Atchison, Topeka & Santa Fé Rld. v. State ex rel. Sanders , 22 Kan. 1 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

This was an action brought and prosecuted by Marion Sanders, in the name of the state of Kansas, against the Atchison, Topeka & Santa Fé Railroad Company, for 207 alleged violations of the act of the legislature (Gen. Stat. 206, § 60) requiring railroad companies to ring a bell or sound a whistle at each crossing of every traveled public road or street. Sanders prayed for a judgment for $20 for each of said violations, or for $4,140 in the aggregate — one-half thereof for himself, and the other half thereof to be paid to Lyon county for the use and benefit of the public-school fund, and for costs. He obtained judgment in the court below in his favor and against the railroad company for $1,680, one-half thereof to be paid to himself, and the other half to be paid to the county treasurer of Lyon county for the support of common schools, and for costs. The railroad company then claimed, and it now claims, that said judgment was and is erroneous, and now seeks in this court to have the same reversed. Many questions are raised and presented to this court, some of which relate only to mere questions of practice, but others thereof go to the very foundation upon which Sanders’s supposed right of recovery rests. At the very threshold of the controversy, the railroad company denies Sanders’s supposed right to recover. It claims that even if it did violate said act; by failing to ring a bell or sound a whistle at some traveled public road or street-crossing, still, that the entire penalty imposed for such violation must necessarily be applied, under § 6 of article 6 of the constitution, to the support of common schools, and that not one cent thereof can be given to Marion Sanders; and, therefore, that as he can have no possible interest in the subject-matter of the action different from that of the rest of the community, and that as he is not a public prosecutor, he cannot maintain the action. State v. Anderson, 5 Kas. 90, 116; Craft v. Jackson Co., 5 Kas. 518; Bobbett v. Dresher, 10 Kas. 9; Turner v. Jefferson Co., 10 Kas. 16; Bridge Co. v. Wyandotte, 10 Kas. 326; State v. Jefferson Co., 11 Kas. 66; Miller v. Palermo, 12 Kas. 14; State v. McLaughlin, 15 Kas. 228, 233; Crowell v. Ward, 16 Kas. 60, 62; Center Township v. Hunt, 16 Kas. 430, 439. The railroad company also claims that, as the action has not been nor is it now prosecuted by any public prosecutor, the action must abate. (See authorities above cited.) Among the statutes necessary to be considered for the correct determination of this case are the following, to wit:

“Sec. 60. A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until such crossing shall have been passed; or a steam whistle shall be attached to each locomotive engine, and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and shall be sounded at intervals until it shall have crossed such road or street, under a penalty of twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railway, one-half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.” (Gen. Stat. 206.)

“Sec. 62. All penalties imposed upon railway corporations by this or any other act, may be sued for in the name of the state of Kansas, and if such penalty be for a sum not exceeding three hundred dollars, then such suit may be brought before a justice of the peace of the county in which the penalty accrued, and may be commenced by serving a summons on any officer or agent of such company found within the state.” (Gen. Stat. 206.)

“Sec. 307. Whenever any fine, penalty or forfeiture is or may be inflicted by any statute of this state for any offense, the same may be recovered by indictment (except as in the next section is provided), notwithstanding another or different remedy for the recovery of the same may be specified in the act imposing the fine, penalty or forfeiture: Provided, That in all cases the fine, penalty or forfeiture shall go to the state, county, corporation, person or persons to whom the act imposing the same declares it shall accrue,” (Gen. Stat. 383.)

Said constitutional provision reads as follows:

“Sec. 6. All money which shall be paid by persons as an equivalent for exemption from military duty; the clear proceeds of estrays, ownership of which shall vest in the taker-up; and the proceeds of fines for any breach of the penal laws, shall be exclusively applied, in the several counties in which the money is paid or fines collected, to the support of common schools.” (Kas. Const., art. 6, § 6.)

The words “fine,” “penalty” and “forfeiture” are not defined by any statute of this state; but the word “offense” is. The word “offense” means “any offense, as well misdemeanor as felony, for which any punishment by imprisonment or fine, or both, may by law be inflicted.” (Gen. Stat. 1868, p.384, §310; Laws of 1859, in force from 1859 to 1868, p. 287, § 303.) It also means “any act or omission for which the laws of this state prescribe a punishment.” (Gen. Stat. 820, § 2.) But counsel differ mostly as to the correct signification of the word “fine.” The constitution provides that “the proceeds of fines for any breach of the penal laws shall be exclusively applied” “to the support of common schools.” “The proceeds of fines” mean, of course, the moneys collected from fines, the amounts realized from fines, and just such amounts, no more and no less. “The proceeds of fines” evidently mean all the proceeds, not merely the clear proceeds; not a portion thereof, but all. While the constitution in one clause of said § 6 provides that only “the clear proceeds of estrays” shall be devoted to schools, yet it, in the clause we are now considering, provides that “the proceeds of fines” shall beso devoted. And it provides that they shall be “exclusively” so devoted, thereby leaving no possible room for any portion thereof to be applied elsewhere, or for any other purposes, or for any mere informer to receive any portion thereof. But counsel for. Sanders claim that the “penalties imposed” for breaches of the present penal statute are not “fines” under said §6, art. 6 of the constitution-, and they favor us with a learned and elaborate disquisition concerning the meaning of the words “fine,” “penalty,” “forfeiture,” etc. They are probably generally correct, but still we think they attempt to limit the signification of the word “fine” within too narrow a compass. Even in its legal sense, the word is rather comprehensive. It means, among other things, “a sum of money paid at the end, to make an end of a transaction, suit or prosecution; mulct; penalty.” (Webster’s Diet.; Richardson’s Diet.) In ordinary legal language, however, it means a sum of money imposed by a court according to law, as a punishment for the breach of some penal statute. In the present case, we think the penalty imposed is clearly a fine. It is imposed, not as a compensation for some loss sustained, not as damages, not as interest and not as costs, but merely as a punishment for the breach of a penal statute. The words “penal laws,” as used in the constitution, evidently mean laws for the breach of which a penalty is imposed, and if this penalty is imposed merely as punishment, the penalty is a fine. The legislature may give damages wherever loss has been sustained. It may even give enhanced damages, double damages, treble damages, exemplary damages, and remote as well as proximate damages, but these are all damages because of loss sustained, and not merely punishment for some breach of the penal laws. It has often been questioned, however, whether the legislature could give as damages more than mere compensation for the loss sustained. If it were a new question, the courts 'would probably at the present day hold that the legislature could not do so. The legislature may also give costs, such as officer’s fees, witness fees, attorney’s fees, etc., but these are also given as compensation for loss. The legislature may also give interest, or enhanced damages or penalties, in the nature of interest, but this is also done upon the principle of giving compensation for loss. In all cases where money is imposed merely as punishment for the violation of some law, we think the imposition of such money should be called a fine.

Counsel for Sanders seem to contend thát the penalty imposed in the present case is not a fine, because it is not imposed in a criminal action, but is imposed in a civil action. It is true that the present action is in form a civil action, and without stopping to inquire whether it is rightfully so or not, we would say that we think it can make no difference whether we call it civil or criminal. It is actually prosecuted in the name of the state of Kansas as a punishment for a breach of a penal statute; and it might have been prosecuted in form as a criminal action. (See said section 307, Gen. Stat. 383.) Besides, courts look to the substance of things, and not to mere forms. This is especially true when construing great and important constitutional provisions. The procedure for the trial of causes is a very unimportant thing in determining the nature and character of such causes. The legislature might change the procedure for the trial of cases of murder in the first degree, or for any other crime, so as to make such procedure similar in almost all respects to that for the trial of civil actions, and might call such action a civil action; and yet, by merely so changing the procedure and the name of the action, (not changing the punishment,) it could not deprive the defendant of his right under the constitution to a trial by jury, to meet the witnesses face to face, to be tried in the county or district where the offense was committed, or to refrain from being a witness against himself. The offense would still be a criminal offense under the constitution, whatever the procedure, or whatever the offense might be called.

As throwing some light upon the present case, see Lynch v. The Steamer “Economy,” 27 Wis. 69, and Dutton v. Fowler, 27 Wis. 427. These cases hold that, under the Wisconsin constitution, which sets apart for the school fund “the clear proceeds of all fines collected in the several counties for any breach of the penal laws,” all such “clear proceeds,” whatever they may be, must be so set apart. “ The entire penalty cannot be given to the informer,” and any act of the legislature which disposes of the entire penalty imposed for a breach of the penal laws in any other manner than by giving the “clear proceeds” thereof to the school fund is unconstitutional and void; and it seems to make no difference in whose name or under what procedure the action may be prosecuted, or whether the penalty is called a fine or merely a penalty. A penalty for a breach of “the penal laws” is a fine, and it must go where the constitution says it shall go. • Hence, when our constitution says that “the proceeds of fines for any breach of the penal laws shall be exclusively applied” “to the support of common schools,” it means that all the proceeds of penalties imposed as punishment for a breach of a penal statute (and not imposed as damages where loss has been sustained) shall be exclusively applied to the support of common schools, and that no portion thereof can be given to a mere informer; hence, said act, or any acts of the legislature which give to an informer who has sustained no loss one-half of the proceeds of such a penalty, is unconstitutional and void.

All the Justices concurring.