State ex rel. Kemp v. Hannibal & St. Joseph Railroad

| Mo. | Oct 15, 1886

Ray, J.

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 •of the defendant to ring a bell or sound a whistle at .a certain public crossing, on the railroad of defendant, in Livingston county, Missouri. The proceeding was commenced in said county, before a justice of the peace, where plaintiff had judgment, from which defendant appealed to the circuit court, where plaintiff again had judgment, from wdiich the defendant appealed to this court.

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 in the state of Missouri, where the said railroad crosses a traveled public road, in Mooresville township, in the county and state aforesaid, the said traveled public road leading from the southwest corner of section 17,. township 57, range 25, a point north of said railroad track to the southwest corner of same section, a point south of said railroad track, and not being in a city, the said agents, servants, officers and employes of the defendant neglected and failed to ring and keep ringing, a bell, and also neglected to sound a steam whistle oi said engine, and failed to ring said bell, or to sound said; steam whistle belonging to said engine, at any time before crossing said traveled public road where said railroad crosses the same, within eighty rods of said traveled public road where said railroad crosses the same, 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 by section 806, of the Revised Statutes of Missouri, and asks judgment for the said sum of twenty dollars with costs of suit.

“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, between the same parties, but the court, in its discretion,, overruled said motion, to which defendant excepted, and thereupon filed a motion to dismiss the cause for certain reasons hereafter mentioned, but the court also overruled, this motion and defendant likewise excepted.

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 'motion to dismiss the cause are the-same as those heretofore considered as the controlling questions in the case, and for like reasons need not again be re-stated, or re-argued.

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. no difficulty in determining how and to whom the penalty was to go, under the statute, and awarded judgments and execution accordingly. We think, therefore, that the complaint in question was a good and sufficient /‘information,” under section 1674, Revised Statutes, 1879, and for these and other reasons hereinbefore stated, the judgment of the circuit court is affirmed;

All concur.