text:
    THE STATE v. VICTOR L. RAWLINGS, Appellant.
    Division Two,
    February 14, 1911.
    1. CONSTITUTIONAL LAW: Order Houses. The title of an act, declaring it to be “an act to prohibit persons running order houses from delivering intoxicating liquors to persons having ,no license to deal in same,” and section one of the act, declaring, “It shall be unlawful for any person or persons not a licensed dramshop-keeper or by law authorized to sell liquor as a wholesaler, to order for, receive, store, keep or deliver, as the agent or otherwise, of any other person, intoxicating liquors of any kind whatsoever,” are in conflict. The title purports to affect persons running order houses only, but section 1 attempts to reach all classes of persons except dealers in intoxicating liquors.
    2. -; -: Individuals. But section 2 of the act, declaring, “No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt-the Local Option Law, any intoxicating liquors of any kind whatsoever,” and that part of the title declaring it to be “An Act ... to prohibit the keeping, storing for or delivering to another person intoxicating liquors in Local Option counties,” are not in conflict, and the said section 2 is not invalid.
    S'. -: -: Enacted at Special Session: Recommended in Message. A recommendation by the Governor in his message to the General Assembly upon its convening in extraordinary session of “effective local option laws for counties, towns and cities” is ample authority, under the Constitution, for the enactment by the Legislature of a law prohibiting the keeping, storing, or delivering for or to another person, in any - county that has adopted the Local Option Law, of intoxicating liquor.
    4. -: -: Special Law. An act which applies only to • counties which have adopted or may hereafter adopt the Local Option Law is not a special or local law.

      5 INFORMATION: Delivering Intoxicating Liquor to Another: Surplusage. -Where the statute makes it an offense to “keep, store or deliver for or to another” any intoxicating liquor, an information charging that defendant “did willfully and unlawfully order for, receive, keep, store and deliver” intoxicating liquor for another, is not bad. The words “receive” and “order for” may be rejected as surplusage, and still the information is sufficient.
    6. -: -: Local Option Not Adopted in City. Where the information charges that the Local Option Law was adopted in a city having 2500 inhabitants, but also charges that the intoxicating liquor was sold in the county and the proof does not show it was sold in the city, whether or not the law was adopted in the city has no bearing on the guilt or innocence of the defendant. It is sufficient to charge and prove that the offense was committed anywhere in the county where the Local Option Law was in force.
    7. -: -: What Constitutes the Offense. Defendant informed one Williams that he was going to order whiskey, and was asked by Williams to include in the order a half gallon for him. That was done and-when it came Williams went to defendant’s tailoring shop, and without communication with him, took away the half gallon only a few minutes after its arrival. Held, that the evidence would not warrant a conviction of storing intoxicating liquor, but justified the court in submitting to the jury the question of whether or not defendant kept or delivered intoxicating liquor to Williams.
    8. -; -; -; Ordering for and Receiving: Instruction. But since a valid information must be based on the section of the statute forbidding defendant to “keep, store or deliver for or to another person” intoxicating liquor, the instruction should not permit a conviction for ordering for or receiving intoxicating liquor for another.
    9. -: -: -: -: Evidence. But the State Bhould be permitted competent evidence to prove that defendant ordered and received intoxicating liquor for another, as tending to prove that he kept, stored or delivered to another such liquor.
    Appeal from Lawrence Circuit Court. — Hon. W. N. Evans, Special Judge.
    Reversed and remanded.

      James A. Potter for appellant; Edw. J. White of counsel.
    (1) The information is fatally defective in failing to allege that the defendant was engaged in running an “order house” or was acting as an agent for such house or in that capacity. State v. Price, 229 Mo. 670. (2) The information is fatally defective in failing to allege that the person for whom defendant delivered the liquor was not authorized by law to deal in intoxicating liquors. State v. Price, 229 Mo. 670; Laws 1907, pp. 231-232. (2) The court erred in overruling defendant’s motion to quash the information in this case, (a) The act under which defendant is being prosecuted is unconstitutional and void because it violates section 28, of article 4, of the Constitution. The body of the act nowhere refers to persons “running order houses,” but embraces persons of every class whether engaged in the order house business or not, or whether they have any connection whatever with an order house. Moreover, the title says that it shall be unlawful for a person running an order house to deliver liquor to persons having no license to deal in same, while the body of the act says that it shall be unlawful for any person who is not a dramshop keeper, or by law authorized to sell liquor, to “order for, receive, keepy store or deliver, ’ ’ as the agent of any other person, regardless of whether that other person has a license to deal in liquor. We understand that this court in the case of State v. Price, supra, held that this act did not contain more than one subject-matter. The point that we now raise, that the subject “is not clearly expressed in the title,” was not urged in the Price ease, and the court’s opinion on that point is not final, (b) Section two of the Act of 1907, before referred to, is unconstitutional for the reason that it violates section 30, of article 2, of the Missouri Constitution. The above section is as follows: “That no person shall he deprived of life, -liberty or property without due process of law.” Section two of the Act of 1907 makes it a crime to “keep, store or deliver” intoxicating liquors to another person in any “county” that has adópted local option. It must be remembered that the Legislature has previously classified local option territory in this State into cities having over twenty-five hundred inhabitants and the remainder of the counties outside of such cities. Under this section of the act of the Legislature cities are not referred to at all. That is to say, under section 2 of this act it would be no crime to keep, store or deliver intoxicating liquor for another in any city that has adopted local option. It is only a crime in a county that has adopted local option. It cannot be said that the word county includes all territory in the county, including cities of over twenty-five hundred inhabitants, for that construction would make it a crime to do an act in a city where another law says the act is legal. The second section of the act is class legislation. State v. Loomis, 115 Mo. 307; State ex rel. v. Ashbrook, 144 Mo. 375; In re Jilz, 3 Mo. App. 243. (4) The court erred in admitting evidence that defendant ordered liquor for witness Williams, because the information did not charge that defendant was engaged in running an order house, nor connected with an order house, nor that he was habitually engaged in ordering liquor for others. State v. Price, 229 Mo. 670. The court erred in admitting evidence that defendant “received” liquor for Williams. The title to the act nowhere mentions “receiving” liquors for another. The body of the act being broader than the- title on this point, the act is void as far as the crime of “receiving” liquor is concerned. (5) The court erred in giving instruction 1, at the request of the State. Under this instruction the court told the jury that if they found and believed from the evidence that the defendant did “order for, .receive, keep, store or deliver as the agent or otherwise of one Will Williams any whiskey” then they should find the defendant guilty. This instruction is wrong for the reason that it did not require the jury to find that the defendant was engaged in running an order house, or that he was the agent of any such house, or that he was habitually engaged in ordering liquors for others. State v. Price 229 Mo. 670. This instruction is wrong in that it justifies a conviction if defendant received any whiskey for Williams. The title to the act under which defendant was prosecuted nowhere indicates that such an act as receiving liquor shall constitute a crime. Laws 1907, pp. 231-232. This instruction is wrong for the reason that it justifies a conviction of defendant on the grounds that he kept or stored whiskey for Williams. ‘There was no evidence upon which to base such an instruction. The only evidence in the ease upon which such an instruction could be based was that the whiskey had been.in the plaee^of business “not over five minutes.” The words to “keep and to store” have a well-defined meaning in the law. These words always imply the idea of continuity or habit and do not refer to the mere temporary deposit of a thing. Mosely v. State, 74 G-a. 404; Renshaw v. Mo. St. Mutual, 103 Mo. 595; O’Neill v. Insurance Co., 3 N. T. 122; Insurance Co. v. Lawrence, 61 Ky. 9; Eubanks v. State, 1? Ala. 181; Commonwealth v. Palmer, 134 Mass. 537; People v. Rice, 103 Mich. 350; State v. Miller, 36 Atl. 795; Commonwealth v. Patterson, 338 Mass. 495; Springfield Ins. Co. v. Wade, 58 L. R. A. 714; Mears v. Ins. Co., 92 Pa. St. 15. The instruction is wrong in that it fails to require the jury to find that defendant delivered the whiskey to a person who was not authorized by law to deal in whiskey. State v. Price, 229 Mo. 670.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) Appellant’s first contention, that the act under which he is prosecuted is obnoxious to section 28 of article 4 of the State Constitution, in that it contains more than one subject, and that the same is not clearly expressed in the title, has but recently received the careful attention of this court, and has been ruled adversely to his claims. State v. Price, 229 Mo. 670. It is a fact within common knowledge that there is perhaps no law whose enforcement has been more strenuously and cunningly resisted by tricks, schemes and covers, than the law looking towards the regulation of the liquor traffic, a business inherently illegal and continued only through sufferance. “For ways that are dark and tricks that are vain, the Chinee is an unsophisticated heathen compared to the bootlegger.” State v. Melton, 130 Mo. App. 266. Many means of regulation, among them local option and licensed dram-shops with restricted privileges, have been adopted, but, regardless of the peculiar and particular method» applied, they have all dealt with one subject — intoxicating liquor — and have sought but one end, the regulation of the traffic and the subsequent suppression of a •conceded evil. It is equally well known, and as to this the Legislature was presumably no more ignorant than the rest of mankind, that prior to the enactment of the statute here involved, the ends of regulation in both local option and dramshop communities were frequently defeated by designing persons who resorted to the practice- of taking orders as the agent of the purchaser, and then delivering same to his alleged principal, thus hiding the vendor and concealing himself behind the gloss of agency. This practice could not be successfully prevented without amendments of the nature now under discussion. State v. Winfield, 115 Mo. 428. As the law stood before the present statute was passed it was a question of fact as to whether the person taking the order was- the agent of the vendor or vendee, and this led to much uncertainty and many abuses, substantially the same.facts sometimes affording the basis of a . conviction in oiie case and failing in another. State v. Melton, 130 Mo. App. 265; State v. Winfield, 115 Mo. 428. In view of the history of the times and the legal situation at the time of the passage of this act, there is nothing strange in the Legislature putting to rest all such uncertainties and declaring as a matter of law, that the act of ordering for o,r delivering to another; regardless of all questions of agency, any intoxicating liquor in any community, whether under dramshop- or local option regulation, should constitute an offense. The title of the act in question clearly expresses such a purpose. There is nothing misleading by the use of the term “order house” in the first portion of the title, and the use of the term “person” instead of “order house” in the body of the act. The term “order house,” as there used, does not- apply merely to some particular, indefinable kind of an “order house,” but to any person or persons who receive orders and send them to persons who fill them, thus carrying on what can be properly termed an order house business. That the title fully satisfies the constitutional provision with reference to the subject being clearly expressed therein, is manifest from other decisions of this court. State v. Doering, 194 Mo. 409; Lynch v. Murphy, 119 Mo. 171; Cox v. Railroad, 174 Mo. 63; O’Connor v. Transit Co., 198 Mo. 637; State ex rel. v. Mead, 71 Mo. 268. (2) (a) Appellant’s second and third challenges on constitutional grounds go only to section 2 of the act, which is as follows: “No person shall'keep, store or deliver for or to another person, in any county that has . adopted, or may hereafter, adopt, the local option law, any intoxicating liquors of any kind whatever. ” It is insisted that merely because this section uses the term “in the county”'without the use of the additional words, “or city, as the case may be,” it is a violation of section 30 of article 2, and sections 53 and 54 of article 4, of the State Constitution. In this connection it is said, that, for the purpose of local option laws, the State has been divided and. classified, into two groups; first, counties; second, cities containing 2,500 or more inhabitants, and that said section 2 of the act is special in that it applies only to counties. Even if -appellant’s contention in this respect were sound it would avail him nothing since section 1 of the act, which is not open to this alleged objection, is broad enough to, and does, apply to local option counties the same as dramshop counties, and fully covers the offense charged in the information. State v. Price, supra. The invalidity of section 2, if established, would not vitiate section 1. Shiveley v. Langford, 174 Mo. 549; Dent v. Railroad, 83 Mo. 49©; State v. Railroad, 219 Mo. 169. This court will not pass upon the constitutionality of a statute unless the same is necessarily involved, and, since a decision as to the validity of section 2 is not necessary to the final disposition of this case, it will serve no purpose to consider the question presented. State v. Grossman, 214 Mo. 233; Watson Seminary v: County Court, 149 Mo. 72; State v. Railroad, 219 Mo. 169; State v. Seebold, 192 Mo. 431. It is a general .rule of criminal procedure that if one is indicted under one section of the statute, but the evidence shows that he is guilty of the violation of another section, he may be convicted of the one of which the evidence shows him guilty, provided the indictment is broad enough to include the offense within its allegations. State v. Walker, 221 Mo. NO; State v. Quiun, 170 Mo. 182; State v. Heckler, 81 Mo. 417. (b) Prom what is heretofore said we do not mean to be understood as in any way conceding the invalidity of section 2 of this act, since, in our opinion, appellant’s insistence in this respect is without merit. In the first place the Legislature has never undertaken to make separate classes of counties and cities for general local option purposes, but only for the purpose of the adoption of the law. After the adoption each provision of the statute operates upon the one in a manner identical with the other. Every statutory provision that is applicable to one is equally applicable to the other, and there is an utter absence of any legislative intent to create a general classification for the purposes of legislation. A violation of this law in a city of 2500 inhabitants or more, is. a violation, not only of the city ordinance, but also of the State law, and can be so prosecuted. Each and every city located in this State, except the city of St. Louis, is “in a county,” and of this the Legislature, in its enactments, takes notice. Even with the city of St. Louis, the Legislature has declared that wherever it uses the term “county” it must be understood as including that city, unless such construction be inconsistent with its evident intention. R. S. 1909, sec. 8057. It is apparent from these conditions that the Legislature has deliberately brought about a situation which avoids the necessity and inconvenience of referring any more specifically than by the term “county” to all subdivisions of the State. A city of 2500' inhabitants or more, is as much a part and parcel of and “in a county” as any city or town of fewer inhabitants, and it has been so held by the Court of Appeals in dealing with a local option question which bears some relation to the one under discussion. State ex rel. v. Robinson, 129 Mo. App. 147. The construction that the term “county,” as here used, applies to and includes all places in the county, among them cities of 2500 inhabitants or more, is perfectly consistent and satisfies the language and. preserves the spirit of the statutes. A legislative intent to violate the Constitution can never be assumed if the language of the statute can be satisfied by a contrary construction. General terms should be so limited,. and restricted terms so expanded, in their application as not to render the whole statute invalid as being in conflict with the organic law. State v. Moody, 202 Mo. 127. (c) While in our opinion the second section should be construed so as to apply to cities as well as to all other portions of a county, yet, if the court should adopt appellant’s view that because of another classification into cities and counties for local option purposes, and because only counties are specifically mentioned in this section, the cities are excluded, then we must not stop there, but follow such theory to its logical conclusion. Such a theory can be bottomed only upon the premise that the classification into cities and towns for the purposes of legislation is a proper and warranted one. If that be the case, then the Legislature is warranted in recognizing such classification and in enacting laws to cover the one class without making such laws applicable to the other, since it is only necessary in making a law general to make it applicable to all of a single legitimate class. State ex rel. v. Wash-burn, 167 Mo. 680j Powell v. Sherwood, 162 Mo. 105. If, as appellant concedes, the differences in counties and cities are sufficient to servé as a basis of classification, this very fact, and the power to so classify, necessarily embraces the right to impose upon the one a condition not required of the other, since the lesser is necessarily contained in the greater power. Appellant’s inconsistency consists in conceding, on the one hand, the power to classify counties and cities for the purpose of legislation and then from this concession to argue that the power does not exist to subject such classes to different conditions. Trust Co. v. Campbell, 173 U. S. 84.
   BROWN, J.

The defendant prosecutes this appeal from a judgment imposing upon him a fine of $300, for violating Laws of 1907, page 232 (now sections 7226 to 7229, R. S. 1909), regulating the keeping, storing and delivery of intoxicating liquors in counties having adopted the Local Option Law.

The evidence shows that the defendant was running a tailor shop in the city of Mt. Vernon, in Lawrence county, on the first day of December, 1909', and desiring some intoxicating liquor, went to a butcher shop where one Will Williams was employed and asked Williams for the address of certain persons in Springfield, Missouri, who dealt in whiskey. "Williams could not furnish the desired address, whereupon the defendant obtained it from another party, went back to the butcher shop and informed "Williams that he had procured the address and was going to make the order. Williams then requested defendant to include in the order a half gallon of whiskey for him. Defendant ordered the whiskey which was in a few days delivered at his tailor shop by the expressman. Within a few minutes after the liquor reached defendant’s shop, Williams went there and apparently without communicating with defendant, picked up and carried away his half gallon of whiskey. Defendant received no commission or profit from the transaction.

The defendant makes a vigorous assault upon the constitutionality of the law, the sufficiency of the information, on the instructions given by the court, and its rulings upon the evidence introduced by the State.

For a proper understanding of the constitutional questions involved and the sufficiency of the information, we insert below the full title of this act and the first two sections of the act itself:

“An Act to prohibit persons running^ order houses from delivering intoxicating liquors to persons having no license to deal in same, and to prohibit the keeping, storing for, or delivering to cwiother person intoxicating liquprs in local option counties, and providing penalties for the violations thereof.

“Section 1. It shall be unlawful for any person or persons not a licensed dramshop-keeper or by law authorized to sell liquor as a wholesaler, to order for, receive, store, keep or deliver, as the agent or otherwise, of any other'person, intoxicating liquors of any kind.
‘ ‘ Section 2. No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.”

The information, omitting caption and affidavit, is as follows:

“Comes now Archie L. Hilprit, prosecuting attorney within and for Lawrence county, Missouri, and acting herein under his oath of office and upon knowledge, information and belief, informs the court that on or about the 11th day of November, 1907, the Act of the Legislature of the State of Missouri approved April 5th, 1887, known as the Local Option Law, was duly adopted in the city of Aurora, Lawrence county, Missouri, said city of Aurora being then and there a city of more than two thousand five hundred inhabitants; that thereafterwards, to-wit, on or about the 13th day of February, 1909, the said act of the Legislature of the State of Missouri, approved April 5th, 1887, known as the Local Option Law, was duly adopted in Lawrence county, Missouri, outside of the corporate limits of said city of Aurora, Missouri, said city of Aurora, Missouri, being then and there a city of more than two thousand five hundred inhabitants; that at all the times hereinafter referred to said law was in full force and effect in Lawrence county, Missouri; that thereafterwards, to-wit, on or about the 1st day of December, 1909, while said law was in 'full force and effect in said county, one Victor L. Rawlings, in the said county of Lawrence in the State of Missouri, did then and there willfully and unlawfully order for, receive, keep, store and deliver distilled, fermented and intoxicating liquors, to-wit, one-half gallon of whiskey for one Will Williams, the said Victor L. Rawlings not toeing then and there a licensed dramshop-keeper or by law authorized to sell liquors as a wholesaler, and the said whiskey not being for the use of the said Victor E. Rawlings or for the use of his family; against the peace and dignity of the State.”

A comparison of the foregoing information with the law clearly demonstrates that the information is bottomed on section 2 supra, because it alleges that the crime was committed in' a county which had adopted local option. However, the information goes farther and charges the defendant with ordering and receiving intoxicating liquor for the witness Will Williams, and as the acts last mentioned are only prohibited by section 1, supra, we are brought first to the consideration of the defendant’s contention that said section 1 is unconstitutional because the title of the act does not clearly express the matters contained in said section, as required by section 28 of article 4 of our Constitution.

That part of the title which was intended to cover-section 1, supra, is as follows: “An act to. prohibit persons running order houses from delivering intoxicating liquors to persons having no license to deal in same.”

■ Section 1 contains no recital whatever about order houses or parties who may be running same, but does purport to prohibit certain persons from ordering' or receiving liquors for another.

OPINION.

It is clear to our minds that the subject of delivering intoxicating liquors is germane to the subject of ordering and receiving such liquors, but this is not the only test which we are required to apply to the law under consideration. Is the subject of ordering and receiving liquors by an individual clearly expressed in a title which only purports to prohibit persons running order houses from delivering such liquors? Is not this title misleading? Will a title which purports to prohibit- a certain act by a certain class of persons support and carry validity to a law which embraces additional acts committed by persons not within the class mentioned in such title?

We have examined the authorities cited by the learned Attorney-General, but they embrace only cases wherein laws were attacked because their titles were alleged to be too general. They are not applicable ta the facts in this case. If the title to the act under consideration had been general, for example, if it had' simply read, “An act concerning intoxicating liquors/*' then it would have supported most any kind of a law-affecting ,the purchase, sale, ordering or delivery of such liquors, but in this ease, the title descends into details and attempts to point out a particular class of persons to which that law is intended to apply and the particular acts prohibited, and therefore cannot support a law which is levelled against a wholly different class of persons and prohibits acts not mentioned in such title. [State v. Coffee and Tea Company, 171 Mo. 634; State v. Fulks, 207 Mo. 26; St. Louis v. Workman, 213 Mo. 131; State v. Persinger, 76 Mo. 346.]

In the case of State v. Great Western Coffee and Tea Company, supra, it was held that the title to an act which was levelled only against the manufacturers of certain kinds of baking powder, would not support a statute which also prohibited persons from selling such-, baking powder.

In the case of City of St. Louis v. Workman, supra, the title of a bill only purported to “create the-office of State Dairy Commissioner, and to define his term of office, duties and powers/’ and it was held' this title could not carry validity to a section of the-same bill which attempted to prohibit individuals from, selling impure dairy products.

The doctrine herein announced is supported by a great number of cases, in our own State as well as. other jurisdictions, but we will not encumber this opinion with all of them.

We have examined the original bill as it was introduced in the General Assembly, and find that section 1 appeared therein as follows: “It shall be unlawful for any person to keep an order house where orders for intoxicating liquors are given or received from persons who have no license to deal in such liquors.”.

This section, by an amendment during its passage through the General Assembly, became an entirely different law from what its author intended it should be, and instead of reaching order houses, was made to apply only to individuals who are not dealing in liquors.

We take judicial notice of the fact that the members of the General Assembly on account of the- great number of bills which they are called upon to consider and the short space of time in which they must perform their important duties, are forced to rely in a large measure upon the titles to the several laws which they enact, and where the title to a law like the one we are now considering is clearly misleading, we are forced to declare it unconstitutional.

The doctrine of expressio unius est exclusio alterius, to a limited extent, applies to the titles to legislative acts, when as in this case, they descend into details and attempt to prohibit particular acts by a particular class of persons, and' we therefore hold, that section 1, supra, is unconstitutional, because it attempts to reach all classes of persons except dealers in intoxicating liquors, while its title purports only to affect persons running order houses. We are aware that in the case of State v. Price, 229 Mo. 670, this court intimated that.section 1 of the Act of 1907 (now under consideration), was constitutional, but the indictment in that case was bottomed on section 2 of that act and charged the defendant only with keeping, storing and delivering intoxicating liqnor, and the constitutionality of section 1 was not necessarily involved in the decision of that ease.

However, while defendant’s objection to the title of the bill must be sustained as to section 1 of the act (now Sec. 7226, R. S. 1909'), said objection is wholly untenable when applied to section 2 of the same- act (now Sec. 7227, R. S. 1909), because the language of said section 2 follows precisely the second subdivision of the title to the bill, and is safely anchored in both the letter and spirit of section 28, article 4, of -the- Constitution.

Defendant’s second assault on the constitutionality of the law under consideration is based upon the fact that said law was passed at an extra session of the Legislature in the year 1907, and that the Governor’s message convening the General Assembly in extraordinary session in that year does not embrace the subject of keeping, storing and delivering intoxicating liquors in local option counties, hence the act violates section 9 of article 5 of the Constitution, requiring the Governor in his message to state specifically each matter upon which he deems it necessary for such General Assembly to take action. This point might be very important if section 9 of article 5 of our Constitution stood alone, but we find it very materially modified by section 55 of article 4, which contains the further provision: “The General Assembly shall have no power, when convened in extra session by the Governor, to act upon subjects other than those specifically designated in the proclamation by which the session is called, or recommended by special message to its consideration by the Governor after it shall have been convened.”

By this last named- section of our organic law, undoubted power is conferred to enact any laws which the Governor may by special message recommend to the General Assembly after it has been convened in extraordinary session. By referring to the Senate and House Journal of the extra session in 1907, at page 11, we find that the Governor in his first message to that body, recommended that, “Effective local option laws for counties, towns and cities should be enacted.”

The foregoing clause of the Governor’s message afforded ample warrant to the General Assembly at said extra session to enact section 2, supra, for the purpose of strengthening and making more'effective what is known as the Local Option Law, adopted in many counties of this State, to prohibit the sale of intoxicating liquors. [Wells v. Railroad, 110 Mo. l. c. 296-297.]

Therefore', defendant’s second assault on the constitutionality of the law under consideration must be overruled.

Defendant’s third assault upon the constitutionality of section 2 of the Act of 1907, supra, is that it is class legislation, in that it divides the counties of the State into artificial classes, to-wit, those which have adopted local option, and those which have not; and is therefore violative of section 53 of article 4 of the Constitution, prohibiting the enactment of special laws “regulating the affairs of counties, cities, townships, wards or school districts.”

We are aware that the Legislature cannot arbitrarily divide any natural class of persons or municipal bodies into artificial classes and enact laws which apply to only one of such artificial classes. For instance, the Legislature could not enact a law which would make it possible for all counties having 25,000 inhabitants or more, on the north side of the Missouri river, ..to adopt township organization, and prohibit counties with the same population on the south side of said river from enjoying the same privilege. But we are convinced that when the law permits the citizens of any locality to convert themselves into an artificial class by adopting laws not in force over the whole State, then they may be legislate^ for or against by a general law which will only apply to the artificial class to which they have voluntarily assigned themselves. [Rutherford v. Heddens, 82 Mo. 388; Kansas City v. Stegmiller, 151 Mo. 189.] For instance, our general law permits all cities and towns having 500 and less than 3000 inhabitants to organize themselves into cities of the fourth class, but such towns or cities are not bound to avail themselves of this privilege, and it is a well known fact that there are many towns in this State with more than 500 inhabitants which have not been incorporated in any manner. Yet it is perfectly competent for the General Assembly to enact laws which will apply only to cities of the fourth class; and it would not be seriously contended that such a law would apply to any town which possessed the necessary population to become a city of the fourth class, but which had neglected to incorporate itself as. such. We therefore conclude that without regard to the population which a county may possess, it may legally convert itself into an artificial class by adopting the Local Option Law; and thereafter it is entirely competent for the Legislature by a general law to regulate the conduct of its citizens by an act which will not apply to those parts of the State where dramshops are permitted. Hence, we must overrule defendant’s third and last point of attack on the constitutionality of section 2 of the Act of 1907 now under consideration.

Defendant complains that this information is clearly bottomed on section 2 of the Act of 1907, but charges the defendant with committing certain acts not covered by that section, to-wit, the ordering and receiving of intoxicating liquors. In this contention, defendant is correct, but conceding that the information should not have contained the words “order for” or “receive,” it may yet be valid through the saving grace of our criminal statute of jeofails (Sec. 5115, R. S. 1909). This section provides that no information shall be deemed invalid “for any surplusage or repugnant allegation.” Hence we can treat the words “order for” and “receive” in the information as surplusage; and it will still be sufficient. [State v. Meyers, 99 Mo. 107; State v. Currier, 225 Mo. l. c. 650.]

Another assault is made on this information because it charges that the Local Option Law was adopted in the city of Aurora, in Lawrence county, whereas it is alleged that said law was not lawfully adopted in that city. Be that as it may, the information does not charge that the offense was committed in the city of Aurora, neither does the evidence show it to have been committed in that city; consequently whether or not the Local Option Law has been duly adopted in Aurora, a city of 2500 inhabitants, has no bearing on the guilt or innocence of the defendant.

In our opinion where an information — as in this case — charges that the offense was committed in a county which had adopted local option, it is sufficient for the State to prove that the offense was committed at any place in that county where the Local Option Law was in force; and proof that the offense was committed in a city of 2500 inhabitants would be no defense, if the evidence discloses that such city had adopted the Local Option Law.

The evidence in this record would not warrant a conviction for storing intoxicating liquors. A possession lasting only five minutes would not sustain the charge of storing, but the evidence would justify the court in submitting to the jury the question of whether or not the defendant kept or delivered intoxicating liquors to the witness "Will Williams.

Defendant’s resourceful attorney attacks the information oh other minor details which it is not necessary to discuss in this opinion, but as we have decided to reverse the judgment, if the State desires to retry the case, we suggest that the information be amended so as to make it conform to the provisions of section 2 supra, charging the defendant only with the acts of keeping, storing for and delivering to the witness Will Williams, etc.

The defendant also complains that the trial court committed error in giving to the. jury of it's own motion instruction numbered 1, which authorized a conviction if the jury found that the defendant had ordered for or received intoxicating liquor as the agent of the witness Will Williams. We find that this assignment of error is well founded. The State having instituted this prosecution under the provisions of section 2, supra, which do not contain the words, “order for or receive,” was not entitled to a conviction on proving that those acts were committed, but if convicted in this case, defendant must be convicted of keeping, storing- or delivering intoxicating liquors.

The defendant also complains that the trial court committed error in admitting, over his objection, evidence that he ordered the liquor which he is charged with delivering. To this objection we will say that if the State -elects to amend its information in conformity to the laws as herein announced, upon a retrial of the cause it should be allowed to introduce any competent evidence it may have to prove that defendant ordered or received the intoxicating liquor for the witness Will Williams, as tending to prove that he also kept, stored for or delivered the same to said witness, as prohibited by law.

For the error of the trial court in giving to the jury an instruction which authorized a conviction for the acts of receiving and ordering intoxicating liquors, its judgment is reversed and the cause remanded.

Kennish, P. J., and Ferriss, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    THE STATE v. H. B. MUDD, Appellant.
    Division Two,
    February 14, 1911.
    1. RECOGNIZANCE: Variance: Larceny: Burglary. Where the information charged the defendant with larceny from a dwelling-house and the recognizance was conditioned that he appear to answer an information charging burglary, there is no such variance-as will defeat a suit on the recognizance. The variance is an irregularity, and under the statute (Sec. 5019, R. S. 1909) that alone is immaterial.
    2. -: -: Precluded by Admission in Answer. -Where the scire facias recites that appellant entered into the recognizance .as surety “for the appearance of the said defendant on the first day of the next term of said court, then and thereto answer and abide the order and judgment of said court, touching the matter of said information for larceny from a dwelling house,” the surety by his answer in which he “admits-that he entered into the recognizance for the appearance of said defendant in this court, as alleged in said scire facias,” precludes himself from contending that there is a material variance between the information and recognizance.
    3. '-:-: Surrender of Principal: Discharge of Surety. Where the surety informed the sheriff that he believed defendant was going to run away, and that he wanted to be released from his bail bond, and requested the sheriff to come and get. him, and the sheriff did so, and lodged him in jail, and after a confinement there of three months he escaped, the surety is released from liability on the recognizance. Nor is he to be held liable because he did not secure a certified copy of the recognizance and deliver the same to the sheriff at the time-he delivered the defendant into his hands, nor because he did not take a written receipt from the sheriff evidencing such surrender. The statute prescribing these things affords a. means by which the surety can force the sheriff to relieve him of the burden of the recognizance, but they are not mandatory in the sense that they preclude an actual surrender-in good faith from being considered and held to neutralize the bond.
    Appeal from Monroe Circuit Court. — Hon. David H, Eby, Judge.
    Reversed.

      Ragland & McAllister for appellant.
    (1) The recognizance offered in evidence was conditioned that' defendant Lee appear and answer an information charging him with the crime of burglary. If the scire facias fulfilled the function- of a petition or first pleading its allegations would not be sustained by the proof. The variance would be fatal and the judgment could not stand. But it is said that a scire facias is not the commencement of a civil action, but simply an incident to a proceeding already in court. State v. Peyton, 32 Mo. App. 522. It need not even state the crime with which defendant is- charged. State v. Heed, 62 Mo. 559. That it is sufficient if the record as a whole supports the judgment. Looking then to the entire records and files of the court, it affirmatively appears that the State is not entitled to- execution. The record shows that the prosecuting attorney obtained leave of court to file an information charging defendant Lee with the crime of burglary; that thereupon he filed an information which shows on its face that it charges the defendant with larceny from a dwelling-house, and does not charge burglary at all. The defendant was arraigned and pleaded not. guilty to the charge contained in the information. As the record -does not show the filing of any other information against Lee, it must- be concluded that he pleaded to the information charging larceny. Afterward Lee, with appellant as his surety, entered into a recognizance conditioned that he appear on a day named to answer to the charge of burglary. The record shows that no .-such charge ha,s ever been preferred against him, and his appearance therefore on the date named could not have been lawfully required. The variance between the information and the recognizance is material and the surety is not bound. Duke v. State, 35 Tex. 424; Draughan v. State, 35 Tex. Crim. App. 51. (2) Appellant’s surrender of his principal was valid at common law and completely exonerated him. The trial court should, therefore', have given the declaration of law requested by him. In re Bauer, 112 Mo. 235; Taylor v. Tainter, 16 Wall. (U. S.) 371; Reese v. United States, 91 Wall. (U. S.) 15. Surrender discharges bail. Walton v. People, 28 111. App. 645; Sternberg v. State, 42 Ark. 130. Sections 2550-2552, R. S. 1899, do not abrogate the common law respecting the right of bail tó arrest his principal and surrender him in his own discharge. The common law is not repealed if there is no repugnancy between it and the statute, or if it does not appear that the Legislature intended to cover the whole subject. 8 Cyc. 376. There are no words in the statute negativing or limiting the right of bail to arrest and surrender his principal in any other manner than that prescribed by the statute itself. In re'Banel, 112 Mo. 235. Before the passage of the statute, if bail arrested the principal and surrendered him by delivering him to the proper officer, and the surrender was accepted by such officer and the principal taken into custody by him, the bail was exonerated. But for the bail to be discharged the officer must accept the surrender. Under the statute if the bail deliver a certified copy of the recognizance to the sheriff with the principal, the sheriff must accept the surrender, etc. This statutory provision, compelling the sheriff to accept a surrender if certain formalities are complied with, does not take away from bail any common law'right, but is in addition thereto. Walton v. People, 28 111: App. 645; Sternberg v. State, 42 Ark. 130. In the case at bar the sheriff did not have to accept the surrender of the defendant Lee, when tendered him by appellant, because not accompanied by a certified copy of the recognizance, but having accepted the surrender it at once became valid and effectual. Walton v. People, supra.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) (a) The scire facias explicitly charged that the recognizance on which judgment was had against appellant was taken to insure the appearance of appellant to answer the charge of larceny from a dwelling-house. Appellant in his answer “admits that he entered into the recognizance for the appearance of defendant, Harpy Lee, in this court, as alleged in said scire facias,” and sets up, also, that “he surrendered and delivered the person of the said defendant, Harry Lee, to F. M. Nolen, sheriff of Monroe county, in Monroe county, Missouri, and that the said sheriff then and there accepted such surrender and took the person of the said Harry Lee into his possession and custody under the charge and information in this cause referred to in said scire facias.” We think that, having in his answer expressly admitted that the charge to which defendant was bound to answer was one for larceny from a dwelling-house, a different position cannot now be taken by appellant in .this court. This proceeding “partakes largely of the nature of a civil proceeding under our code, and should be governed by the same rules.” State v. Morgan, 124 Mo. 475. Among those, “same rules of proceeding” is the one that a party can not make one case by his answer, try it below, and then secure a reversal by advancing a new theory in this court. The allegation of the scire facias and the admission in the answer settled all question as to the charge, etc. The rule mentioned applies to a case of this kind. 5 Oyc. Law and P-roc. 155, note 55; State v. Millsaps, 69 Mo. 362. (b) An error of the kind assumed (in the face of the allegation of the scire facias and the admissions of the answers) to have been committed in taking the recognizance, would not avail appellant on his a,ppeal, even had he not answered as he did. R. S. 1909, sec. 5019; State v. Epstein, 186 Mo. 99;. State v. Randolph, 22 Mo. 474; State v. Abel, 170 Mo. 66; State v. Livingston, 117 Mo. 628; State v. Morgan, 124 Mo. 478; State v. Austin, 141 Mo. 487; State v. Millsaps, 69 Mo. 362. The essence of appellant’s obligation was that Lee would appear in a certain court on a given day, R. S. 1899', sec. 2800. This Lee did not do. (2) The other contention of appellant is that he surrendered Lee to' the sheriff and thereby was fully exempt from the penalty of his bond. There is no pretense made that appellant secured a certified copy of the recognizance and delivered it to the sheriff with the principal, or that the sheriff acknowledged the acceptance of the principal in writing, as required by Secs. 5130, 5132, R. S. 1909. Appellant did request the sheriff to come to Monroe City and get Lee, and had the city marshal take Lee into custody. The marshal turned Lee over to the sheriff, who took him to Paris and put him in the county jail, whence he escaped in March, before he was bound, according to the recognizance, to appear in April. It is not contended that the statutory provisions as to surrender of his principal were complied with by appellant. It is, however, argued that those provisions are not intended to exclude other methods of surrender by which the principal is actually landed in the hands of the sheriff. The difficulty in the way of sustaining this contention is that this court has quite properly held: “We are satisfied that the same rules as to bonds which may be enforced as common law obligations between individuals do not apply to bonds executed, to the State for the appearance of persons charged with criminal offenses, for in criminal cases they are purely statutory, while as between individuals they are not.” State ex rel. v. Fraser, 165 Mo. 261. The language of section 5132, R. S. 1909, prescribing the method of surrender, is mandatory in character. “The bail must deliver a certified copy of the recognizance to the sheriff with the principal, and the sheriff must accept the surrender of the principal, and acknowledge snch acceptance in writing.” Neither of these things was done. It cannot be questioned that the State has the right to fix, and has fixed, by statute, the method by which her agent (165 Mo. 259J, the sheriff, can accept a surrender in snch fashion as to bind the State and release sureties on bonds and recognizances- in criminal cases. In this respect “the sheriff has his duties prescribed by law; his powers are defined by law; he cannot transcend them, and if he does his act is entirely void.” (165 Mo. 259.) The statute having prescribed explicitly the method of surrender, and the whole matter being purely statutory, no other surrender will bind the State. State v. Tieman, 39 la. 476; Roberts v. State, 4 Tex. App. 130; State v. McMiehael, 50 La. Ann. 431; State v. Miller, 109 La. 27.
   KENNISH, P. J.

This is an appeal from a final judgment upon a forfeited recognizance.

At the December term, 1908, of the Monroe County Circuit Court, the prosecuting attorney of said county filed in said circuit court an information charging one Harry Lee with larceny from a dwelling-house, and at the same term said Lee entered into a recognizance in the sum of five hundred dollars, with appellant as surety, conditioned that he would be and appear in said court ‘ ‘ on the 29th day of December, 1908, and on each and every day of said term thereafter, and upon each and every day of each succeeding term of this court until this cause is finally disposed of, to answer an information charging him with the crime of burglary, filed against ‘him in this court, . . . and not depart without leave, ’ ’ etc.

At the April term, 1909, of said court, the cause coming on for trial, defendant Lee failed to appear, whereupon the recognizance, upon application of the prosecuting attorney, was declared forfeited, and sci.re facias issued. The scire facias recited, among other things, that the information charged larceny from a dwelling-house, and that the recognizance had been entered into by the appellant as surety “for the appearance of the said Harry Lee on the first day of the (then) next term of said court, and then and there answer and abide the order and judgment of said court touching the matter of said information for larceny from a dwelling-house,” etc.

For answer to the scire facias, appellant “admits that he entered into the recognizance for the appearance of defendant, Harry Lee, in this court, as alleged in said scire facias, but defendant denies each and every other statement and allegation in said scire facias made and contained. ’ ’ The answer further sets up that appellant, prior to the forfeiture, surrendered Lee to the sheriff of Monroe county, and that the sheriff “accepted such surrender and took the person of the said Harry Lee into his possession and custody, under the charge and information in this cause and referred to in said scire facias.”

The State, through its counsel, filed reply, denying each and every allegation in the answer contained.

It appears from the evidence that on or about January 1, 1909, the appellant, H. B. Mudd, who lived at Monroe City, telephoned to the sheriff of Monroe county, at Paris, the county seat, stating that he was afraid Harry Lee was going to run away, and requesting the sheriff to come to Monroe City and get Lee. He further stated to the sheriff that he would pay the expense of the trip, also that he wanted to get off Lee’s bail bond. The sheriff promised to come as requested, and did so. In the meantime the appellant caused Lee to be arrested by the marshal of Monroe City, and the marshal delivered him to the sheriff upon the latter’s arrival from Paris. Lee was taken to Paris by the sheriff and placed in the county jail, whence he after-wards, on March 27,. 1909, made his escape, and failed to appear in court when the cause wherein he was charged by information with larceny from a dwelling-house was regularly called for trial'. Appellant did not secure a certified copy of the recognizance and deliver the same to the sheriff at the time he delivered the person of defendant Lee into his custody, nor did he take a written receipt from the sheriff evidencing such surrender, but the sheriff understood that the appellant delivered the person of the defendant to him as and for a surrender by him as bail.

The court rendered judgment for the State, from which judgment, after timely motions for new trial and in arrest had been filed and overruled, an appeal was taken to this court.

The first contention of the appellant is that as the information charged Harry Lee with larceny from a dwelling-house, while his recognizance was conditioned that he appear to answer an information charging burglary, this variance between the information and the recognizance was material and fatal, the surety was not bound, and the motion in arrest of judgment should have been sustained.

Section 2800, Revised Statutes 1899 (see. 5019, R. S. 1909), forbids that the proceeding upon this recognizance shall be defeated, or the judgment prevented or arrested, on account of any defect of form, omission of recital, condition of undertaking therein, or of any other irregularity, so long as it is made to appear from the whole record or proceeding that the defendant was legally in custody, charged' with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or' magistrate at a term or time specified for trial.

An examination of this broad statute makes it quite clear that the variance between the information and the recognizance as to the crime charged is immaterial in this proceeding, and avails nothing to the appellant. The variance can well be regarded as an irregularity, and counts for nothing, it being “made to appear from the whole record or proceeding that the defendant was legally in custody, charged.with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance,” from which recognizance it is ascertainable “that the surety undertook that the defendant should appear before a court ... at a term or time specified for trial. ’’

In State v. Randolph, 22 Mo. 474, Judge Leonard announced the rule, which has since obtained in this State, to be that “although a recognizance can only be taken to secure the performance of some act that the law allows to be secured in that way, we do not deem it essential to the validity of the recognizance that it should specify on its face the specific charge that the party is to answer to.” In State v. Millsaps, 69 Mo. 359, it was held that where the recognizance named the offense as larceny and the scire facias as petit larceny, this was no substantial variance. Although the offense charged in the information was not the same as that named in the recognizance, this did not entitle the defendant, Harry Lee, to his discharge as a matter of course, or excuse the surety on his recognizance for his non-appearance, the condition of the recognizance being’ such that it not only required the appearance of the accused to answer the information, but also “not to depart without leave of court.” [State v. Poston, 63 Mo. 521; State v. Boehm, 184 Mo. 201.] As said by Judge Gantt in State v. Epstein, 186 Mo. l. c. 101: “These bail bonds are allowed in the interest of defendants that they may be free .until they are tried and either convicted or acquitted. It is not the purpose to permit defendants to enter into them to escape trial and punishment and then allow the sureties to defeat their solemn obligations after the defendants have escaped.”

We further think that the appellant’s answer to the scire facias precludes him from raising the question of variance' in this court. In his answer he “admits that he entered into the recognizance for the appearance of the defendant, Harry Lee, in this court, as alleged in said scire facias,” and the scire facias recites that appellant entered into the recognizance as surety “for the appearance of the said Harry Lee on the first day of the (then) next term of said court, and then and there answer and abide the order and judgment of said court touching the matter of said information for larceny from a dwelling-house. ’ ’ In State v. Morgan, 124 Mo. l. c. 475, this court said: “While the proceeding on a scire facias in a case of this kind is a mere continuance of an existing proceeding to enforce the collection of a debt confessed, it partakes largely of the nature of a civil proceeding under our code, and should be governed by the same rules of procedure.” One of these rules is that a party cannot make one case by his answer, try it below, and then secure a reversal by advancing a new theory in this court. In a proceeding of this kind “it is a general rule that the court will not, on appeal, consider for the first time objections, defenses or questions which should have been raised below.” [35 Cyc. 1155, and cases cited under note 55.]

A further contention of appellant is that as he had surrendered his principal to the sheriff and the latter had received him into his custody and imprisoned him in the county jail where he remained for a period of about three months and until his escape therefrom, appellant was thereby discharged from further liability on the bond. On the other hand the State, while admitting the facts, contends that as the surety did not deliver a certified copy of the recognizance to the sheriff with the principal, and as the sheriff did not acknowledge the receipt of the principal in writing, as prescribed by the statute, the alleged surrender constituted no defense to the scire facias.

Upon the propositions thus advanced the decisions of the courts are not in accord and numerous authorities have been cited in the briefs of counsel as. supporting their respective contentions.

The statutes providing for the surrender of the principal by the surety and bearing upon the facts of' this case are sections 5130 and 5132 of the Revised. Statutes of 1909. They are as follows:

“Sec. 5130. When a bail desires to surrender his-principal, he may procure a copy of the recognizance-from the clerk, by virtue of which the bail, or any person authorized by him, may take the principal in any county within this State.

‘‘ Sec. 5132. The bail must' deliver a certified copy of the recognizance to the sheriff with the principal,, and the sheriff must accept the surrender of the principal, and acknowledge such acceptance in writing. ’’

Do the foregoing statutes preclude, as a valid defense to this forfeiture proceeding, such a surrender by the surety and such an acceptance by the sheriff as are shown by the facts of this case!

It is evident ’ that the Legislature, in these statutory provisions, had in view the purpose of enabling the surety to surrender the principal whenever he should deem it advisable so to do in' order to protect himself against further liability on the bond, and to this end it is made- obligatory upon the sheriff, in the case of a surrender in accordance with the statute,, to accept the principal and to furnish the surety written evidence of that fact.

In the absence of these statutes the liability of the surety would become fixed when he entered into-the obligation, and he would be left the alternative of either producing the prisoner, as provided in the bond, or paying the penalty. While the primary purpose of the statute was the protection of the surety, yet in prescribing tbe conditions upon which the, surety may thus relieve himself from further responsibility,-the law provides that the surety must deliver a certified copy of the recognizance to the sheriff with the principal, and the sheriff must accept the surrender and acknowledge such acceptance in writing. Because of the language thus used, the State maintains that the statute is mandatory, both as to what is required of the surety and also óf the sheriff, and that a legal surrender of the principal could arise only upon the performance of both conditions and in the manner prescribed.

So far as the sheriff is concerned this position seems unreasonable and at variance with the purpose of the law, for if the surety has complied with all of the requirements of the statute upon his part, the failure or refusal of the officer to acknowledge in writing the acceptance of the principal, should not be held- to deprive the surety of the- benefit of the law solely because of the default of the representative of the State over whose actions he had no control. We think a reasonable construction of this statute does not lead to such an inequitable result. In the case of State v. Meyers, 61 Mo. 414, this court had before it the question of the sufficiency of an answer to a 'scire facias in a forfeiture proceeding, “which in substance alleged that long before the judgment of forfeiture had been taken upon the recognizance, the defendant, as the surety of McGuire, had obtained a certified copy of such recognizance, which, together with the body of McGuire, he had delivered to the sheriff of Jasper county, who thereupon accepted the surrender thus made, and took, held and detained McGuire in his custody, by virtue of the copy of the recognizance.” A demurrer to this answer was sustained in the trial court and the forfeiture made absolute. It will be observed that the answer did not plead an acknowledgment in writing of the acceptance of the prisoner by the sheriff, and in discussing the sufficiency of the answer upon that point, this court, at page 415, said: “Nor was it necessary to his discharge that the defendant should allege therein that the sheriff acknowledged in writing the acceptance of the principal. This acknowledgment it is clearly the duty of the sheriff to make when the surrender of the principal occurs; but it is equally clear, that after the bail has complied with the provisions of law on his part, he is entitled to be exonerated from further liability, and that the failure or refusal of the officer to do his duty in the premises should not debar the surety from his discharge.”

It remains to be considered whether the court correctly construed the law in holding that the surety, because of his failure to deliver a copy of the recognizance to the sheriff with the prisoner, was precluded from successfully pleading and proving a surrender under the statute.

It is admitted that the surety did in fact surrender his principal to the sheriff and that the latter had held him as a prisoner in the county jail until he made his escape therefrom, but it is insisted that the requirement that a copy of the recognizance be delivered to the sheriff with the prisoner is mandatory and that a manual delivery of the prisoner to the officer without such copy falls short of a legal surrender and therefore constitutes no defense to a proceeding to recover the penalty of the bond.

If the delivery of a copy of the recognizance with the prisoner, as provided by statute, is mandatory, then it must be conceded that the alleged surrender of the principal in this case was void and that the judgment of the trial court should be affirmed, but if such requirement is not of the essence of the act to be done in effecting a surrender then that provision of the law is only directory and a failure to comply therewith would not have the effect of rendering invalid the substantial part of the act done. [36 Cyc. 1157.]

It is apparent that the actual surrender of the principal by the surety and the acceptance thereof by the sheriff are the substantial and essential elements of the statutory provisions under consideration, and that the manner in which the surrender should be made and the evidence thereof are incidental to the main purpose of the law. In the case of City of Cape Girardeau v. Riley, 52 Mo. l. c. 427, discussing the subject of directory and mandatory laws, this court said: “And where the language used does not import that it is of substance, the clauses of a law directing its observance are regarded as directory simply, for that is directory which is not of the essence of the thing to be done.” And in the same case the court quotes with approval from an earlier decision of this court as follows: “The course required to be observed in the performance of an act is not always of its essence or vitality. 'When an act is directed to be done in a particular way, the direction may be merely directory — that is, it is not of the essence of the act, but the act may stand in law notwithstanding the direction was not strictly observed.”

In the case of State v. Murmann, 124 Mo. 502, it is disclosed that the surety was present in the court room at the trial of the principal; that the jury returned a verdict of guilty; that thereupon and before any other proceedings in the case, the sheriff, in the presence of the court, laid his hands upon the principal and led him away to' the lockup.' The principal made his escape, and upon an appeal from a judgment of forfeiture against the surety this court, at pages 508 and 509 said: “When the verdict of guilt was rendered it was the duty of the court to order the prisoner into the custody of the sheriff, arid when the sheriff did in fact take charge of the principal by'an unequivocal assertion of authority, and without which his act would have been an unwarranted trespass, and started with him to the court prison, the surety was discharged. This- manual caption of the prisoner by the sheriff in the presence of the court abated and dispensed with the necessity for formal surrender of the prisoner by his bail. He had complied with his obligation.”

While in the foregoing excerpt this court said it was the duty of the trial court to have ordered the prisoner into the custody of the sheriff upon the return of the verdict, it does not place the right of the surety to his discharge upon that ground alone, but also upon the further ground of the manual caption of the prisoner by the officer and the actual transfer of the custody of the prisoner from the surety to the sheriff. The bond in that case was doubtless conditioned upon the appearance of the principal for trial and judgment, as provided in the statute. If the obligation of the surety had ended with the return of the verdict, the manual caption of the prisoner by the sheriff, upon which fact emphasis is laid in the opinion, would have been of no importance upon the issue of the surety’s liability. We consider the holding of this court in that case persuasive authority that appellant’s defense upon the point in hand in this case was meritorious.

As said by this court in the Murmann Case, supra, we are not to be understood as countenancing a loose practice in the matter of the surrender of a principal by the surety, but where the uncontradicted evidence shows .that the surety acted in good faith and did in fact, deliver the principal to the sheriff, who, accepted him unconditionally as a prisoner, and placed him in the jail where he remained in the exclusive custody of the sheriff until the time of his escape, we are of opinion that such facts entitled the surety to his discliarge and constituted a sufficient answer to the scire facias.

Entertaining the foregoing views, it follows that the judgment should he reversed. It is so ordered.

Ferriss and Brown, JJ., concur.


author: GRAVES, J.

text:
    THE STATE ex rel. HOWELL COUNTY, Appellant, v. WEST PLAINS TELEPHONE COMPANY.
    Division One,
    February 28, 1911.
    1. PENAL STATUTE: Derelict Corporation: Failure to Make Report: Parole. A suit on a penal statute is not a criminal, but a- civil, action. Such a statute is not, therefore, a part of “the criminal laws of this State.” The action authorized by Sec. 1017, R. S. 1899, to be brought in the name of the State at the relation of the county, against a corporation, to recover a fine of not less than $50, for failure to make report to the Secretary of State before July 1st of each year, stating the name of its officers, amount of stock, amount of taxes paid, etc., is a penal action or an action to recover a penalty, and the statute (Sec. 3030, R. S. 1909), authorizing such a “fine” is not a part of “the criminal laws of this State,” within the meaning of those words used in the parole law.
    2. -: -:--: Fine: As Meaning Penalty. The word “fine” often has a broader meaning than mere punishment for a crime. It is sometimes used to express the idea of a penalty imposed for the violation of a law, when such violation is made neither a misdemeanor nor a felony; and in this sense it is used in the statute which requires corporations to report annually to the Secretary of State, and authorizes the county to “recover” a fine from them.
    3. -: -: -: Form of Action. The pleadings may indicate, as they do in this case, that the State has chosen to resort to a civil action as tbe remedy to recover the fine prescribed by the statute rather than to the criminal laws to impose a punishment, even if the statute makes the derelict act a criminal offense.

      4. PERSON: As Used in Parole Law. The word “person,” as-used in the parole law, has no application to corporations,. So that where a fine is imposed upon a corporation for failure to make report to the Secretary of State of its officers, capital stock, taxes paid, etc., the fine cannot be suspended under the parole law. Parole laws have reference to natural persons —to citizens who may he incarcerated in jail or penitentiary.
    Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded (with directions).

   GRAVES, J.

This is an action brought by the State at the relation of Howell county against the defendant, a telephone company, under the authority of section 1017, Revised Statutes 1899 (R. S. 1909, sec. 3030).

The statute, with an immaterial change in the last revision, thus reads: “Every incorporation to which sections 3025 to 3034, inclusive, apply, failing, within sixty days from July the 1st in each year, to make the report herein provided for, shall be subject to a fine of not less than fifty, nor more than one thousand dollars for each offense, and each succeeding thirty days of such failure shall constitute a separate offense and be subject to a like fine, which said fines shall be cumulative, and one action may be maintained to recover one or more such fines, to be recovered before any court of competent jurisdiction. No suit shall be maintained for any such offense unless brought within six months from September 1st of the year in which the report is due, which date shall be the time when such right of action accrues; and it is hereby made the duty of the Secretary of State, as soon as practicable after the first day of September in each yeah, to report to the prosecuting attorney of the county in which any such delinquent corporation may be located, the fact of its failure to make the required report, and the prosecuting attorney shall, at the first court term after he receives the report from the Secretary of State, institute proceedings in the name of the State, at the relation of the county, to recover the fine or fines herein provided for, which shall he applied to the county revenue fund, except that for instituting, and prosecuting said suits the prosecuting attorney shall receive as his compensation one-fourth of the penalty collected; and in case any such suit shall he taken to either of the Courts of Appeals or the Supreme Court, then the Attorney-General is hereby required to assist the prosecuting attorney, and the Attorney-General shall also be entitled, to one-fourth of the amount recovered from the corporation violating the law. The Secretary of State shall, whenever a corporation makes its report after the time provided by law for the making of such report, certify that fact to the prosecuting attorney.”

Section 1013, Revised Statutes 1899', provides that corporations like defendant shall be required to make a report to the Secretary of State, which report must contain certain stated information.

The petition in this case was in four counts. The first count charges that the corporation failed to file its report on July 1,1905, or within sixty days thereafter. The other three counts go to subsequent offenses after September 1, 1905, as indicated by the statute above quoted. Answer was a general denial as to each count. Trial was had before the court, a jury having been Avaived. The court found for the relator upon the first, count and entered judgment in this language:

“On this day, this cause coming on to -be heard, comes plaintiffs and defendant, both by attorney, and announce ready for trial, whereupon the matters and things at issue being submitted to the court sitting as a jury, the court doth find from the evidence offered by both plaintiff and defendant that defendant Ayas on the first day of July, 1905, and within sixty days thereafter and now is, a corporation doing business in the State of Missouri, and the court doth find on the first count of plaintiff’s petition that as such corporation defendant failed to report to the Secretary of State of the State of Missouri, on the said 1st day of Julyy1905, and within sixty days thereafter, the location of its principal business office, the name of its president and secretary, the amount of its capital stock, both subscribed and paid up, the par value of its stock and the actual value of its stock at the time said report should have been made, and the cash value of its personal property and of its real estate in this State on the first of June immediately preceding, and the amount of taxes, city, county and State, paid by said defendant in this .State for the year last preceding the time said report should have been made and finds for plaintiff in the sum of fifty dollars damages and costs on said first count, and the cost of this action.
“It is therefore considered, ordered, adjudged and decreed by the court that plaintiff have and recover of and from the defendant the sum of fifty dollars and costs, so found as aforesaid, and that éxecution issue therefor. It is further ordered by the court, that the fine assessed herein be suspended under parole law upon the payment of all costs by defendant.”

The court refused to find and enter judgment for relator as to the other three counts. Plaintiff objected to the paroling- of the defendant as done by the judgment, supra. This is the only question pressed for consideration here. The relator says that no point is made as to the finding and judgment upon the other counts.

By appeal the case first went to the St. Louis Court of Appeals, but was certified to this court because a county was the relator and real party in interest. The sole question is, did the trial court, have right to parole the defendant under the judgment, supra, and thus preclude the county and its prosecuting attorney from collecting the fifty dollar fine therein adjudged to be -due to relator. The judgment and the case as presented are without precedent in this State, or elsewhere, so far as we know. It must find its solution in the parole laws of the State. The statute in force at the time was section 2815, Revised Statutes 1899, which reads:

‘ ‘ The circuit and criminal courts of this State, and the court of criminal correction of the city of St. Louis, shall have power as hereinafter provided, to parole persons convicted of a violation of the criminal laws of this State. ’ ’

The questions are: (1) does the word “persons” as used in this statute include corporations, and (2) is the act violated- by the defendant, strictly speaking, a part of the criminal laws of the State, or if it can be so called, is the present action a criminal action as instituted.

These two questions we shall discuss, but in inverse order.

I. To our mind the present action might be denominated a penal action or an action to recover a penalty. Not only so, but the statute upon its face seems to. create such an action rather than a pure criminal action. It is true that it uses the word “fine” rather than “penalty,” but in all other respects it seems to contemplate a civil action to recover a penalty.

The word “fine” is evidently used in the sense of “penalty.” ' The statute is under the head of Corporations, and not Crimes. It nowhere declares such failure to report to be either a misdemeanor or a felony, and we have but the two general classes of crimes. The statute speaks of the pleading as a “suit,” and fixes a limitation not known to either misdemeanors or felonies, i. e., in that the action is barred in six months. It provides how the suit shall be brought. It says that such “ proceedings” shall be instituted “in the name of the State, at the relation of the county,” a style frequently provided for in actions to recover penalties.

' It lias been well said in 16 Ency. Pl. and Prac., page 234: ‘ ‘ Tbe comprehensive meaning given to the word ‘penal’ in common usage, and the indiscriminate use of the words ‘penalty,’ ‘fine’ and ‘forfeiture,’ make it difficult at times to determine whether a statute should be enforced by a criminal prosecution or a penal action. . . . The use of these and other technical words or phrases will frequently determine the form of action as respectively civil or criminal; but not if a different intention on the part of the Legislature must be gathered from the act taken in its entirety. ’ ’

Taking the statute a.s a whole it must be said that it is not strictly criminal in its nature. It was not the purpose of the law-making power to put it upon the basis of a misdemeanor, for such it would be if purely criminal. It is quite clear that the word “fine” was used in the sense of “penalty.” The word fine often has a broader meaning than the mere punishment for a crime. It is frequently used to express the idea of a penalty imposed for the violation of a law, when such violation is neither made a misdemeanor nor a felony.

In Hanscomb v. Russell, 11 Gray (Mass.) l. c. 375, it has been well said: “But the word ‘fine’ has other meanings: as appears by most of the dictionaries of our language, where it is defined as not only a pecuniary punishment, but also as a forfeiture, a penalty, etc. ’ ’

In State v. Marshall, 64 N. H. l. c. 552, it is said: “In the absence of any special provision as to the mode of procedure, the use of the word fine determines the form of the remedy.” The court was discussing a statute which used the word “fine,” but which did not prescribe a remedy. It held that a criminal proceeding was a remedy, but clearly indicates that if the statute, as does ours, had provided for a remedy, the mere use .of the word “fine” would not have made it a criminal case. Our statute prescribes the mode of procedure and calls it a “proceeding” to “recover” the fine and not a “'proceeding” to punish by fine.

To our mind this statute contemplates a civil action to recover a penalty, and is not within the clause “criminal laws of this State” as used in Revised Statutes 1890, section 2815, supra..

In Town of Indianapolis v. Fairchild, 1 Ind. l. c. 318, it has been well said: “It is held that a suit on a penal statute is not a criminal but a civil cause. [Atchison v. Everett, Cowper 382.] Such a statute, therefore, is no part of the criminal law. ’’

It is true that in this State we have now, and had then, a statute by which a penalty could be collected by indictment or information. The statute then in force was section 2391, Revised Statutes 1899, and reads: “Whenever a fine, penalty or forfeiture is o.r may be inflicted by any statute of this State for any offense, the same may be recovered by indictment or information, notwithstanding another or different remedy for the recovery of the same may be specified in the law imposing the fine, penalty or forfeiture: Provided, that in all eases the fine, penalty or forfeiture shall go to the State, county, corporation, person or persons to whom the law imposing the same declares it shall accrue. ’’

We hardly think that this statute changes the action from a civil action to recover a penalty to one criminal pure and simple. The proviso to the statute lends color to that which precedes it.

The petition and answer in the case at bar show that the State chose to resort to the civil action as the remedy rather than the criminal law, if in fact the statute makes the act a criminal offense, of which latter fact we are not convinced. So that upon the theory adopted and the remedy invoked this is not a criminal action, and the parole law would have no application.

II. But going further, the word “persons” as used in the parole law has no application to corporations. The purpose of the parole law was to place the individual criminal under the supervision of the court, to the end that a good citizen might be made of him. Such laws have reference, for obvious reasons, to our natural citizens rather than to artificial citizens. Such laws refer to the citizen who can be incarcerated in the jail or penitentiary, and not to the citizen, artificially made, who can only respond by a fine. The purpose of such laws is to give the courts the power to prevent first offenders from mingling with hardened criminals, and by this means, together with the supervising power of the courts, it was hoped that good citizens could be made of the first offenders, and especially of youthful offenders.

In 1907 an addition was made to the parole law (Laws 1907, p. 385; R. S. 1909, sec. 5365). This act reads: “When any person of previous good character shall be convicted for the first time of any felony, except murder, rape, arson or robbery, and imprisonment in the penitentiary shall be assessed by the court or jury as a punishment therefor, and sentence shall have been pronounced, the- court before whom conviction was had, if satisfied that such person, if permitted to go at large, would not again violate the law, may, in his discretion, by order of record, parole such person and permit him to go and remain at large until such parole shall be terminated, as hereinafter provided : Provided, that the court shall have no power to parole any person after he has been delivered to the warden of the penitentiary.”

This act broadened the powers of the courts, but it is a clear declaration of the Legislature of what is meant by the parole laws of the State. A reading of this addition to the parole laws shows that the lawmakers were of opinion that such law applied to the natural citizen and not to a corporation, or artificial citizen.

We have not .been favored by respondent with a brief, and the brief for the State is without citation of authority, but upon investigation we are satisfied that the .trial court erred in granting a parole to the defendant herein. The cause will therefore be reversed and remanded with directions to enter a judgment for the plaintiff in the sum of fifty dollars without any benefit of the parole laws of the State.

All concur except Valliant, J., absent.