author: LAMM, J.

text:
    THE STATE ex rel. RODES, Game and Fish Warden, v. WARNER, County Treasurer.
    In Banc,
    June 20, 1906.
    1. FINES: Belong to School Fund: Game and Fish Law. The fines authorized to be imposed for a violation of the Game and Pish law of 1905 belong to the school fund, and section 64' of that act, requiring all such fines to be paid into the State Treasury to be applied in meeting the expenses of enforcing the law, is in conflict with section 8 of article 11 of the Constitution, which requires all penalties and forfeitures collected in the several counties for any breach of the penal or military laws of the State to be added to the county school fund, and such fines when collected must be added to that fund.'
    2. -: -: -: Qui Tam Action. An action brought in the name of the State, charging one with a violation of the Game and Pish law, which is by the act made a misdemeanor, is in no sense a qui tam action, although that act says that the^ fines collected for violations thereof shall be turned into the State Treasury to be used in meeting the expenses of its enforcement. A qui tam action is a civil action, brought by an informer, under a statute which provides that a part of the penalty affixed by the act for its violation shall go to him and the balance to the State or some other institution.
    3. -: Qui Tam Actions: Constitutional Provision Not Applicable. The Constitutional provision declaring that “the clear proceeds of all penalties and forfeitures collected for any breach of the penal or military laws” shall go to the county school fund, does not apply to qui tam actions, nor are penal statutes leveled merely at a violation of private rights wherein a private person is nominated as entitled to sue for and recover the penalties fixed • for their violation, of the character referred to in that constitutional provision. But that provision does apply where fines and penalties are prescribed for crimes and are recovered by public authority, and is an inhibition upon the power of the General Assembly to divert the fines and penalties collected in such cases from the county school fund.
    4. -: -: Game and Fish Act. Prosecutions for a violation of the Game and Pish act of 1905 are in no sense qui tam actions, but by the act itself are made criminal prosecutions by public authorities.
    Mandamus.
    Peremptory writ denied.

      Barnett <& Barnett for relator.
    (1) The provision of the said act requiring fines collected thereunder to be paid into the Game Protection Fund instead of to the school fund, is constitutional. A legislative act is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt. State v. Lay-ton, 160 Mo. 474. An infraction of the Constitution must be plain and obvious to be fatal to the act. State v. Whitaker, 160 Mo. 59; Sutton v. Phillips, 116 N. C. 502. (2) Section eight of article eleven of the Missouri Constitution provides that the “clear proceeds” of all forfeitures and penalties and of all fines collected shall belong to the school fund. In this instance there are no clear proceeds. All of the fines collected are used under the provision of the act in question for the enforcement and carrying out of the provisions of the said game law, leaving no proceeds resulting from said act after the payment of the expenses of the enforcement of the act itself. The meaning of the constitutional provision just cited is that all fines and penalties recovered where the legislative enactment does not otherwise provide shall go to the school fund. In most cases where a fine is imposed for the violation of a law there is no express provision as to where- the fine shall go. It belongs to the State at large. The Constitution in such case directs that such fines shall go to the school fund. But the enactment of penal laws and the imposition of fines and penalties is a matter which the Constitution has confided to the Legislature. The Constitution itself does not prescribe what penalties shall accrue to the State. That is a matter left to the Legislature. Such penalties only as the Legislature provides shall accrue to the State, that is, to the State at large without any limitation, go to the county school fund, but the Legislature may provide that these penalties be paid fpr the enforcement of the law or be paid to an individual to -induce the enforcement of a law or be paid elsewhere in furtherance of any police regulation of the State. Scott v. Railroad, 38 Mo. App. 528; Barnett v. Railroad, 68 Mo. 63; Sutton v. Phillips, 116 N. C. 502; State ex rel v. Sams, 99 N. W. 543; Katzenstein v. Railroad, 84 N. C. 693. The Legislature as a part of the police regulation of the State notwithstanding the constitutional provision in question could enact that the entire penalty for the violation of a law should be paid to an individual, to an' informer, in order to stimulate that individual to enforce the law. Sutton v. Phillips, 116 N. C. 504. Then for a much stronger reason could the Legislature provide, as in this case, that the fines imposed by the act called the game law should be paid into a game protection fund in order to enforce and carry out said law. (3) Independent of the act itself there would have been no fines or penalties and if this Game Protection Fund is deprived of the revenue provided by the act itself, then the whole act must fall for want of support because you take from the act itself its very means of existence. And if you destroy the act, of course the school fund would'be in no better condition than now.

      John A. Sea for respondent.
    (1) The act creating the Game Protection Fund, so far as it appropriates fines and penalties, imposed for violation of said act, for the use of said Game Protection Fund, is unconstitutional and void. (2) The offense for which Weber was punished by a fine is, by section 4 of the game law, declared to be a misdemeanor; if convicted under section 15 or 16 of said act, it was still declared to be a misdemeanor by the terms of said act. The prosecution for the violation of the game law. “may be either by indictment, complaint or information.” Sec. 25, Game Law, Laws 1905, p. 163. Being so declared a “misdemeanor” by statute, the State alone could prosecute Weber, and then only by indictment or information. Sec. 12, art. 2, Mo. Constitution.. And Weber, so prosecuted, was prosecuted “criminally.” Sec. 12, art. 2, Mo. Constitution. The Governor had power to grant any commutation or pardon of any violation of this law after conviction. Sec. 8, art. 5, Mo. Constitution. The game law recognizes this, and expressly provides either for full payment of fine and costs, or imprisonment in county jail for term, or release “upon the order of the Governor of this State.” Sec. 23 Game Law, Laws 1905, p. 163. Being punishable, in the name of the State on information or indictment only, by a “fine,” the violation of the law by Weber was “a crime” or “criminal offense.” Sec. 2396, R. S. 1899; State v. Blitz, 171 Mo. 540. And the arrest and conviction of Weber was a “criminal proceeding.” TJ. S. v. Huen, 118 Fed. 455. Being a “crime” it was an offense against the public or State, and the fine imposed was a punishment. Gorman v. Budlong, 23 R. 1.169. A statute, in imposing a punishment, on information or indictment in the name of the State for an offense against the state or public, which punishment,, or conviction, the Governor had power to commute, or to pardon the offense, makes the act in question a “penal law” of this State. Huntington v. Attrill, 146 U. S. 657; Brady v. Daly, 175 IT. S. 148; City of Atlanta v. Chattanooga F. & T. Works, 127 Fed. 23; State v. Hardman, 16 Ind. App. 357; Kilton v. Providence Tool Co., 22 R. I. 605; People v. Common Council, 36 Mich. 186; Railroad v. State, 22 Kan. 15; Cullian v. Burkhard, 84 N. Y. Supp. 828. (3) The county court is the trustee of county school fund, and, as such, has the sole management and control thereof. Secs. 9824, 9826, R. S. 1899.
   LAMM, J.

In 1905 the General Assembly of the State of Missouri passed an act entitled “An Act relating to the preservation, propagation and protection of game animals, birds and fish; creating the office of game and fish warden; creating a game protection fund, and appropriating money therefrom,” in 71 sections. [Laws 1905, p. 158.]

By section 38, it is provided that the Governor shall “appoint some person skilled in matters relating to birds, game and fish, a resident of the State, game and fish warden.” And this official is put under bond and given large powers and multiplied duties. Thereafter the Governor selected relator as “skilled in matters relating to birds, game and fish,” and duly appointed and commissioned him to the office of game and fish warden, he qualifying as such, taking upon himself the burden of said duties and powers.

By section 66, it is provided that “moneys collected from fines, penalties.or forfeitures, under this act, belonging to the game protection fund, shall be paid over by the officer authorized to collect said money to the State Treasurer on or before the first day of each month.”

By section 64, it is enacted that “all moneys sent to the State Treasurer in payment of . . . fines, penalties, forfeitures, shall he set aside hy the State Treasurer and shall constitute a fund, known as the ‘ Game Protection Fund, ’ for the payment of the salary of the state game and fish warden, his necessary expenses, also for the payment of deputy game and fish wardens and their necessary expenses.”

By other sections, the game and fish warden is authorized to appoint deputies for each Congressional district, and, furthermore, by section 53, “all sheriffs, deputy sheriffs, marshals, constables or other peace officers, are declared to be ex officio game and fish wardens.” The act bristles with impaling provisions, the violation of which are denounced, seriatim, as misdemeanors, to be punished as criminal offenses by fines (and by imprisonment, in case the fines are not paid), ranging from $5 to $1,000, and the scheme is that all these fines should be paid to the State Treasurer to swell the corpus of the “Game Protection Fund,” out of which fund comes the expenses of enforcing the law.

At a certain time, one Weber was convicted before a justice of the peace in Jackson county of a misdemeanor for violating one of the provisions of said act, and was mulcted in a fine of $50, which he paid. This fine was. turned over to respondent, Warner, as county treasurer of Jackson county, who credited the same to the school fund of that county. Whereat relator brought this original proceeding to compel, by the moving writ of mandamus, said county treasurer to turn over said fine ro the State Treasurer to be by him credited to the “Game Protection Fund.”

An alternative writ issued, directed to respondent, requiring him to pay over said $50 to the State Treasurer for the use of said fund, or show cause why he has not so done. To this alternative writ, respondent made return interposing divers grounds as “cause” for not obeying’ our writ. The only cause, deemed of consequence, is that whereby the constitutionality of those provisions of the act requiring such fines to be converted into the state treasury and into said fund is challenged. It is insisted said provisions violate section 8, article 11, of our Constitution, reading thus:

“All . . . , the clear proceeds of all penalties and forfeitures, 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 public school fund; the income of which fund shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this State.”

On the coming in of this return, relator demurred thereto. Thereby the question submitted becomes one of law and the issue will be treated as single and sharply defined as pointed out.

Does the statutory disposition of these fines impinge upon the state Constitution? That is the question here, and, in our opinion, that question must be answered in the affirmative. It is with judicial reluctance we are constrained to this notion; for the law is a wholesome one. The mischiefs struck at and to be retarded are manifest; the benefits in view and to be advanced, many and salient; and, in so far as this holding tends to emasculate the law and defeat its purposes (if so it results) by reducing somewhat the fund for its enforcement, it becomes a matter of pronounced solicitude and gravity. Before any provision of a statute may be declared unconstitutional, the courts should allow full play to all wise rules and maxims of construction and interpretation — inter alia, that its unconstitutionality should be so palpable and obvious as to leave no room for reasonable doubt in the court’s mind. [State v. Layton, 160 Mo. l. c. 499.] Another unbending rule is that a state legislature (in contrast to the federal Congress) has all legislative power' not prohibited to it by the state or federal Constitution. [State ex rel. v. Sheppard, 192 Mo. 497; Cass County v. Jack, 49 Mo. l. c. 199.] , But considering, as we are hound to consider,' the constitutional provision, supra, as imperious, as written by plain men in plain language for a plain and high purpose; and approaching, as our duty is, the legislation in question without judicial austerity or over-refinement of interpretation, we have been able to arrive at no othér conclusion than that fines arising from punishment of violators of the act in question, like all other fines arising from punishment inflicted by the criminal law, are devoted to a constitutional purpose of inflexible stiffness, to-wit, the education of the little ones, the children, of Missouri.

And this is so, because:

I. In the first place it is argued by the learned counsel of relator that penal laws may be enforced for the benefit of individuals; that public policy, as chrystallized in the law, permits qui tarn actions; and further, that, when the gist and scope of the legislation in hand is considered, it is apparent it was passed for a specific purpose, to-wit, the protection of game, and to create a specific fund, to-wit, the Game Protection Fund —ergo, relator says, in effect, it may stand on the theory that legalizes a qui tarn action, or that legalizes the collection of a penalty for the benefit of a private person or for a local object. On this insistence, we are referred to Barnett v. Railroad, 68 Mo. 56, where a penal statute was under consideration giving to a stock-owner double damages for killing stock, when a railroad remained unfenced contrary to law, and in which case the point was made that the statutory penalty under the Constitution could not go to the stock-owner, but inured to the benefit of the school fund, and, hence, the statute was void. In that case the law was held constitutional, and the penalty of double damages, it was held, might go to the stock-owner. In considering the constitutional provision now in hand, Hough, J., speaking for this court, said: “This section clearly refers to penalties accruing to the public, and not to penalties recovered by private persons for their own use.” [1. c. 64.]

In Kaes v. Railroad, 6 Mo. App. l. c. 405, the same constitutional provision was interposed as a defense in an action under the statute for double damages for killing stock, and Lewis, P. J., said for that court: ‘ ‘ The constitutional provision . . . whereby ‘the clear proceeds of all penalties and forfeitures’ are directed to go into the public school fund, evidently applies only to penalties and forfeitures actually collected by the public county authorities.”

Scott v. Railroad, 38 Mo. App. 523, is relied upon by relator. That was an action for damages and a penalty- for failure to cause all the dead- or dry vegetation and undergrowth to he removed off defendant’s railroad right of way or burned twice in each year, to prevent the spread of fire and the destruction of property. In that case, it was contended plaintiff was not entitled to the penalty because of the constitutional provision now under consideration, and it was held that the law giving him the penalty was constitutional.

In further illumination of the matter, the language of Justice Gray in Huntington v. Attrill, 146 U. S. 657, is in point, as showing the intrinsic differences existing in penal laws and the distinction to be observed. That was a case where, by a bill in equity lodged in a Maryland court, it was sought to enforce the payment of a judgment recovered by plaintiff in "the State of New York under a penal statute. A defense was interposed based on Chief Justice Marshall’s maxim, that “the courts of no country execute the penal laws of another.” [The Antelope, 10 Wheat. 66, 123.] The necessities of that case required a consideration of penal laws.in general, and a gloss of the words “penal” and “penalty,” and Justice Gray said:

“In the municipal law of England and America, the words ‘penal’ and ‘penalty’ have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offense against its laws. [United States v. Chouteau, 102 U. S. 603, 611.] But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer in favor of the persons wronged, not limited to the damages suffered. They are so elastic in meaning as even to be familiarly applied to cases of private contracts, wholly independent of statutes, as when we speak of the ‘penal sum’ or ‘penalty’ of a bond. In the words of Chief Justice Marshall: ‘In general, a sum of money in gross, to be paid for the nonperformance of an agreement, is considered as a penalty, the legal operation of which is to cover the damages which the party, in whose favor the stipulation is made, may have sustained from the breach of contract by the opposite party. ’ [Tayloe v. Sandiford, 7 Wheat. 13, 17.]
“Penal laws, strictly and properly, are those imposing punishment for an offense committed against the State, and which, by the English and American constitutions, the executive of the State has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.”

In construing the Trespass Act (R. S. 1899, chap. 60) where treble damages may be recovered for certain forms of trespass, and which damages are treated eo nomine as “penalties,” and in one section of which (sec. 4574) it is provided that the penalty may be recovered either by civil action or by indictment or information at the option of the party injured, and by another section of which (sec. 4577) defendant might be imprisoned for not paying a civil judgment under that act, the constitutionality of those provisions was ■brought in question in Blewett v. Smith, 74 Mo. 404, but the constitutional objection (to-wit, that sec. 8, art. 11, was impinged upon) was disallowed. It was, however, pointed out that the act was intended for the benefit of the owner of the property injured and was constitutional under the authority of Barnett v. Railroad, supra. It may be said, in passing, that even under the Trespass Act where the penalty is recovered by indictment, such penalty shall be paid into the county treasury (sec. 4574), and, of course, became a part of the county school fund.

State ex rel. Clay County v. Railroad, 89 Mo. 562, was an action under a statute providing for a penalty for not ringing a bell or sounding a whistle at a certain public crossing. That statute gave one-half the penalty to the informer and the other half went to the county, and the same statute has been brought forward in later revisions as live law. [See R. S. 1899, sec. 1102.] A defense was interposed that the penalty under the Constitution belonged to the school fund, and, hence, the statute was void. It will he instructive to read that case in connection with the point now under consideration in the case at bar. Because, it will be observed, the Constitution refers to the “clear proceeds” of fine and penalties, and the learned judge who wrote that opinion construed “clear proceeds” to mean, as applied to that case, the one-half given by the statute to the county. It will not be space misapplied, nor labor lost, to quote from that case, thus:

“It is only the ‘clear proceeds of the penalties’ collected in the several counties for breaches of the penal laws of the State that belong (with the other funds specified) to the several counties under this constitutional provision. The Legislature, in imposing penalties for violation of its laws, may, in its discretion, for the purpose of securing the enforcement of said laws, the collection of the penalties imposed, and paying the expenses thereof, give a part thereof to an informer, and in such case what is thus realized constitutes the ‘clear proceeds of said penalties,’ within the meaning of section 8, article 11, of the Constitution, supra. [Barnett v. Railroad, 68 Mo. 56.] It follows, therefore, that section 806 is not unconstitutional, as claimed hy defendánt. ”

The same statute was again under review with the same constitutional point raised, in State ex rel. v. Railroad, 149 Mo. 104, and the same disposition was made of the point, under the authority of the foregoing case.

Another case is somewhat in point, State v. Clifford, 124 Mo. 492. That was a proceeding on scire facias to collect a judgment of forfeiture on a recognizance in a criminal case. The prosecuting attorney had collected the costs and the 10 per cent on the judgment of forfeiture allowed him as attorney’s fees by law, and thereafter undertook to forgive and release the 90 per cent of the judgment of forfeiture due the State for the school fund. It will be seen that in the provision of the statute allowing prosecuting attorneys to deduct 10 per cent of this penalty or forfeiture, the question of what is the “clear proceeds” is involved. The remarks of Gantt, J., speaking for this court, are of value on that point and also on the question presently under consideration. That judge there said:

“Had the circuit attorney authority to satisfy and discharge the forfeiture, upon the defendant’s payment of the court fees and a commission of ten per cent on the amount of the recognizance? This is a question of great practical importance. By section 8 of article 11 of the Constitution of this State, ‘ the clear proceeds of all penalties and forfeitures, and all fines collected in the several counties for any breach of the penal or military laws of the State’ shallbelong to and be securely invested and sacredly preserved in the several counties as a county public school fund. By section 637, Revised Statutes 1889, it is the duty of all prosecuting attorneys to ‘prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties and forfeitures accruing to the State or county,’ and by section 4981 they are allowed fees therefor as follows: ‘For collections on recognizances given to the State in criminal cases, and which are or may become forfeited, ten per cent on all sums collected, if not more than $500, and five per cent on all sums over $500, to he paid out of the amount collected. ’
“It will thus appear that the people of this State have in the most solemn form set aside all fines and forfeitures as a. part of the school fund and by statutes enjoined upon all prosecuting attorneys the duty of collecting these forfeitures, and as an incentive to diligent service in so doing, in addition to the salaries and fees otherwise allowed by law to those officers, a commission of ten or five per cent, as the case may be, is added ‘to be paid out of the amount collected.’ Surely, in view of the importance attached to them, both in the Constitution and statute, it ivas never intended that these recognisances and forfeitures should be used merely to furnish fees for the prosecuting attorneys, and the purpose to which they were, by the Constitution, devoted, entirely ignored

The Supreme Court of Michigan had occasion to examine and deliver a pronouncement upon a similar question. Certain parties were fined by a municipal court in Bay City for a violation of city by-laws. Thereat the county treasurer of Bay county sued out a writ of mandamus to compel the city authorities to pay over such'fines; and, as grounds for the writ, contended, under a constitutional provision that “all fines assessed and collected in the several counties and townships for any breach of the penal laws’’'shall be exclusively applied to the support of libraries, the city was not entitled to these fines, hut they should go to him for library purposes. Campbell, J., in considering and disallowing that contention, said (Fennell v. Common Council, 36 Mich. l. c. 189):

“The laws then and since have recognized a distinction between penal forfeitures for the violation of the laws of the State for the preservation of the public order and enforced by the State authorities, and the multitudinous forfeitures under contracts, taxes, highway laws and other statutes, where a liability arises to incur ..penalties to the State or local interests or private parties aggrieved, where the omissions of duty have not been treated as coming within the category of criminal conduct, but partake of the nature of a civil grievance or of a merely local wrong. ’ ’

What i.s qui tarn action? Black defines it (Black’s •L. Die., Tit. Qui Tam) thus: “Lat. ‘Who as well --. ’ An action brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the State or some other institution, is called a ‘qui tarn action;’ because the plaintiff states that he sues as %vell for the State as for himself.” This definition should not be lost sight of in considering the case at bar; because relator relies to some extent upon legal principles enunciated in qui tarn actions, or in actions of a similar sort, sustained upon similar principles. For instance, stress is laid by counsel on Sutton v. Phillips, 116 N. C. 502, and Katzenstein v. Railroad, 84 N. C. l. c. 693. It should be said of those cases that the reasoning employed must be understood and applied in the light of the facts there in judgment; and, as to the facts in judgment, it may be said both of those cases are somewhat similar in character to Scott v. Railroad, 38 Mo. App. supra; Blewett v. Smith, 74 Mo. supra; Barnett v. Railroad, 68 Mo. supra, and some other Missouri cases herein-before considered, and which Missouri cases are referred to as authority by the North Carolina court.

From the foregoing authorities, we deduce propositions pertinent to this case, it seems to us, and which may be formulated guardedly, as follows:

(a) Where penal statutes are merely leveled at a violation of private rights, and a private person or class of persons is nominated therein as entitled to sue for and recover penalties arising from the violation of such statutes for their own use, then such penal laws are not of the character of penal laws referred to in section 8, article 11, of the Constitution, and the penalties provided in such laws are not devoted by the Constitution itself to the public school fund.

(b) And where penalties such as are referred to in the foregoing hypothesis may be recovered by a qui tarn action — a civil action — a part may go to the informer and the other part may be devoted to. the purposes prescribed by statute law. [And in this connection it may be well to note our austere legislative policy relating to qui tom actions. For example (R. S. 1899, sec. 1542): “In all . . . qui tarn, actions, actions on penal statutes where the penalty is given to the informer . . . the plaintiff or person for whose use the action is to be commenced shall, before he institutes such suit, file with the clerk of the court in which the action is commenced the written undertaking of some person,” etc., to secure the payment of costs.]

(c) But where fines and penalties are prescribed as a punishment for a violation of public wrongs, i. e., crimes, and such penalties or fines are to be recovered by public authority, the disposition of such recovered fines or penalties comes within the constitutional provision under consideration, and they may not be turned awry from the prescribed constitutional course.

(d) And under the last hypothesis, the questión of “clear proceeds” confronts us. It seems (though that question is not in this case and is not decided) that a criminal statute might devote a reasonable portion of recovered fines and penalties by way of incentive or spur to officers in collecting them and enforcing the law; and that, after such appropriation of a part, the part remaining might he considered “clear proceeds” under the Constitution, and go to the public school fund in obedience to, and full satisfaction of its mandate.

II. The legislation in hand is not the first wherein an attempt was made to quite divert the pecuniary results of the criminal enforcement of the law from the public school fund and into the State treasury. In 1895 (Laws 1895, p. 26) the General Assembly passed an act entitled “An Act prohibiting the coloring yellow of any substance designed to be used as a substitute for butter; to prohibit the manufacture, sale, keeping for sale and fraudulent use of substances designed as imitation butter; to regulate the manufacture, sale and keeping for sale of any substance designed to be used as a substitute for butter, and making an appropriation for carrying out the provisions of this act.” By sections 7 and 10, violations of the act were made misdemeanors. Section 11 reads as follows:

“The State Board of Agriculture shall be and is hereby charged with the enforcement of this act. There is hereby appropriated to the State Board of Agriculture, out of any money not otherwise appropriated, the sum of five thousand dollars for the next biennial period, or so much thereof as may be necessary for the enforcement of this act: Provided, that all fines collected under the provisions of this act shall be covered into the State treasury. Actions under this act shall be brought in any court of competent jurisdiction. ’ ’

The constitutionality of that act was assailed in this court in two cases, State v. Newell, 140 Mo. 282, and State v. Bockstruck, 136 Mo. 335, and one point made was that fines, levied against convicted violators, must, under section 8 of article 11 of the Constitution, go into the county treasury for the benefit of the school fund, and may not be covered into the State treasury. The section of the law diverting these fines from the public school fund was, in effect, ignored and treated as unconstitutional, and the act otherwise upheld.

III. The history of our State legislation on the preservation of fish and game is somewhat curious and not without significance on the question being- considered. The constitutional provision in hand was substantially borrowed from the Constitution of 1865 and the plan of devoting fines, penalties and forfeitures (arising from the violation of “penal laws”) to a free public school fund seems to have originated in the latter instrument. Before such Constitution .was adopted, the legislative mind considered fish, at least. So far as the investigation of the writer goes, statutory enactments intended to aid in the preservation of the supply of fish, appeared first in the Laws of 1860-1, p. 31. That act related to the erection of seines, nets, fishdams and other obstructions in the waters of the State in such a way as to “obstruct the passage of fish up and down or through such waters or streams.” In other words, fish, sub modo, were allowed by law to swim wherever whim or instinct, pleasure or business, called. Moreover it is provided therein that any person violating the law shall be arrested on complaint and a justice was to hear the case in a “summary manner,*’ and any person found guilty, for the first offense, was to he fined not less than five or more than twenty dollars; for the second offense the fine might he doubled. The act speaks of the prosecution as a “ suit ’ ’ and provides that one-half the fine should go to the “common school fund of such county” and the other half should be paid the informer. If the "fine was not paid, the offender was committed to jail. This act seems to have been carried forward into the revision of 1865 and into Wagner’s Statutes.

In 1874 the Legislature passed an act entitled, “An Act for the preservation of game, animals and fish.” [Laws 1874, p. 108.] Violations of the law were made misdemeanors and fines inflicted therefor innred to the public school fund. [Sec. 7.] The same Legislature passed an act entitled, “An Act to prevent the destruction of fish.” [p. 114.] A violation of certain provisions of the last-mentioned law was made a felony to be punished by confinement in the penitentiary not exceeding three years. Violation of other provisions was made a misdemeanor, and a person convicted thereof was mulcted in a fine not exceeding $500. The legislative mind did not act upon the disposition of such fines, but they were left to take the constitutional course.

In 1877 the Fish Act of 1874 was repealed (Laws 1877, p. 330) and in lieu thereof a new law was passed making violations of its provisions misdemeanors and giving informers, in case of successful prosecution and recovery of fine, one-half of the amount recovered — the remainder, presumably, to take the constitutional course. The same Legislature passed a new act for the preservation of game, animals, etc., making violations thereof misdemeanors and providing that one-half of the collected fines should be paid into the public school fund of the county and the other half to the informer. These laws were carried forward into the revision of 1879, 1889, and 1899, with but small change — the disposition of fines remaining the same.

Carried forward with the act of 1877, in the aforesaid revisions, was an act passed in 1879, entitled, “An Act for the propagation and protection of foodfishes in the waters of the State of Missouri, and to appropriate money therefor.” [Laws 1879, p. 153.] This latter act made sundry violations misdemeanors and provided that one-half of the fines should be paid to the informer, the other half, presumably, to take the constitutional course. [R. S. 1879, secs. 1612-1634; R. S. 1889, secs. 3899-3919; R. S. 1899, secs. 2301-2320; in the last-named revision certain amendatory acts are included, but the disposition of the fines remains as in the act of 1877.]

In all these statutes, the foregoing provisions of law are carried forward under the head of “crimes;” and it will be seen that the Legislature, prior to the act of 1905, apparently kept the Constitution in mind and proceeded on the theory that part of the fine might be disposed of to aid in the enforcement of the law, but that a certain portion, as “clear proceeds,” should take the constitutional course of swelling the corpus of the public school fund. It was reserved for that act, by one stroke, to leave no “clear proceeds” for the school fund, but appropriate all to aid in the enforcement of the law and payment of official salaries.

IY. Finally, if the act of 1905 be critically examined, it will be seen that it holds the penalties of naked criminal law in terrorem over the heads of all offenders. In addition' to what has been said heretofore on this score, it will be found that at least twenty-five distinct classes of misdemeanors are created, and, in each class, by the use of disjunctives and other minutiae of details, its provisions are so framed as to create a swarm of offenses, defined as misdemeanors, to be punished as such on prosecutions by indictment and information, under supervision of prosecuting attorneys, aided by game and fish wardens, and the whole act bristles with the terminology of a criminal law, somewhat Draconian in severity. For instance, the Governor has the pardoning power by one section. By another section, if a convicted offender does not pay his fine he may be imprisoned in the county jail. By another, the prosecuting wardens are relieved from giving security for costs. By another, these wardens are allowed their fees as a cost perquisite. By another, the whole staff of bailiffs in the State are made ex officio wardens. By another, the power is given wardens to serve criminal process, to summon a posse comitatus, and (presumably) to raise tbe bue and cry. We take it, in case of a conviction of an insolvent offender tbe respective counties would be liable for costs, and, if tbe offender be imprisoned in the county jail, tbe respective counties would be liable for board. These prosecutions are confessedly in no sense qui tam actions but are made criminal prosecutions by public' authorities in tbe stiffest and most obstinate and precise sense.

In view of tbe foregoing, for this court to bold that tbe lawmaking power may ignore, as it has done, tbe imperative mandate of the Constitution relating to tbe disposition of fines collected for tbe breach of tbe penal law under review, would be in contravention of recognized and long-established rules of interpretation, and would lodge a power in tbe Legislature to, by mere amendments to our existing criminal laws, deplete tbe public school fund by drying up one of its constitutional sources of supply.

A peremptory writ of mandamus is, therefore, denied, and the present rule discharged.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    KANSAS CITY INTERURBAN RAILWAY COMPANY v. DAVIS et al., Appellants.
    In Banc,
    June 20, 1906.
    1. CONDEMNATION: Limitation on Power, The power given to a railroad company to condemn private property for its own use is to he exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go anywhere in the State and condemn land in spots.

      2. -: -: Meanders. A charter calling for a line of railway approximating twenty miles in length from a point in Kansas City to Lee’s Summit, does not mean a straight line of exactly twenty miles in length, but it floes mean a line with only reasonable meanders and reasonably approximating the length named. It does not mean a railroad from Kansas City to Swope Park.
    3. -: -: Map. The law requiring the railway company to file a profile map of the route intended to be adopted in the county is not satisfied with a map of a part or a section of the route.
    4. -: -: Abandonment. A railroad corporation has no right to willfully abandon any portion of its chartered route; and if at the trial of the proceeding to condemn the land of certain defendants, its purpose is made manifest to construct only a part of the road called for by the charter, it will not be permitted to condemn the property.
    5. -:-: Map: Proof. Where the petition says that plain-has a charter that authorizes it to build a railroad from á certain point in Kansas City to a certain point in Swope Park, and that its profile map shows “the actual survey, location and distance of said railroad,” it will be held on appeal that the map proved what the petition alleged, that is, that the route was to run to Swope Park, and, therefore, neither the allegation nor proof was in harmony with the charter which authorized plaintiff to build a railroad from Kansas City to Lee’s Summit.
    6. -: Defendants: Non-Agreeing Land-Owners. Where all the non-agreeing land-owners of the county or circuit whose land was to be taken, were not made parties defendant, the petition is fatally defective; and if that fact is made to appear by the proof, the proceeding should be dismissed.
    7. ——: -: -: Statutes. The words “shall be,” used in section 1264, R. S. 1899, which says that all non-agreeing landowners affected by the condemnation proceeding “shall be” joined as defendants, are not modified into “may be” by section 1267, which says that “any number of owners may be joined in one petition,” etc.
    8. -: -: -: How Raised. Where both parties tried the cause on the theory that one of the issues was that all non-agreeing land-owners affected by the proceeding had not been joined as defendants, it will be too late on appeal to raise the point that that issue was not raised by demurrer or by answer.
    'Appeal from Jackson Circuit Court. — Now. Andrew? F. Evans, Judge.
    Reversed and remanded {with directions).

      James F. Mister and Wash Adams for appellants.
    (1) The corporate existence of the plaintiff is an issue which may he made in a proceeding to condemn property. Railroad v. Shambaugh, 106 Mo. 566. (2) 1. The charter of plaintiff is forfeited under the very terms of the statute (in failing to do what the law requires of it within the time prescribed by law) that is to say, by the Statute of Limitations. It is the manifest purpose of this statute (R. S. 1899, sec. 1161), to require that the construction of a railroad should be begun in a reasonable time, and continued steadily and in good faith to completion, and that a large percentage of its capital stock should be actually expended, and that the railroad should be finished and put in operation for public use. The law intends in such a case as this “that its corporate existence and powers shall cease,” and not that it shall go on indefinitely with neither purpose nor responsibility, neither regarding its own obligations nor its duties to the public. 21. Failure to comply with this statute operated ipso facto to dissolve plaintiff corporation. Ford v. Railroad, 52 Mo. App. 439; In re Railroad, 75 N. Y. 335; Farnham v. Benedict, 107 N. Y. 159Railroad v. Brooklyn, 78 N. Y. 524; In re Railroad, 105 N. Y. 97; Commonwealth v. Water Co., 110 Pa. St. 391. (3) 1. There has never been made or had, even to this day, an established route or right of way such as the law contemplates and requires. The right of way has been attempted to be subjected by piecemeal, with such variations and breaks in its line that the route is not continuous to the extent of five miles from .Kansas City in any direction, and not fairly in the direction of Lee’s Summit, its pretended terminus. 2. And even over this nominal space, accomplished only by evasion and jugglery, there are spaces of 700 or 800 feet, by its own admissions, on its pretended right of way, which have not been acquired by plaintiff to this day, either by voluntary transfer of the owner, or by any proceedings of condemnation. 3. Nor has the consent of owners been had or asked, in such a way as to justify the condemnation proceedings instituted here or elsewhere. Nor were such profile maps filed as would enable owners of land to understand or be informed as to the right of way sought to be subjected. (4) 1. The petition in this case does not even purport to make (nor in fact make) parties defendant to this suit, “the owners of all such parcels as lie within the county or circuit,” as the statute expressly requires. R. S. 1899, sec. 1264. 2. Sections 1264 and 1267 contemplate only one condemnation proceeding in each county or circuit through which the proposed road is to run, and requires all persons interested in the land to be made parties thereto. 3. The statute must be strictly complied with, and the record itself must affirmatively show this. Wherever it has been attempted by summary proceedings to divest the owner of his property, the record must affirmatively show that the conditions precedent to the exercise of such extraordinary powers have been fully complied with. Anderson v. Pemberton, 89 Mo. 66; Brush v. Detroit, 32 Mich. 43.

      Moore & Handy for respondent.
    (1) (a) It is not necessary to join all persons owning tracts of land along the line of the proposed road, in one county or circuit, as parties defendant in one petition. Railroad v. Railroad, 129 Mo. 70; R. S. 1899, secs. 1161, 1267. (b) Sections 1264, 1266 and 1267 should be read and construed together. Section 1264 provides, “to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendant.” Section 1267 provides that any number of parcel owners resident in the same county or circuit may be joined in one petition as parties defendant. The point is that section 1267 is controlling as .to parties, and this court substantially so held in the following cases: Railroad v. Kellogg, 54 Mo. 334; Railroad v. Carter, 85 Mo. 448. These two last-named cases have been overruled by Union Depot Co. v. Frederick, 117 Mo. 138, so far as joinder of non-resident parcel owners is concerned, the court holding that under other provisions of the article it was proper to join non-resident with resident parcel owners. As between .the two sections above quoted in other respects the force of the Kellogg and Carter eases is not impaired. (e) The proper construction of the clause quoted from section 1264 is that all persons interested in the same parcel should be made parties defendant in one petition so that a judgment might be rendered that would do justice to all and prevent further litigation. This idea is supported by Union Depot Co. v. Frederick, 117 Mo. 146. (d) These sections should be so construed that all may stand if it is possible so to do.Manker v. Faulhaber, 94 Mo. 430; Curtwright v. Crow, 44 Mo. App. 567; Sutherland on Statutory Construction, secs. 239-41; St. Louis v. Howard, 119 Mo. 41; State v. Klein, 116 Mo. 265; Andrew County v. Schell, 135 Mo. 42. (2) Appellants contend that sufficient profile maps were not filed. They have not seen proper to incorporate the maps that were filed and were introduced in evidence in the bill of exceptions; therefore, this court cannot inspect them. If the maps had been made part of the bill of exceptions this court would have the same evidence before it that the trial court had. The trial court necessarily found the maps sufficient in form and character. Corey v. Railroad, 100 Mo. 282. However, according to the witness Stahlnaker, county surveyor, the maps were sufficient and afforded data from which all necessary points could be demonstrated. Becker v. Rardin, 107 Mo. 119; Cree a v. Higham, 161 Mo. 333. (3) The petition pleads an ineffectual effort on the part of the plaintiff to agree with appellants as to damages to be sustained by them by reason of the taking of the tract of land described, and the proof abundantly sustains the allegation. Corey v. Railroad, 100 Mo. 282; Moses v. Section Dock Co., 84 Mo. 242; Wilkinson v. Dock Co., 102 Mo. 130. (4) Appellants cannot raise in this proceeding the question whether or not the plaintiff, respondent, had capacity to condemn a right of way. Railroad v. Railroad, 129 Mo. 62. But referring to the testimony, there is no evidence that respondent did not comply with the law as to time of commencement of work on its road and the expenditure of the statutory amount within the first year and subsequent years.
   VALLIANT, J.

The plaintiff railroad company is seeking by this proceeding to condemn a right of way for its road through certain land of defendants in Jackson county. On filing the petition commissioners were appointed to assess the defendants’ damages and in due time they made their report assessing thé value of the property taken at $800. and the damages to the remaining property at $250; exceptions to the report were filed by defendants, which coming on to be heard, upon the pleadings and evidence, were by the court overruled, and a judgment of condemnation accordingly was entered, from which judgment the defendants have taken this appeal.

There are two points of chief importance presented for our consideration; the first is the insistence that the plaintiff has no corporate franchise to build a railroad between the termini stated in the petition; the second, that the owners of all the lands within the county to be taken for the plaintiff’s right of way, with whom the plaintiff has been unable to agree on the compensation to be paid, are not made parties defendant to the suit.

I. In the petition the plaintiff states that it is a corporation “organized under the laws of Missouri with full power and authority to construct, maintain and operate a standard guage railroad for public use in the conveyance of persons and property in the State of Missouri from a point commencing at or about Forty-eighth street and Main street in Kansas City Jackson county, Missouri, to a point in Swope Park, in said Jackson county, Missouri, in section 11, township 48, range 33, across and over the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly. ’ ’

The petition then goes on to state that the plaintiff had made and filed in the office of the county clerk a profile map of the route proposed and intended to be used in the construction and operation of £ £ said railway,” etc. Then follows a statement that the defendants are the owners of a certain tract of land through which it is proposed to construct the road and a description of the land. After which it is stated that the general course of the proposed road is northeasterly through this land and that it is ££an extension of the petitioner’s line of railway from said beginning point above mentioned. ’ ’

On the trial the plaintiff to prove its corporate authority to do what it was seeking to do introduced in evidence its charter, from which it appeared that it was organized as a railroad corporation under the laws of this State; that ££Kansas City in Jackson county, Missouri, and Lee’s Summit in Jackson county, Missouri, are the places from which and to which the road is to be constructed, maintained and operated,” and that its length was to be twenty miles.

When this proof was made the defendants moved to dismiss the proceeding for the reason, among others, of the discrepancy between the road proposed in the petition and that authorized by the charter. The motion was overruled and exception taken.

The power given to a railroad company to condemn private property for its own nse is to be exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go to any points in the State at will and condemn land in spots. It is required of the parties seeking to be incorporated as a railroad company that they state in their articles of association the places from and to which the road is to be constructed, and beyond the course between the points named (except as the law authorizes branches) the corporation has no right to go. Under a charter to build a road from St. Louis' to Kansas City the corporation would have no authority to build a road from St. Louis to Springfield, nor would a company which is chartered to build a railroad from Kansas City to Lee’s Summit be authorized to build one from Kansas City to Swope Park. The plaintiff’s charter calls for a line approximating twenty miles in length from a point in Kansas City to Lee’s Summit. That does not mean of course a straight line of exactly 20 miles in length, but it does mean a line with only reasonable meanders and reasonably approximating the length named in the charter. And the law contemplates that the company when it exercises the power of eminent domain intends in good faith to build the road its charter calls for. Section 1056, Revised Statutes 1899, requires the company before constructing any part of its road to file a profile map in the office of the county clerk of the route intended to be adopted in that county. That requirement of the statute is for the information of all concerned, especially those whose lands are to be taken, and the law is not satisfied with a profile map of a part or a section of the route in the county.

A railroad corporation has no right to wilfully abandon any portion of its chartered route; the right confered carried the obligation to perform. Section 1161, Revised Statutes 1899, declares that if the company does not begin the work of construction within two years and finish it within ten years it shall forfeit its corporate existence and its powers shall cease; then follows a proviso that if the company has in the meantime built a portion of its road it may retain and operate that portion. That proviso comes only as a modification of the forfeiture prescribed in the main body of the section; it is not intended to authorize a partial abandonment of the charter obligation, but it operates only when the condition of forfeiture has occurred and. when without it all corporate rights would cease and the property become forfeited. It is not an authority to proceed to construct, but a permission to hold that which has already been constructed and which but for the proviso would be forfeited.

When a corporation claiming the power to take private property for its own use invokes the aid of a court to carry out its purpose, the court will require it to show without equivocation that it is exercising the extraordinary power within the strict boundaries of the law. The court' will not lend its aid to assist the corporation in such case until the corporation makes an unequivocal showing that it is doing exactly what the law authorizes it to do.

If this corporation had come into court saying in its petition, “We have a charter which authorizes us to build a railroad from a point in Kansas City to Lee’s Summit in Jackson county, covering a line of about 20 miles in length as near as we can estimate it, but we have concluded to abandon that line, and in lieu thereof we purpose to build only a-road from a point in Kansas City to a point in Swope Park in Jackson county and we need the defendant’s property for our right of way, ’ ’ would any one. contend that on that showing the court would entertain the petition? Now, what is the difference in legal effect between a case stated in such a petition as that would be, and the case made by. the evidence under the petition we have before us? Here the plaintiff comes and says in its petition that it has a charter that authorizes it to build a railroad from a certain point in Kansas City to a certain point in Swope Park; so far as the petition shows that is all that the plaintiff has a right to do and it is all that it purposes to do. Yet when it comes to the proof the plaintiff shows a charter that authorizes it to build a road only from Kansas City to Lee’s Summit. Taking the statements in the petition in the light of the charter introduced in evidence, they mean that the plaintiff intends to use this charter for the.sole purpose of building a road to Swope Park and abandon the rest; and so far as the rights of these defendants are affected, if we allow their property to he taken under this proceeding, the effect is the same as if the plaintiff had come into court avowing a purpose to abandon the road its charter calls for.

A charter to build a road from Kansas City to . Lee’s Summit is certainly not the same thing as a charter to build a road from Kansas City to Swope Park; yet if the plaintiff in this case had, at the trial, introduced in evidence a charter authorizing it to build a road from Kansas City to Swope Park, it would have been proof of the averments in the petition of the plaintiff’s corporate power; how then can it he said that a charter to build a road to Lee’s Summit is proof of the same averments?

If plaintiff relies on the fact that Swope Park is on the line of its charter route from Kansas City to Lee’s Summit, then the burden of proving that fact rested on the plaintiff. Opposing counsel in their briefs are not agreed as to whether it is or is not, and we are unable to decide from the evidence.

Even if it appeared in evidence that Swope P’ark was on the line between Kansas City and Lee’s Summit, that would not justify this proceeding because the whole record shows only a purpose to build a road to Swope Park and negatives the purpose of building the road called for in the charter.

Plaintiff in its brief says that it was the duty of the defendants, who are the appellants, to have brought up the profile map that was in evidence, and that since they did not do so the presumption must be indulged that the map proved what the plaintiff offered it in evidence to prove.

Section 1056 requires the railroad company to file a profile map of its route intended or already adopted through the county and that it shall be based on actual surveys. The petition states that “a profile map of the route proposed and intended to be used in the construction and operation of said railway, which profile map shows the actual survey, location and distances of the road bed of said railroad,” etc., following the language of the statute, has been filed. That averment must be understood to mean just what it says, that the profile map shows the “said railroad,” that is, the railroad previously described in that petition, a railroad from Kansas City to Swope Park. And if that is true, and if that map shows the location of the whole road in the county as the statute requires, and as the petition says it does, then it also is evidence of a purpose to abandon the road to Lee’s Summit. Mr*. Winner, a witness for plaintiff and its right of way agent, was asked on cross-examination if there had been any survey to Lee’s Summit, to which he answered: “There has been what we call a preliminary survey, but no location. We have got to make a located map before we can condemn, and to do that we have to make sometimes three or four preliminary surveys.” There was therefore no location, no profile map as the statute requires, of the road called for in the charter.

We construe this petition to mean that the plaintiff’s purpose is to build a railroad from the point named in Kansas City to a point in Swope Park only and that under the charter introduced in evidence it has no.authority to do so.

II. In Railroad v. Nelson, 193 Mo. 297, there was a demurrer to the petition on the ground (among others) that it appeared on the face of the petition that there were other lands in Jackson county to be taken, yet the owners thereof were not made parties defendant. The judgment of the circuit court sustaining the demurrer was reversed because (on this point) we held that although it appeared that those other land-owners were not made parties defendant, yet it did not appear but that they had all agreed with the company as to the amount of compensation to be paid.

In the case at bar it did appear at the trial that there were other persons whose lands in the county were to be taken whose names were known and with whom the plaintiff had not been able to agree, who were not made parties defendant. Plaintiff now says that the defendants tendered no such issue in their answer and were not entitled to interpose that objection.

In the answer filed by defendants they did say: “Defendants also aver that the petition does not aver that the owners of all such parcels of land as lie within the county have been made parties defendant.” That is really in the nature of a demurrer, and as such it falls within the judgment of this court in the Nelson case, above cited. But although it is defective as a plea, in that it fails to state that no agreement could be made with those other parties, yet it is at least an attempted pleading of a material fact, and although defective, yet the defect was not brought to the attention of the court, but it was treated as a good plea and evidence on it without objection was received. In the cross-examination of Mr. "Winner the plaintiff’s right of way agent, he stated that there were other par. ties whose lands in the county were to be taken with whom he had not been able to agree, and was then asked: ‘ ‘ Q. You did not make them parties to this one 'suit here? A. No, sir, we don’t have to make any party except the party we are condemning to each suit.” Proceedings of this kind as to the pleadings and in some other features are not within the Code of Civil Procedure; they are proceedings peculiar and are prescribed by the statute which, although it calls for a petition and prescribes its requisites, does not call especially for an answer. Both parties tried this case on the theory that that was one of the issues in it, one of the objections to the validity of the proceeding on which the defendants were insisting, and it is too late now to say that there was no such issue in the case.

Section 1264, Revised Statutes 1899, which prescribes the course to be pursued when the corporation seeking to condemn cannot agree with the land-owners, requires that a petition shall be filed and prescribes what the petition shall contain, and it says: “to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendant, by name-, if the names are known, and by the description of the unknown owners of the lands therein described, if their names are unknown.” That is such a plain and unequivocal requirement of the statute that there is no call for judicial interpretation. The question has never been presented- to this court before. The statute in its present form was enacted in 1866. [Laws 1865-6-, p-. 47.]

In Railroad v. Kellogg, 54 Mo. 334, and Railroad v. Carter, 85 Mo. 448, it was held that under this statute non-residents could not be joined with residents in the same petition, but those two decisions on that point .were overruled in Union Depot Co. v. Frederick, 117 Mo. 138.

In the brief for the plaintiff it is argued that the language of the statute above quoted is qualified by the terms of section 1267 of the same article. The whole of that section is contained in these words: “Any nnmber of owners, residents in tbe same county or circuit, may be joined in one petition, and tbe damages to each shall be separately assessed by the same commissioners.” The argument is that the term “shall be” in section 1264 is to be cut down to “may be” to harmonize with section 1267. These two sections are parts of tbe same original act of 1866. If the purpose of the lawmakers in enacting section 1267 was to qualify the term “shall be” in the previous section they were not driven to writing another section to accomplish that purpose, because the previous section had not passed out of their keeping and they could have made the change by simply erasing one word and substituting another. The argument is that the words “shall be” in 1264 are to be read “may be” to harmonize with 1267. But to do so we would have to cut out of 1264 another sentence which also means “shall be.” The closing sentence in that section is: “It shall not be necessary to make any persons parties defendant in respect to their ownership, unless they are either in actual possession of tbe premises to be affected, claiming title, or have a title to the premises appearing of record upon the proper records of the county.” Why say it shall not be necessary to make persons parties defendant unless, etc., if tbe making of them parties was already not necessary but was a matter left to the will and pleasure of the plaintiff? The word “necessary” in that connection shows that the lawmakers intended ‘ ‘ shall be ” to mean an imperative command.

In reading section 1267 in connection with the sections that preceded it, the only legislative purpose that it seems to have is that it expressly says that all the assessments in one county or circuit are to be made by the same commissioners; that is the only new feature that seems to be introduced by that section. Section 1264 requires all the non-agreeing land-owners in the county or circuit whose rights are to be affected, to be made parties defendant, then section 1266 directs the appointment of commissioners and. requires the damages allowed each land-owner to be stated separately. "We think the fair interpretation of that section means that one set of commissioners is to do the whole work; bnt to the legislative mind it may have occurred that' a case might arise where there would be a. large number of parties defendant along the line from one end of the county or circuit to the other, and the court might be puzzled to know if it was intended in section 1266 to give the whole matter into the hands of one set of commissioners or to appoint more than one set, and therefore section 1267 was inserted to make the point clear. But whatever else may have been the purpose of section 1267 we are satified that it does not cut down the meaning of the terms “shall be” and “necessary” in section 1264. It is no part of our duty to find a reason for the law as given us by the General Assembly; it is sufficient for us to understand what the law is as given and to apply it to the case in hand.

We hold that the petition in this case is fatally defective because it does not include as parties defendant other non-agreeing land-owners in the county whose lands are to be taken for the right of way of plaintiff railroad.*

The judgment is reversed and the cause remanded with directions to dismiss the proceeding.

Brace, C. J., Gantt, Burgess, Lamm and Graves, JJ., concur; Fox, J., concurs in paragraph I and in the result, but expresses no opinion as to paragraph II.