omitted. Every presumption is indulged in favor of the validity of the act. State v. Douglass, 50 Mo. 597; State v. Thompson, 144 Mo. 314; State ex rel. v. Aloe, 152 Mo. 477; In re Bledsoe Hill, 200 Mo. 646; State ex rel. v. McIntosh, 205 Mo. 602. (2) The forfeiture clause of Sec. 3158, R.S. 1909, is constitutional and valid and should be enforced in this case. Railroad v. State, 79 Tex. 264; State ex rel. v. Railroad, 83 Mo. 144; State ex rel. v. Railroad, 32 F. 722; Railroad v. Com., 85 Kan. 229. (3) Appellant contends that by reason of the fact that the statute provides that ultimate beneficiary of the forfeiture, which is declared by the act, shall go "to the good roads fund" instead of to the public school fund as named in the Constitution, the whole act, so far as the imposition and the collection of the forfeiture are concerned, is void. This by no means follows as a logical sequence. The Legislature in the amendment of 1905 had three separate and distinct objects in view: (a) The imposition of a duty upon railroad companies toward cities of the class named in the section; (b) the imposition of a penalty for failure to discharge the imposed duty, and (c) the method for collecting and enforcing that penalty. To these may be added a fourth provision which the Legislature incidentally provided by saying that the money should go to the good roads fund instead of giving it to the public school fund. By admitting that the fourth provision is unconstitutional and invalid and cannot be enforced for the benefit of the good roads fund, we do not destroy the other three main objects sought to be accomplished by this section. Railroad v. State, 55 Ark. 200; Harrod v. Latham, 77 Kan. 466. When we admit that the statute imposes a duty -- that that duty has been violated by the railway company -- and the statute prescribes a remedy for collecting the forfeiture given by the statute for such violation, we cannot relieve the railroad company from all liability in the case simply because the ultimate beneficiary of this fund is given by the statute to a place contrary to the constitutional provisions. This is especially true when the suit is not brought individually by such beneficiary. In good conscience the railroad company should not be permitted to willfully and flagrantly violate the plain mandatory terms of the statute and then come into this court and excuse itself by reason of the fact that the money which it owes the public is not correctly disposed of by the statute. The debt is due the public by reason of the railroad company's failing and refusing to comply with the requirements of law. Then why should the public be deprived of this money, and why should be railroad company be excused from all liability for its violations? As said in the Kansas case: The doctrine of these cases has been recognized by this court in the case of State v. Newell, 140 Mo. 288.
OPINION
BOND
In Banc.
STATEMENT.
This is a suit by the State to recover ten dollars 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 italic type in the following quotation of the statute.
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