State ex rel. Clinton County v. Han. & St. Jo. R. R.

| Mo. | Feb 15, 1873

Adams, Judge,

delivered the opinion of the court.

This was a suit brought before a justice of the peace under the statute, against defendant for the penalty allowed against the defendant for failing to ring a bell or sound a whistle before its train reached a road crossing.

The service of the summons was on a station agent. The defendant failed to appear, and the justice rendered judgment by default for the penalty, twenty dollars. The defendant in due time filed a motion to set aside the judgment, for the reason that there had been no sufficient service of the summons. The justice overruled the motion, and defendant appealed to the Circuit Court. In that court the defendant filed a motion to dismiss the suit, because there was no sufficient service of the summons. The court sustained this motion, and dismissed the suit. Plaintiff excepted, and has brought the case here by writ of error.

The on-ly question here, is the proper construction' of section 42, Ch. 63, 1 Wagner’s Statutes 310, which reads: “Sec. 42. All penalties imposed upon railroad companies by this chapter, may be sued for in the name of the State of Missouri ; and if such penalty be for a sum not exceeding one hundred dollars, then such suit may be commenced before a justice of the peace, and may be commenced by serving the summons on any director of such company.

The question is, whether‘the mode of serving the summons as indicated by this section, is merely permissive or absolutely mandatory. It is conceded that in ordinary cases the service on the station agent would have been proper under Section 26, 1st Wagner’s Statutes 294; but it is contended that, inasmuch as this suit is for a penalty, the word may, as used in connection with the service of the summons, is restrictive, and no other mode is allowed than the one pointed out by this section. It strikes me that such a construction is too narrow to meet the end the legislature had in view. The object was to punish the Company for a neglect of duty, and to facilitate this object, an additional mode of serving the writ is provided. The word,may, when it concerns the public interests, or the rights of third persons, very often must be construed as meaning, shall, and hence that word as used in the same section in regard to bringing the suit in the name of the State, before a justice of the peace, ought to be considered as imperative, and as used in the sense of the word, shall. But there would be no interests of the State or third persons advanced by restricting the service in this case to a director. The simple object of such service, is to bring the defendant before'the Court, and there can be no peculiar reason why a director rather than any other agent should have been selected as the only person on whom the writ could be served.

In my judgment, the word may, as used in this section, in regard to the service of the writ on a director, is permissive and additional, and not restrictive or mandatory.

Let the judgment be reversed and the cause remanded.

The other judges concur.