State v. St. Louis, Iron Mountain & Southern Railway Co.

162 S.W. 144, 253 Mo. 642, 1913 Mo. LEXIS 288

• Court: Supreme Court of Missouri
• Decided: December 24, 1913
• Status: Published

Opinions

OPINION.

I.

BOND, J.

(After stating the facts as above). — In considering this case we shall confine our views to the claim that the penalty clause of the statute supra is void under the provisions of the Constitution giving the proceeds of fines to the school fund of the respective counties, since that question goes to the root of the right to recover in this action, which is only a suit for the penalty provided by the statute.

Power ofLegislature.

The power of the General Assembly to enact laws is subject in all matters to the limitations °f the Constitution of this State, whether they be expressed by prohibitory clauses, or by affirmative provisions relating to the matter in hand. Both methods of restriction are equally binding on the lawmaking power and no valid law can be enacted by it which contravenes either. [Redmond v. Railroad, 225 Mo. l. c. 731.]

In this case the constitutional restraint upon the Legislature is in the form of an affirmative provision of the organic law that “the clear proceeds of all penalties and forfeitures . . . shall belong to . . . the county public school fund.” [Constitution, art. 11, sec. 8.]

Diversion': statutetitUti°nal

Unquestionably the attempted diversion of any such penalties or forfeitures by the Legislature would nullify the act, if it was passed for that sole purpose, for the Constitution kav*:ag spoken as to the proper receptacle of such funds, the power of the Legislature to speak in a contrary way is stilled and ceases to exist until the constitutional provision shall be amended or abrogated. It is evident that so much of the penalty clause of the act under review as purports to create a penalty payable to the good roads fund is void.

But does this conclusion invalidate the penalty clause so that a different beneficiary .to the one specifically designated by the Legislature may not claim thereunder, upon the theory that it was the intention of the Legislature to create a penalty in favor of such other beneficiary though not mentioned in' the act?

The test in such case is whether, considering the words and objects of - the. law or section thereof containing the unconstitutional provision, we would be warranted in holding that it would have been enacted in the changed form if the nnconstitntionality of its present state was known at the time.

In the present case, the penalty clause under review is void on its face in so far as it purports to create a penalty or forfeiture payable to the good roads fund.

"With that in mind, we have searched the language of the penalty clause added by the amendment of 1905, and we fail to discover any basis in its terms or purposes, which could support a legal intendment that it was enacted for any other object than the creation of a debt enforceable on behalf of the good roads fund. That purpose is explicitly stated in the Laws of 1905, p. 113, and no other purpose is indicated by any of the language employed in said amendment than the single and indivisible one of creating a specific debt for the benefit of the good roads «fund which the amendment sought to accomplish by striking out the provision which the former act contained, affording a right of private action to the shipper of goods and substituting therefor a specific and fixed sum to be “forfeited and paid” to the good roads fund, and recoverable by a civil action. It will be observed that the session act does not say that the disobedient carrier shall pay a fine, and thereafter provide such fine shall inure to the good roads fund, nor does it contain a word from which a rational inference can be drawn that it was the legislative motive first to create a fine, and then to indicate its recipient. Had that form of phraseology been used, some ground might exist for "the contention that the act was primarily designed to create a penalty or forfeiture, and secondarily to give the benefit of it .to the good roads fund, in which event we would sustain so much of it as fixed the penalty. This was ruled in State v. Bockstruck, 136 Mo. l. c. 340; 359, where section 7 then held in judgment prescribed a fine, and section 11 later provided a disposition of it into the State Treasury, and where the latter section was held to be void without affecting’ the validity of the former. To the same effect was the ruling made in State v. Newell, 140 Mo. 282. But there is no such divisibility in the language before us, which is direct and preclusive, to-wit: “ . . . shall forfeit and 'pay to the good roads funds of this State” the sum of :$10 for each day of noncompliance. These words «imply create a specific fund for a single purpose in a single section or paragraph which cannot be separated without affecting the sense, meaning and object had in mind by the Legislature when they were selected. As they stand, they do not imply that the fund thus created was intended primarily for the unnamed school fund and not for the named good roads fund. The Legislature no more had in mind the school fund than it did any other beneficiary of the various kinds who are the objects of the bounty of the State, or who comprise its eleemosynary institutions. Had they thought of the public schools as the constitutional do-nee of fines and penalties they would not have enacted a law, which they must have known would be a simple nullity; for we are not permitted to ascribe the absurd motive to them of intentionally violating the Constitution of the State or knowingly enacting a nugatory law. These consideration's convince us that there was no thought or purpose on the part of the lawmakers •when they enacted the penalty clause, that it should be given to some other than the particular beneficiary named by them, and satisfy us that but for creating or raising money for the good roads fund the penalty clause of 1905 would never have been adopted.

II.

History of Act.

In the able brief 'of the learned counsel for the State it is said, in effect, that the previous history of the main act to which the penalty clause was attached in 1905 indicates that the Legislature then intended to make the main act more effective by imposing a fine enforceable by the direct action of the State and which when collected should be disposed of according to the Constitution.

A review of the history of the act does not impress us with the logic of this suggestion. When the act was originally passed it was expressed as section six of the Laws of 1872, pp. 73-4, and provided in substance that railroad corporations should receive and deliver grain at the crossings and junctions of all other railroads, canals and navigable rivers. [R. S. 1879, sec. 817.] The secondary public fine for the violation of the original act was abrogated in the revision of 1879, leaving only a right of private action for damages. to the consignee or person entitled to the control of such property. The next amendment was in 1881. (R. S. 1889, sec. 2622), and required the additional: duty of constructing switches and freight houses at. towns containing two hundred inhabitants and stopping one train a day there to receive and unload freight, and the only penalty attached to the violation of this amendment was a right of action given to the consignee or person entitled to the control of the property. [R. S. 1889, secs. 2622, 2618.] The main act was finally amended in 1905 and is now complete as section 3158 set out in the foregoing statement. Prom the passage of the original act, and during all of its transmutations until its present form, no public penalty for its enforcement has existed later than 1879, although during the whole period of its existence a primary provision for its enforcement by a private suit has been continued. The secondary penalty imposed in favor of the public was abolished by the provisions of 1879 and has never reappeared until the amendment of 1905, if such a construction can be given to that amendment. This cannot be done on any theory harmonizing with the prior trend of legislative thought, as that has been shown by the action taken at the various stages of the evolution of the entire act in its present form, for the short-lived secondary purpose of affording the public revenue from the act disappeared upon its first amendment, and the subsequent amendments simply afforded a right of private recovery by private individuals by civil action, which was finally changed so as to give the benefit of a civil action to the good roads fund. If the Legislature felt any duty in 1905 to make more effective provisions for the enforcement of the act, as suggested by the learned counsel for the State, by turning its penalties and forfeitures over to the State, they certainly did not manifest that motive during the anterior history of the act. And that they did not in fact carry out such purpose in 1905, is apparent from a simple inspection of the final amendment then put to the act. We conclude that there is nothing in the development of the present act from prior acts, which justifies the assumption that when the finishing touch was given to it, the Legislature entertained any unexpressed purpose to create the penalty then provided for the benefit of the school ■ fund.

On the contrary we think the Legislature meant exactly what it said, when it undertook to bestow the penalties and forfeitures of this act to the good roads fund. The creation of such a fund was then and is now a matter of proper concern and keen interest-to the people of this State and necessarily appealed to their representatives when engaged in the task of bettering the laws of the State. That the urgency of this appeal was felt is shown by the abolition for that purpose of the prior statutory right of action to the owner of the property.

III.

Striking Out Words of statute.

The learned counsel for the State argues that if the sentence of the penalty clause he dismembered by erasing the name of the payee of the penalty, a valid act would spring into existence, because the effect of the constitutional provision would be to olate “school funds” for the erasure of the legislative beneficiary. But would this be any the lebss an interpolation of a different payee, than if the former name was stricken out and the new name written in. We do not understand that it is pretended that a sentence which completely expresses the thought of its author, can be physically spoliated so as to express a contrary idea and still continue to bear the meaning which it carried before. There is no rule of construction which would tolerate such an abnormality. So in this case the learned counsel would hardly contend if there were no general constitutional provisions whereby all fines go to the school fund, that the legislative purpose to give this fine to the school fund could be arrived at by striking out the words ‘ ‘ good roads ’ ’ and substituting the words ‘ ‘ school fund. ’ ’ For that would be a bold and palpable act of judicial legislation by interpolating words destructive of the plain purpose of the lawmakers. Certainly the effect would be the same if the same thing is accomplished by erasure and the supplial of other words, as the legal effect of a fortuitous provision of the Constitution that all fines shall go to the “school fund.” The legislative intent is no less thwarted in the one ease than the other, the only difference being that in the one instance the new words would be actually inserted in the act, while in the other they would be automatically read into the act perforce the Constitution, in a way just as antipodal to the expressed intention of the Legislature as if the words “school fund” had been written into the act after the erasure of the designated payee. For this reason we are unable to concur in the argument of the learned counsel for the State' that it is permissible in order to sustain the constitutionality of the paragraphs in question, that the sentence expressing the purpose and notice of the Legislature, should be so altered by erasure and legal substitution of words, as to give a meaning essentially different from that entertained and expressed bv the framers of the language.

IV.

Cases from Other states.

Neither do we think the persuasive authorities cited in the latest brief for the State, Railroad v. State, 55 Ark. l. c. 207-8; Harrod v. Latham, 77 Kan. l. c. 469, are in point. In the Arkansas case the fine was divided, part of it being given to an informer, an improper desti nation under the Constitution of that State. The act was held constitutional because its words showed the intention to create a fine additional to that portion which it gave to the informer, and the court could well hold, as it did, that the primary purpose of the Legislature to create a fine would justify sustaining’ the law on that ground and that this general intent could be' effected by applying the part of the fine improperly allowed to the same purpose which the other part of the fine would go under the laws of Arkansas. The Kansas case was like the Arkansas except that the fines imposed by one section of the Kansas act were in another section divided between the county and the informer. It was correctly held in that case that the-later section only, being separable and independent of the former, was unconstitutional. In the case at bar the pith of the amendment of 1905 is expressed in one paragraph or section and in one sentence, and for the reasons stated it does not fall within the purview of any of the authorities cited in the brief of the State. The act in question shows on its face that the creating of the fine of ten dollars a day was interdependent upon its payment to the good roads fund. Under the settled law this part of the act cannot remain valid if that payee is substituted by another. [Simpson v. Iron Works Co., 249 Mo. l. c. 391; State ex rel. v. Gordon, 236 Mo. l. c. 170.] We therefore hold that so much of. the section of the present statute now under review as is contained in the words copied in italic type in the foregoing statement is in contravention of the Constitution and void.

This conclusion goes no further than stated, and does not affect the remainder of the act as it now stands nor the right to compel obedience to its requirements by proper procedure, but the judgment rendered in this case, for the amount fixed in the unconstitutional penalty clause added to the act in 1905, is reversed.

Graves, Walker and Faris, JJ., concur; Lamm, G. J., and Woodson, J., concur in separate opinions. Brotan, J., dissents.