182 Mo. App. 658 | Mo. Ct. App. | 1914
This is a suit under the statute for a penalty. Defendant interposed a demurrer to plaintiff’s petition, which was overruled by the court. Upon its demurrer being thus overruled, defendant declined to plead further and suffered judgment to go against it, as is frequently done in such cases. The appeal is prosecuted from this judgment, and the questions for consideration arise on the face of plaintiff’s petition. The petition, omitting formal parts and signature, is as follows:
“The State of Missouri, at the relation of Seebert Gr. J ones, Circuit Attorney of the city of St. Louis, for first amended petition states that in 1906 and up to' the date of institution of the suit, the Howe Scale Company of Illinois was a corporation for pecuniary profit, organized under the laws of Illinois, and not a railroad nor an insurance company; that it was engaged, other than through drummers and traveling salesmen, in manufacturing and selling scales, machinery, etc., in the State of Missouri, and that its principal- office within the State was located in St. Louis;*661 that defendant neglected and failed to file in the office of the Secretary of State of the State of Missouri a copy of its charter and articles of association, duly' authenticated by the proper authority, together with a sworn statement under its corporate seal, particularly setting forth the business of the corporation which it was engaged in carrying on or which it proposed to carry on in this State, and its principal officer or agent in Missouri had failed to make and forward to the Secretary of State, with the affidavits required, a statement sworn to of the proportion of the capital stock of said corporation represented by its property located and business transacted in Missouri, setting out the location of its principal office or place of business in this State for the transaction of its business where legal service might be obtained upon it, and had neglected to pay into the State treasury any incorporating tax or fee; ‘whereupon plaintiff states that defendant is-subject to a fine of not less than $1000;’ as provided by section 1026, Revised Statutes 1899; for which plaintiff asked judgment.”
The suit was instituted in the circuit court of the city of St. Louis, which possesses jurisdiction in civil cases alone, as, under certain provisions of the statutes, cases involving misdemeanors are committed to the court of criminal correction, and felonies to a separate division of the circuit court possessed of jurisdiction in criminal cases. Because of this, it is urged, on the demurrer, that the court possessed no jurisdiction whatever over the subject-matter of the action, and the argument proceeds in the view that the offense for which the penalty is sought to be recovered is a misdemeanor under our statute because it is denounced through levying a fine therefor. The question thus presented is to be disposed of on a consideration of the statute declaring the penalty and authorizing its recovery. The statute on which the suit predicates is parcel of the provisions relating to foreign corpora
The suit predicates on section 3040, Revised Statutes 1909', which is as follows:
“'Every corporation for pecuniary profit, formed in any other State, territory or country, now. doing business in or which may hereafter do business in this State, which shall neglect or fail to comply with the conditions of this law, shall be subject to a fine of not less than one thousand dollars, to be recovered before any court of competent jurisdiction; and it is hereby made the duty of the Secretary of State, immediately after August 1, of the year 1891, and as often thereafter .as he may be advised that corporations are doing business in contravention to sections 3037 to 3041, inclusive, to report the fact to the prosecuting* attorney of the county in which the business of such corporation is located, and the prosecuting attorney shall, as soon thereafter as 'is practicable, institute proceedings to recover the fine herein provided for, which shall go into the revenue fund of the county in which the cause shall accrue; in addition to which penalty, on and after the going into effect of said sections no foreign corporation, as above defined, which shall fail to comply with said sections, can maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort: Providedf that the provisions of this section shall not apply to railroad companies which have heretofore built their lines of railway into or through this State; nor to ‘drummers’ or traveling salesmen soliciting business in this State for foreign corporations which are entirely nonresident.”
Because this statute declares such corporations as fall within its terms “to be subject to a fine,” it is urged that it creates and denounces a misdemeanor, which may be prosecuted alone in St. Louis in the
It appearing, therefore, that the employment of the word “fine” in the statute does not, in and of itself, exclude the use of all remedies for its recovery, other than that by information on the part of the prosecuting attorney, as in strictly criminal cases, the argument is to be further considered by an interpretation of the statute to the end of ascertaining the intention of the Legislature in that behalf. When the statute is thoughtfully considered, it is to be noted, first, that it does not in terms denounce the offense contemplated therein as a misdemeanor. No apt words are employed to enforce such a conclusion. Moreover, in a subsequent portion of the section the statute uses the word “penalty” interchangeably with that of “fine.” However, this is of but slight significance, in that penalty is a generic term which includes bo'th fines and forfeitures. B'oth words are suggestive of
While, in interpreting a statute, it is the duty of the court to ascertain and expound the intention of the Legislature, from its words and context, other sections in pari materia, and, especially, when parcel of the same act, may be looked to for aid in arriving at the true meaning. Upon considering some of the other sections in pari materia with this one, it appears certain omissions are therein expressly declared to be misdemeanors, .whereas no such word appears here. By section 3044, Revised Statutes 1909, it is expressly declared that the violation of any of the provisions of sections 3042 to 3047, inclusive, by any corporation “is hereby made a misdemeanor.” But this does not include section 3040, now under review. It thus appearing that other sections in pari materia do not reveal an intention on the part of the Legislature to create a misdemeanor, so' as to expressly require the penalty to be pursued by information as in criminal cases, the question is to be determined alone by reference to section 3040-.
It is true that, by that section, the duty of collecting the penalty for the State is cast upon the prosecuting attorney of the county in which the business of such corporation is located, but that officer may invoke civil remedies on behalf of the State, as well as others, in proper cases. The direction to the prosecuting attorney with respect to the precise fine or penalty involved here is that ‘ ‘ the prosecuting attorney shall . . . institute proceedings to recover the fine herein provided for.” These words are suggestive of civil rather than criminal proceedings, in that the proceeding is to be instituted to recover. [See Stockwell v. U. S., 13 Wall. 531, 543, 80 U. S. 531, 543,] From the words and the context of the statute, it cannot be said to be designed entirely as strictly criminal or penal in character, but is rather intended to be remedial as
The demurrer challenges the right of the Circuit Attorney of the city of St. Louis to prosecute this suit under the statute, for it is said the prosecuting attorney alone is authorized to do so. The statute is a public one, designed to apply to the entire State, and employs the words “prosecuting attorney of the county.” In such acts, the word “county” includes the city of St. Louis, which exists under a separate organization possessing similar attributes to'those enjoyed by the counties in the State. It is true there is such an officer as the prosecuting attorney in the city of St. Louis, but his duties relate alone to the prosecution of misdemeanors and preliminary examinations with respect to felony charges in the court of criminal correction. By a general statute (Sec. 975, R. S. 1909), the circuit attorney of the city of St. Louis is charged “with the same duties that are prescribed by this article for prosecuting attorneys throughout the State. ’ ’ But it is said the words “prescribed by this article” limit the duties of the Circuit Attorney of the city of St. Louis as by inhibiting him with respect to the instant case, in-that the statute (Sec. 3040, R. S. 1909) above set forth, is not parcel of the article. It is true that section is not a part of the article referred to in
Other questions presented by the brief are concluded here by the judgment of the Supreme Court in this identical case, as will appear by reference thereto. [See State ex rel. Jones v. Howe Scale Co., 253 Mo. 63, 161 S. W. 789.]
The judgment should be affirmed. It is so ordered.
