Scott v. Missouri Pacific Railway Co.

Smith, P. J. —

This was an action under the provisions of section 810, Revised Statutes, as amended by the act of March 21, 1883 (Sess. Acts, 1883, page 50), for damages and penalty for the failure of the defendant to cause all the dead or dry vegetation and undergrowth upon the right iff way, occupied by it, to be cleared off and burned up or removed twice in each year, for the purpose of preventing the spread of fire, and the destruction of property.

*526 The defendant interposed a demurrer to the plaintiff ’ s petition, for the reason that the same did not state facts sufficient to constitute a cause of action against it, which was overruled. The defendant thereupon declined to further plead. The court rendered judgment for want of answer for the penalty, to reverse which judgment the defendant has appealed.

I. The defendant contends that the petition contains no allegation that the plaintiff is entitled to the penalty recovered, and in support of this contention cites Vandeventer v. Vancourt, 2 N. J. 123. This case decides no more than that, when the penalty is either given to the state, the poor of the township or others, a common informer suing therefor must declare specially qui tam, in order that the interest of these who have right may appear of record and be asserted. The statute just cited does not in terms, or by necessary implication, give the penalty therein provided to the state or the county, and therefore the said citation lends no support to the defendant’s position.

The petition charges the defendant with the neglect of a statutory duty, in consequence whereof plaintiff’s property was destroyed by fire, and he became entitled to recover therefor the damages and penalty provided by the said statute. We think it is sufficiently alleged in the petition that the plaintiff is entitled to the penalty demanded, and that the allegations thereof bring him in the terms of the statute.

The statute in question is as defendant contends penal in its nature and must be strictly construed. But even applying the rule of strict construction invoked by the defendant we do not think that the result for which it contends by any means follows. The universal rule undoubtedly is that the purpose which the legislature had in view in the enactment of a statute must be gathered from the language employed in the statute itself. State v. Railroad, 19 Mo. App. *527 104 ; State v. Hays, 78 Mo. 600 ; Tyman Walker, 35 Cal. 634 .

The language of the statute under consideration is declarative of the purpose the legislature had in view by its enactment, that is to say, “for the purpose of preventing the spread of fire, and the destruction of property” of the adjacent proprietors. It is a matter of common information that, prior to the enactment of this statute, fires had frequently occurred which caused extensive damages to the property adjacent to some of the railroads in this state, in consequence of the failure by such railroads to remove the dry vegetation upon their right of way.

The occasional destruction of property adjacent to railroads by fire is incidental to the running and operation of such railroads through farms and pastoral lands. The legislature, to reduce the danger to property from this cause to its minimtcm, enacted the statute whereby it is made the duty of every railroad in this state to cause all the dead or dry vegetation and undergrowth upon their right of way to be removed twice in each year, and, to compel the observance of this duty, suitable damages and penalty were therein provided for the neglect thereof.

The defendant’s contention is that the penalty provided by this statute goes to the county school fund, and not to the injured party who complains thereof. It seems to us that the statute in terms provides that the injured adjacent property-owner shall recover both the damages he has sustained, and also the penalty.

The exact language of the statute is that “any (railroad) corporation, company or person failing to comply with its provisions shall incur a penalty not to exceed five hundred dollars, and be liable for all damages done by said neglect of duty.” Liable to whornl To the state or the county or the person who has suffered from the neglect of duty. The damages indisputably *528 are recoverable by the aggrieved, and why not the penalty as well? There is nothing in the language, which we have just quoted, that justifies the conclusion that the damages are to be recovered by the aggrieved party, and the penalty by the state or county for the use of the county school fund. If the legislature had so intended, .it would have been so expressed in the statute itself.

The statute being penal, in the absence of any constitutional restriction, the legislature may lawfully make a disposition of the penalty imposed by it as will in its discretion best subserve the purposes of the enactment. Instead of giving the whole penalty to the state or the county, or dividing it and providing for a qui tarn, action, the whole penalty is given to the party who has been injured, and the method adopted is no doubt the most efficient one for the enforcement of the statute.

Section 8, article 11, 'cited from the constitution, provides that the clear proceeds of all forfeitures and penalties, and of all fines collected in the several counties for any breach of the penal or military laws of the state, shall belong to and be securely invested and sacredly preserved in the several counties as a county school fund. The enactment of penal laws and the imposition of penalties for their violation is a matter which the constitution has confided to the legislature. The constitution, it will be perceived, does not require that penalties imposed by statute shall accrue to the state, nor that any shall accrue; that matter has likewise been left to the legislature. Such penalties only as the legislature provides shall accrue to the state are to go to the county school fund under the constitution. Barnett v. Railroad, 68 Mo. 66 . Since the penalty provided by the statute on which this action rests is not required by the constitution, or the statute itself, to go to the county school fund, it would seem but reasonable that such penalty should go along with the damages with which it is coupled by the terms of the statute. We think this *529 to be the meaning of the language employed by the statute.

II. The defendant, after the demurrer was overruled, having declined to further plead to the plaintiff’s petition, nothing remained for'the court to do but to proceed with the case upon the petition.

Under the statute governing practice in civil cases, section 3545, Revised Statutes, the material allegations in the petition were to be taken as true. There was then no issue of fact for the court to try. It is true that, in ascertaining the quantum of damages that the plaintiff had sustained by reason of the loss or injury to his property, the execution of a writ of inquiry was necessary. The rule is, that when the damages are not liquidated or when the law does not fix the measure of damages a writ of inquiry must be executed by a court or jury and the damages sustained must be shown by proof. Wetzell v. Waters, 18 Mo. 396 ; Snider v. Railroad, 73 Mo. 463 .

But the claim made by the plaintiff for damages seems to have been abandoned by the plaintiff .or ignored by the court for the record shows action by the court only in respect to the penalty. The judgment is only for the penalty. The material allegation in the petition, that the defendant had omitted its statutory duty, and that the plaintiff had been injured, thereby stood under the statute as admitted by the defendant, so that the court was bound to adjudge that the plaintiff was entitled to recover all of said penalty or some part thereof. The maximum amount of the penalty being fixed by the statute there was nothing left for the court to do other than to render judgment for the penalty or for such part thereof as in its discretion it saw fit. We are unable to discover any irregularity in the proceeding detrimental to the defendant or of which he ought to complain. We think the judgment for the right party, and should be affirmed, which is ordered accordingly.

All concur.