Washington Tp. Road Dist. No. I v. Robbins

• Citation: 262 S.W. 46
• Decision Date: 13 May 1924
• Docket Number: 23850
• Parties: WASHINGTON TP. ROAD DIST. NO. I v. ROBBINS
• Court: United States State Supreme Court of Missouri

262 S.W. 46

WASHINGTON TP. ROAD DIST. NO. I v. ROBBINS

No. 23850

Supreme Court of Missouri

May 13, 1924

R. E Kavanaugh and H. E. Thompson, both of Trenton, for appellant.

Leslie P. Robinson and O. G. Bain, both of Trenton, for respondent.

In Banc.

OPINION

SMALL C.

I.

Appeal from the circuit court of Grundy county.

Suit by Washington township road district No. 1 of said county to recover a penalty of $ 5 a day from the ___ day of May, 1920 from the defendant for permitting certain posts to obstruct a public road. The petition was based on section 10720, R. S. Mo. 1919.

The defendant in his answer, among other things, alleged that the statute was unconstitutional in so far as it authorized a recovery in such cases in a suit brought by the road overseer in the name of the road district, because it was in conflict with the Constitution of the state, section 8, article 11, which provides that --

'The clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of the penal * * * laws of the state * * * shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund.'

At the hearing, before any testimony was introduced, the defendant objected to the introduction of any evidence, because said statute violated said provisions of the Constitution. At the close of the evidence, defendant asked a peremptory instruction, which was refused. The jury rendered a verdict for the plaintiff for $ 1,705, on which judgment was rendered. The court sustained a motion for new trial made by defendant, because said peremptory instruction should have been given 'for the reason that said section 10720, Revised Statutes, under which these proceedings were brought, is unconstitutional.' From this order of the court, the plaintiff duly brought the case here by appeal.

II. The only question we have to deal with is the constitutionality of said section 10720, R. S. Mo. 1919, which is as follows:

'All driveways or crossings over ditches connecting highways with the private property shall be made under the supervision of the overseer or commissioners of the road districts. Any person or persons who shall willfully or knowingly obstruct or damage any public road by obstructing the side or cross drainage or ditches thereof, or by turning water upon such road or right of way, or by throwing or depositing brush, trees, stumps, logs, or any refuse or debris whatsoever, in said road, or on the sides or in the ditches thereof, or by fencing across or upon the right of way of the same, or by planting any hedge or erecting any advertising sign within the lines established for such road, or by changing the location thereof, or shall obstruct said road, highway or drains in any other manner whatsoever, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than five dollars nor more than two hundred dollars, or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment. The road overseer of any district, or county highway engineer, who finds any road obstructed as above specified, shall notify the person violating the provisions of this section, verbally or in writing, to remove such obstruction. Within ten days after being notified, he shall pay the sum of five dollars for each and every day after the tenth day if such obstruction is maintained or permitted to remain, such fine to be recovered by suit brought by the road overseer, in the name of the road district, in any court of competent jurisdiction.' Laws 1917, p. 442.

It is clear enough that the amount sued for is a penalty or forfeiture for the violation of a penal law. The provisions of the Constitution are self-executing and of their own proper vigor vest the ownership of the proceeds from such fines and penalties in the several counties of the state to 'sacredly preserve' in trust as 'a county public school fund.' Skinner v. Railroad, 254 Mo. 228, 162 S.W 237. So that, unless the Legislature otherwise provides, we may assume that it had no intention of violating the Constitution and giving the beneficial ownership of the fines and forfeitures sued for in this case to any other fund or devote them to any other public purpose. It is true, the statute in question does provide that such fine 'be recovered by a suit by the road overseer in the name of the road district.' But such requirement is but the method of procedure...