Town of Flora v. American Express Company

• Decision Date: 21 October 1907
• Citation: 92 Miss. 66,45 So. 149
• Court: Mississippi Supreme Court
• Parties: TOWN OF FLORA v. AMERICAN EXPRESS COMPANY

45 So. 149

92 Miss. 66

TOWN OF FLORA v. AMERICAN EXPRESS COMPANY

Supreme Court of Mississippi

October 21, 1907

October 1907

FROM the circuit court of Madison county, HON. DAVID M. MILLER Judge.

The town of Flora, in Madison county, the appellant., was the plaintiff in the court below, and the American Express Company, appellee, defendant there. From a judgment in defendant's favor, plaintiff appealed to the supreme court.

Plaintiff's declaration was based on Code 1892, § 1590, and was for the recovery of the penalty of $ 500, provided by the statute, for the unlawful sale of intoxicating liquors within the limits of the municipality. The statute is quoted in full in the the opinion of the court. Before trial the declaration was amended so as to charge six distinct alleged sales of intoxicating liquors within the town limits, and demand $ 500 for each alleged offense, a total of $ 3,000. The defendant moved for an order of court limiting the possible recovery to one penalty of $ 500, and the court at first overruled the motion, but subsequently held that plaintiff would be entitled under the pleadings to recover, if at all, only one penalty of $ 500. After the plaintiff had introduced its evidence, the court, on motion of the defendant, excluded the same and directed a verdict for defendant. The opinion of the court further states the facts.

Judgment affirmed.

J. B Chrisman, for appellant.

The court below erred in holding that only one penalty could be recovered for each violation of the law charged and proved up to the date of filing of the declaration. Code 1899, § 1590.

W. H. Powell, Huber & Powell, for appellee.

The assignment of error chiefly relied upon by appellant to secure reversal of judgment is that the trial court limited possible recovery to one penalty. The appellee was sued for a penalty, not for a debt. Clark v. Adams, 80 Miss. 228; McBride v. State, 70 Miss. 716. The penalty is not cumulative, as will be seen by the language of the statute. Code 1892, § 1590, does not allow a penalty after each sale unless a separate suit is at once brought after each sale, and before another has been made. There may be a thousand separate sales, and if suit is not brought until after they are made, only one penalty of $ 500 is recoverable for all of them made before the filing of the declaration.

The word, "each," in the code section refers to the city and county and state, and not to the sale or sales.

"Where the offense is continuous and the penalty is fixed at so much for each day, week or other period of time, or where a prohibited act embraces several particulars, with a penalty for each, only one count for the aggregate sum is necessary." 16 Encyc. Pl. & Pr., 282; 18 Am. & Eng. Encyc. Law (1st ed.), 278; Parks v. Nashville, etc. R. R. Co., 13 Lea (Tenn.), 1.

The interpretation of statutes imposing a penalty for doing prohibited acts is governed by the rules applicable to the interpretation of statutes generally, and also by the further rule that they shall be strictly construed when their penal provisions are invoked against one charged with their violation. 18 Am. & Eng. Encyc. Law (1st ed.), 270; State v. Railroad Co., 18 L. R. A., 507; Railroad Co. v. Spencer, 72 Miss. 491, 17 So. 168; Railroad Co. v. Ligon, 74 Miss. 179, 20 So. 988; Railway Co. v. Murrell, 78 Miss. 448, 28 So. 824.

No suit has heretofore been brought, under such statutes, save for one penalty. Clark v. Adams, Rev. Agt., 80 Miss. 219; State v. Johnson, 72 Miss. 896, 17 So. 82.

The action of the lower court in directing a verdict and judgment in appellee's favor because of lack of evidence, was correct.

[Counsel discussed the constitutionality of the statute, but the court did not pass thereon, and therefore a synopsis of that part of the briefs is not given.]

OPINION

WHITFIELD, C. J.

This action was brought by the town of Flora against the appellee express company to recover the penalty provided by Annotated Code 1892, § 1590, which reads as follows "Persons selling or giving liquors away to pay tax.--Any person who may sell or give...