89 Mo. 571 | Mo. | 1886
This action was instituted and conducted by the prosecuting attorney of Livingston county, Missouri, in the name of the state of Missouri, at the relation of Thomas H. Kemp, as such prosecuting attorney, upon the information of John Hudgins, informer, to recover the penalty prescribed by section 806, Revised Statutes, T879, for a failure on the part
The “information,” or complaint, filed before the justice, as the basis of the action or prosecution, was •duly signed by said prosecuting attorney of said county, .and is as follows, to-wit:
■“ The state of Missouri, at the relation of Thomas H. Kemp, prosecuting attorney for Livingston county, in the Seventeenth Judicial Circuit in said state, upon the information of John ITudgins, Informer, Plaintiff.
vs.
'“The Hannibal & St. Joseph Railroad Company, Defendant.
“ The plaintiff for cause of action, states that defendant is a corporation, duly incorporated under the laws of the state of Missouri, and owning and operating -a railroad track from Hannibal, on the Mississippi river, to St. Joseph, on the Missouri river, all in said state, on which said defendant, by its agents and servants, officers •.and employes, operates its engine and cars. And plaintiff further states that heretofore and within ten days ¡before the institution of this suit, to-wit: On the twenty-fourth day of September, 1882, while the agents, servants, officers and employes of defendant were operating their .engine, number unknown, on the passenger train west, at about 5 o’clock, a. m., and cars attached thereto, ■over the said railroad track and road bed of the defendant, running and passing through Livingston county
“Tiiomas H. Kemp,
“Prosecuting Attorney."'
The record shows that at the trial before the justice, when both parties appeared, by attorney, a jury was waived, and the cause submitted to the justice, who, upon hearing the evidence, found the defendant guilty as charged in the complaint, and thereupon rendered judgment that defendant forfeit and pay the sum of twenty dollars, and that plaintiff recover the said sum and costs of suit; and that one-half of said twenty dollars be paid to said Livingston county, Missouri, and that the other one-half to said Hudgins, the informer. When the cause reached the circuit court, as shown by the record, the defendant moved the court to consolidate this claim, with certain others of a like character, be
This cause, with some unimportant differences in the-entitling of the cause, and in the language and phraseology of information or complaint, is, in all essential particulars, substantially like the case of The State ex rel. Clay County, Missouri, v. The Wabash, St. Louis & Pacific Railroad Company, ante, p. 562. The material and controlling questions in this case, as in that, are: (1) Whether the action or prosecution is brought-in the name of the right party plaintiff; (2) whether' said section 806, Revised Statutes 1879, is in violation of section 8, article 11, of the state constitution; and (3) whether the “information” or complaint was sufficient, in law, to sustain the action, etc. In the decision of the case above referred to, all these points or questions were ruled in favor of the plaintiff in that cause, and the ruling thus made must be accepted as decisive of this case on all these points, and for like reasons as there assigned, and to which reference is here had.
There are some additional points in this case not raised in that, and these will be here noticed, as far as deemed material to the proper disposition of the case, with such further remarks about the two cases as may seem appropriate and necessary. While the trial court might, with propriety, so far as the record discloses, have consolidated this with the other causes of a like character between the same parties ; yet, as this, under section 3656, Revised Statutes, 1879, is a matter in its discretion, we do not think the ends of justice require a reversal and remanding of the cause on that account. The court might have seen and heard what does not appear of record. The substantial reasons in defendant’s
At the trial, no objections were made to the introduction of plaintiff’s evidence; nor were any exceptions saved at the time, and it is now too late to raise tliat point. Defendant’s objections to the sufficiency of the information or complaint, filed with the justice"(upon the information of the informer, Hudgins), as the foundation of the action or prosecution, áre, we may add, quite technical, and, as we think, not well taken. Section 806, supra, it is true, imposes a twenty dollar penalty for every neglect of its provisions, to be paid by the corporation owning the road and guilty of such neglect, to be sued for by the prosecuting attorney of the proper circuit within ten days after such penalty is incurred, one-lialf thereof to go to the informer, and the other half to the county. It is also true that the cause is entitled: “ The State of Missouri ex rel. Kemp, Prosecuting Attorney for Livingston County, Mo., upon the information of Hudgins,” the informer; yet, the complaint itself, after stating, with reasonable certainty, the facts and averments necessary to show defendant’s liability under said section 806, concludes as follows: “And plaintiff states that then and thereby said defendant incurred the liability to pay the sum of twenty dollars penalty, and plaintiff sues for said penalty as provided Toy section 806, of the Revised Statutes of Missouri ; and aslcs judgment for said sum of twenty dollars, with costs of suit.”
Section 806, as we have seen, on its face provides that the penalty shall go — one-half to the informer, and the other one-half to the county.- Taking the complaint altogether, the title and conclusion inclusive, there is no want of perspicuity or certainty, and the justice who. tried the cause in the first instance had, as we have seen.
