Barnett v. Atlantic & Pacific Railroad , 68 Mo. 56 ( 1878 )

Hough, J.

— This wras an action under the 43d section of the railroad act for double-damages for stock killed in consequence of the failure of the railroad company to erect and maintain fences as provided by law. The plaintiff had Judgment and the defendant has appealed. ■

The defendant contends that so much of the 43d section as entitles the plaintiff to double-damages is unconstitutional, whether the statute be considered as compensatory or penal in its nature. If it be regarded as compensatory only, it is argued that it is unconstitutional, in that it gives the party injured twice the amount of all damages sustained by him, and thus transfers the property of one man to another as a gratuity, and notin the redress of any injury. If it be penal, it is claimed that it is unconstitutional, in that the penalty is given to the person injured, and not to the school fund.

1. railroad dodiUspenálndnot unconstitutional

It is manifest that if this statute can be maintained at all, it must be maintained upon the ground that it is a Penal statute. Parties civilly injured are by way of recompense, entitled only to full and ^equate compensation for all the damages

sustained by them, and an act of the Legislature which should provide that in all civil actions the plaintiff should recover twice the amount of the damages actually sustained by him, would undoubtedly be declared to be unconstitutional and void.

The statute under consideration is unquestionably a penal statute. It was so regarded by this court in the case of Gorman v. Pacific R. R., 26 Mo. 450, when single-damages only were recoverable under its provisions. In Trice v. Hann. & St. Jo. R. R., 49 Mo. 440, it was said “while the protection of property of adjacent proprietors is an incidental object of the statute, its main and leading one is the protection of the traveling public. To insure such protection railroads are imperatively required to fence their tracks, and the penal liability deemed necessary to enforce this requirement, is a matter of legislative discretion.” A critical examination of the case of Hudson v. St. Louis, Kansas City & Northern Ry., 53 Mo. 536, will show that the sum to be recovered under this section was there regarded as a penalty. The same may be said of the cases of Seaton v. Chicago, Rock Island & Pacific R. R. Co., 55 Mo. 416, and Parish v. Missouri, Kansas & Texas Ry., 63 Mo. 286. In the last two cases, it is true it was said that the statute was both penal and compensatory; but it is evident that the word compensatory was only used to convey the idea that the party aggrieved was tire person authorized to sue for and recover the penalty, and thus receive compensation for his loss. The act in question was chiefly intended for the protection of persons who are transported in railway carriages, and similar enactments have repeatedly been held to be a proper exercise of the police power of the State. Cooley’s Con. Lim., 578, and authorities cited. Being a penal statute, in the absence of any constitutional restriction, the Legislature may lawfully make such disposition of the penalty' imposed by it, as will, in its discretion, best subserve the purpose of the enactment. Instead of giving the whole of the penalty to the State, or the county, or of dividing the penalty and providing for a qui tam action, the wkole of the penalty is given to the party aggrieved, and the method adopted is doubtless a most efficient one for enforcing the statute.

It is said, however, that the 5th section of article 9, of the constitution of 1865, and the 8th section of the 11th article of the constitution of 1875, prohibit the appropriation of this penalty to private uses, by requiring that all penalties shall go to the school fund. The section cited from the constitution of 1865 provides that “ the net proceeds of all sales of lands and other property and effects that may accrue to the State by escheat, * ' * or from fines, penalties and forfeitures, shall be securely invested and sacredly preserved as a public school fund, and faithfully appropriated for establishing and maintaining free schools and the university.” The enactment of penal laws and the imposition of penalties for their violation, is a matter which the constitution has left to the Legislature, and the constitution does not provide that all penalties imposed shall accrue to the State, nor that any shall so accrue ; that matter has likewise been left to the Legislature. Such penalties only as the Legislature provides shall accrue to the State, are to go to the school fund under the constitution of 1865.

The language of the constitution of 1875 is slightly variant from that of 1865, but its purport, we think, is substantially the same. It is as follows: “ * * The clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of the penal or military laws of the State, * * shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund.” Penalties, forfeitures and fines collected in the several counties — that is, collected by the county authorities for the benefit of the county or the State. This section clearly refers to penalties accruing to the public, and not to penalties recovered by private persons for their own use.

Since 1855 we have had a statute requiring that “ all fines and penalties imposed, and all forfeitures incurred in any county, shall be paid into the treasury thereof for the benefit of the school fund of said county.” • Rev. Stat. 1855, p. 452; Rev. Stat. 1865, p. 867. The statute of 1845 was substantially the same, Rev. Stat. 1845, p. 251. Since 1835 the general revenue law has contained a provision requiring the sheriffs of the several counties to collect and account for all the fines, penalties, forfeitures, and other sums of money accruing to the State or county in virtue of any order, judgment or decree of a court of record. These provisions were on the statute book when the constitution of 1875 was framed and adopted, and the section of that constitution above cited clearly refers to these statutes, and will embrace such others of a similar character as the Legislature may hereafter enact. That the statutes cited only include penalties accruing to the public, is too plain for argument.

The case of Atchison & Nebraska R. R. v. Baty, decided by the Supreme Court of Nebraska at its October term, 1877, we do not conceive to be in point. The statute passed upon in that case is not like ours, but gave the owner of live stock killed on the railroad track double its value, unless the value was paid within thirty days after demand made on the company therefor. There the double-damages were given, not for the violation of any criminal or penal statute passed by the Legislature in the exercise of its police power, hut as a penalty imposed upon the defendant in its character as a private person for delay in making payment after demand made, and the law was, therefore, declared to be partial and void. It was also said to be in conflict with a constitutional provision in relation to fines and penalties.

2. action to be-damages: justice’s jurisdiction preme court.

The judgment in this case must be reversed, however, for another reason. The transcript of the justice fails to show that he had jurisdiction of the subject matter of the action, and the statement filed 7 the justice does not appear in the record. It must appear from the statement filed, or from the justice’s transcript, that the stock were killed in the township where the suit was brought. This does not appear, and the question of jurisdiction as to the subject matter may be raised for the first time in this court. Haggard v. Atlantic & Pacific R. R., 63 Mo. 303; Iba v. Hannibal & St. Joseph R. R., 45 Mo. 469. The judgment must, therefore, be reversed, and as it appears that a statement was filed which is not before us, we will remand the cause.

All concur.

Reversed.