125 Ark. 40 | Ark. | 1916
On the 10th day of August, 1915, the prosecuting attorney filed an information before a justice of the peace in Pope County, Arkansas, charging that the St. Louis, Iron Mountain & Southern Railway Company, on the 2d day of August, 1915, did unlawfully fail, neglect and refuse to place and maintain blocks of sufficient size to prevent employees from getting their feet caught in the fifth frog east of the icing station in the yards at Russellville, Ark., as required by section 1, Act 261, of the General Acts of 1911.
On the 11th day of August, 1915, the prosecuting attorney filed another information before a justice of the peace in Pope County, charging that the same railroad company on the 3d day of August, 1915, failed, neglected and refused to place and maintain blocks of sufficient size to prevent employees from getting their feet caught in a certain frog; being the second frog east of the icing station in Russellville, Arkansas, as required by section 1, Act 261, of the Acts of 1911. The defendant was convicted in each case before the justice of the peace and took an appeal to the circuit court. The trial in the circuit court again resulted in the conviction of the defendant in each case, and from the judgments rendered, the defendant has appealed to this court.
The cases were consolidated here for the purpose of hearing.
The informations were filed by the prosecuting attorney under Act 261 of the Acts of 1911. The act reads as follows: “Section 1: That any company owning or operating any railroad in this State shall be required to place and maintain blocks of sufficient size in all its frogs and guard rails to prevent employees from getting their feet caught therein.”
“Section 2. Any company owning and operating any railroad in this State violating the provisions of this act, shall be liable on conviction to a penalty of a fine of not less than $25 for each separate offense.” General Acts of 1911, pages 257, 258.
So it will be seen that under our code the recovery of statutory penalties may be by actions of a civil or criminal nature as the Legislature may direct. The act providing the penalty for the failure of a railroad company to light switches contains a clause which provides in express terms that the penalty shall be recovered in civil actions in the name of the State. St. Louis, I. M. & S. Ry. Co. v. State, 107 Ark. 450. This act was passed at the same session of the Legislature as the act now under consideration. The act now under consideration does not provide that the penalty shall be recovered in a civil action in the name of the State. The omission is significant in indicating that 't was the intention of-the Legislature that the penalty under the frog statute should be recovered by criminal proceedings.
As said by Mr. Justice Field, in United States v. Chouteau, 102 U. S. 611, “Admitting that the penalty may be recovered in a civil action, as well as by a criminal prosecution, it is still as a punishment for the infraction of the law. The term ‘penalty’ involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution. * * * To hold otherwise would be to sacrifice a great principle to the mere form of procedure.” The penalty provided by the statute is a punishment that the State inflicts upon the carrier which has violated the protective measures provided by the statute. The statute in express terms provides that the company violating the provisions of the act shall be liable on conviction to a penalty of a fine.” The words “fine, penalty and conviction” convey the idea of punishment, imposed and enforced by the State.for a crime or offense against its laws. The penalty denounced by the statute was in the nature of a punishment for the nonperformance of the acts imposed by the statute. There is nothing in the langu'age used which indicates that the Legislature intended that the proceedings should be regulated by the practice in civil actions. This the Legislature had the power to do, but it is sufficient to say that it has not done so. It is manifest that the Legislature intended criminal process for the enforcement of the penalty prescribed by the act. The prosecutions were begun by informations filed by the prosecuting attorney before justices of the peace and as the proceedings contemplated by the statute are criminal, the justice of the peace had jurisdiction of them and the circuit court properly so held.
In case No. 2080, the prosecution was commenced on August 10, 1915, and the judgment in that case will be affirmed.
The information in No. 2081 was not filed until the 11th day of August, 1915, but it charged a violation of the statute on the 3d day of August, 1915. This was prior to the commencement of the first prosecution, and could not be done under the rule we have laid down above.
It follows that the judgment in No. 2081 will be reversed and the charge contained in it against the defendant dismissed.