82 Mo. 221 | Mo. | 1884
This is an action instituted in the circuit court of the city of St. Louis under what is popularly known as the 43d section of the general corporation law of this State, for double damages for killing plaintiff’s mule on defendant’s railroad. The plaintiff recovered judgment for $135, which on motion of plaintiff' was doubled by the court and judgment entered accordingly. From this judgment the defendant appealed to the court of appeals where the judgment of the lower court was affirmed proforma,. Defendant has brought the case here on appeal.
I. This court is invited by appellant, in a most elaborate and creditable argument, to again consider and determine the constitutionality of said 43d section. The constitutionality of this section of the statute was fully considered and affirmed in the case of Barnett v. Railroad Co., 68 Mo. 56, which ivas followed in Cummings v. Railroad Co., 70 Mo. 570. But counsel urge those decisions-were under the constitution of 1865, quite unlike certain provisions of the constitution of 1875. The validity of this section under the constitution of 1875 was considered by Judge Hough in the opinion delivered by him in Barnett v. Railroad Co., in so far, at least, as the validity of the law was involved in giving the penalty over and above the actual value of the animal to the owner thereof instead of to the school fund as appellant now insists should be done. So the validity of this section was directly presented under-
II. It is now urged that the double liability clause of section 43 is repugnant to section 20 of article 2 of the constitution of 1875 which declares : “ That no private property can bo taken for private use, with or without compensation, unless by the consent of the owner.” This provision, in so many words, was not in the constitution of 1865. It is contended that so much of the damages allowed the owner of property injured by a railroad as exceeds its. actual value is, in effect, taken from the company without compensation to it and against its assent. The logic of this argument literally taken, would exempt the company offending from single damages, for it receives no compensation at all where it merely destroys the property of the citizen and gives, presumably, only an enforced assent to making restitution in single damages. It would apply
It is among the canons for the interpretation of laws ■that the intention of the law-maker is often to be deduced from a view of the whole and every part of the instrument •or act, taken and compared together. “ The real intention, when accurately ascertained, will always prevail over the literal sense of the terms.” It is true that a thing which is within the mind and intention of the framers of the law is .as much within the statute as if it were within its letter; “ and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the .....leers.” People v. Utica Ins. Co., 15 John. R. 380, 381. So may the letter of the statute be enlarged or restrained according to the true intent of the framers of the law. Whitney v. Whitney, 14 Mass. 92, 93; Riddick v. Governor, 1 Mo. 147; State v. Emerson, 39 Mo. 80; State v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519. This intention is to be taken or presumed according to what is consonant to reason and good discretion, and so as neither to embarrass the sovereign power of the State, nor lead to eonse
1. Acts which give the party injured treble damages:
For willful injury to the property of a railroad company, R. S., § 808 ; G. S., 1865, 342, § 41; railroad exacting illegal freight charges, §§ 835, 844; Acts 1875, p. 114, § 5,; p. 118, § 14 ; waste by tenant for life or years, § 3107; G„ S., 743, § 42 ; any wanton waste by tenant, § 3114; G. 8.y 743, § 49; certain neglects of duty by clerks of courts, § 2109 ; Acts 1874, p. 26, § 17 ; intentional trespass on real estate, § 3921; G. S. 371, § 1.
2. Acts which give the party injured double damages:
For malicious trespass on personal property, § 3928 G. S. 380, § 8, willful waste by administrator, 286; G. S. 513, § 5; evading payment of tolls on turnpike road, § 867; Acts 1868, p. 160, § 2; certain neglects of duty by recorders,. § 3823; G. S. 161, § 18; same by justices of the peace, § 2847; G. S. 699, § 14; same by clerks of courts, § 2773;, Acts 1868, p. 59, § 6: killing or injuring live stock trespassing where there is no fence, § 5655 ; G. S., p. 385, § 6; damage to live stock caused by unfenced salt-petre works, § 5668; G. S. 385 § 9; certain acts of master of a steamboat, § 4283; G. S. 760, § 59; sheriff failing to settle with his county, § 5402; G. S. 231, § 43; drover driving off' anothei’’s live stock, § 5469; Acts 1868, p. 80, § 1; failure of finder of lost property to make'public cfiscov
3. Acts which give other measures of recovery:
Eor steamboat taking cordwood without owner’s consent, treble damages and $20, § 4269; G. S. 758, § 45 ; certain trespasses on real estate, double damages and $5, § 3922 ; G. S. 379, § 2; willful injury to property of a turnpike -company, double damages and $10, § 870; G. S. 347, § 19; unlawfully disclosing contents of a telegram, all special damages and $50, § 887; G. S. 350, § 13; unlawfully refusing to enter satisfaction of a mortgage, all damages sustained and ten per cent, of the mortgage debt, §§ 3312, ■3316; G. S. 619 § 15; 620, § 19; failure of constable to •execute process, all damages sustained and $10, § 2864; G. .8. 702, § 24; failure of officer serving execution to account for proceeds, the full amount of proceeds with interest and damages at 5 per cent per month, § 2403; G. S. 648, § 65; neglect of tobacco inspector to perform his duties, all damages sustained and $50, § 5857; Acts 1871, p. 82, § 5 ; .•affixing false label or trademark to merchandise, the damages sustained and $500, § 7547; Acts 1870, p. 74, § 4; overcharge on freight by railroad company or any employe, any sum not exceeding $1,000, including an attorney’s fee, :§ 822; Acts 1872, p. 70, .§ 4; failure of railroad company to deliver consignments at elevator as ordered by consignor, or at junction or crossing of another road, full value of consignment and $25, §§ 813, 817; Acts 1872, p. 75 §§ 4, 6.
Some of these statutes are old and historic. They are inwoven with the legislative policy of the State. They are grounded in the wisdom of experience. Their long continuance justifies the presumption that the people and their law-makers have found them preservative of the public welfare, and a shield of just protection to private property. Why, therefore, may I ask, in respect of the constitutional provision und^r consideration and others invoked in this appeal, should the framers of the constitution of 1875, representing as they did, the sovereignty of the whole people,
III. It is likewise contended that said section 43 is in conflict with section 53, of article 4, of the constitution of 1875. This provision is as follows : “Thegeneral assembly shall not pass any local or special law * * grantingto any corporation, association, or individual, any special or' exclusive right, privilege or immunity, or to any corporation, association or individual the light to lay down a railroad track.” It is argued that section 43 is special, that it-“is partial and discriminates as between individuals and corporations.” Is it just and correct to charge that this-statute grants to any “ individual any special or exclusive right privilege or immunity?” If it named any individual or preferred any particular number of citizens, and declared that they and no others might maintain the given action, it would be obnoxious to the criticism. But this right of action is given to all the people who may be thus injured. It is given as well to any association of people, and to railroad corporations whose stock may be injured by any railroad. Nor is it just or accurate to say of this statute that “ it prescribes a severer punishment against a railroad corporation, owner of a railroad, than an individual owner or partnership owner.” As early as 1872 (Laws of 1872, p. 69, § 2) it was enacted by the legislature that: “ The term railroad corporation contained in this act shall be deemed
Therefore, and wisely, the courts before pronouncing a statute void, demand to be satisfied beyond a reasonable doubt of its vice. So this court has announced. “ Both upon principle and authority the acts of the legislature are to be presumed constitutional until the contrary is clearly shown ; and it is only when they manifestly infringe on some provision of the constitution that they can be declared void for that reason. In case of doubt every possible pre- - sumption, not directly and clearly inconsistent with the language and subject matter, is to be made in favor of the constitutionality of the act.” State ex. rel. v. Railroad Co., 48 Mo. 468; The State v. Able, 65 Mo. 357. Much of the vigorous argument in this case is directed against the wisdom and policy of the law in question. Some of the strictures upon the abuses it begets in practice may be just. But, as was aptly said by Cooper, J., in Davis v. State, supra: “ Whether a statute is contrary to the genius of a free people is a question for the legislature, not the j udge. It cannot be annulled upon supposed equity, the inherent rights of freemen, or any general and vague interpretation of a provision of the constitution beyond its plain and obvious import.”
It is urged by counsel for respondent that the appellant, having accepted its incorporation under the general corporation law of the State, including the 43d section, it is estopped from denying its validity. If the provision can be regarded as a condition proposed by the State in granting the franchise that the incorporator should pay such damage to whover might be so injured, and defendant ac
Counsel for the appellant have argued very extensively many imputed errors of the trial court pertaining to the ■sufficiency of the petition and refusal to sustain demurrer to ihe evidence. These questions are not before us. The .amount of the judgment “in dispute” being less than $2,500, the defendant brings the ease here only on the ground that it involves “ the construction of the constitution of the United States or of this State.” Section 12, article 6, State Constitution. These constitutional questions we have con■sidered. That exhausts our jurisdiction on this appeal. It follows that the judgment of the court of appeals should he affirmed.