text:
    W. H. HAYS v. C. C. & H. MINING and MILLING COMPANY, Appellant.
    Division One,
    March 31, 1910.
    1. SUITS: Filing Fee: Unconstitutional Tax. The Act of 1901, requiring the clerk of the circuit court of Jasper county to tax and collect a docket fee of three dollars in each case filed in said court, and to pay the same into the county treasury, is unconstitutional and void, as imposing a tax for a general public purpose; and a judgment based solely upon a failure to pay such filing fee cannot stand.
    2. -: -: Trial by Jury. Said act is not violative of that provision of the Constitution which guarantees the right of trial by jury in certain cases.
    3. -: -: Due Process, etc. Nor does said act deprive a person of life, liberty or property without due process of law. Its only effect is to close the door of the circuit court to all persons who demand that justice be administered to them, until each pays three dollars into the county treasury, and that simply compels them to purchase justice, which the Constitution prohibits.

      4. -: -: Special Law. An act Which requires the clerk of the circuit court “in all counties of this State which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court and having no criminal court” to tax and collect a docket fee of three dollars in each case filed therein, is violative of that part of section 53 of article 4 of the Constitution of Missouri which prohibits the enactment of special and local laws where a general law could be made applicable. At the time of its enactment (and at the present time) there was only one county to which the act could apply, namely, Jasper, and it was clearly intended to apply to that county alone.

      5. -: -: -: “May Hereafter Have.” Nor do the words “may hereafter constitute a separate judicial circuit” make the act any the less local and special, for the reason that, ■ hy no natural process, hut only hy legislative act, can a county ever have two judges of the circuit court, or a separate criminal court.
    Appeal from Jasper Circuit Court. — Hon. Howard Gray, Judge.
    Reversed and remanded.

      W. R. Robertson for appellant.
    The act complained of (Laws, 1901, p. 115), undertakes to tax litigants in the circuit court of counties composing a circuit, having two judges and no criminal court, three dollars which shall he paid into the county treasury. The act did not at the time of its passage, never has and likely never will, apply to any other county in the State than Jasper county. It seeks to fix the price to be paid the county of Jasper for admission to its circuit court. It attempts to deprive an appellant from a justice of the peace court, and other courts, of the right to a trial hy jury, unless the price of admission is paid. It denies appellants from a justice of the peace court, and other courts, and litigants in the circuit court,- due process of law. Even if otherwise valid, it exacts a tax for the county in a manner that could he accomplished hy a general law. The Legislature, hy this act, attempts to levy a tax on the litigating citizens of Jasper county, while if such a tax could he exacted it would have to he done by a general and uniform law applicable to the same class of subjects within the State. By this act the General Assembly undertakes to impose a tax upon the inhabitants of Jasper county directly, when the only tax which can he legally levied on them is such as the General Assembly may, hy general law, authorize the county to levy. Constitution, art. 2, secs. 10, 28 and 30, art. 4, sec. 53, art. 10, secs. 3 and 10; Fourteenth Amendment, Federal Constitution; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Ashbrook, 154 Mo. 374; Lumber Co. v. Railroad, 216 Mo. 658 ; State ex rel. v. Turner, 210 Mo. 77; Henderson v. Koenig, 168 Mo. 356; State v. McCarver, 113 Mo. 602; Cooley’s Const. Lim. (7 Ed.), p. 713; Egyptian Levee Co. v. Hardin, 27 Mo. 495.
   WOODSON, J.

The only questions involved in this controversy are propositions of law.

The respondent is not represented in this court, and, therefore, the cause was submitted upon the abstract of the record, statement of the cause and brief of appellant.

The statement of the cause made by counsel for appellant fairly presents the facts of the case, and sufficiently outlines the legal propositions involved to enable the court to grasp the case presented for determination, which is as follows:

“Plaintiff commenced his action against defendant before a justice of the peace of Jasper county to recover a judgment for seventy-five dollars, which purpose he accomplished on December 12, 1906; on the same day defendant perfected its appeal to the circuit court and on the next day the justice lodged his transcript in the office of the circuit clerk. The appeal was, therefore, returnable to the January term, 1907, of the circuit court; the defendant having failed to pay the so-called filing fee of three dollars sought to be exacted by the act of the General Assembly (Laws, 1901, p. 115), the plaintiff on. the 4th day of the January term of said court filed his motion to affirm the judgment of the said justice of the peace for the sole reason that defendant had not paid said fee of $3. To this motion of plaintiff, defendant filed its countermotion, alleging, in opposition to said motion of plaintiff, the unconstitutionality of said act in that it was in conflict with and repugnant to sections 10, 28 and 30 of article 2 of the Constitution of Missouri, which provides that our courts shall be open to every person and that justice shall be administered without sale, that the right to trial by jury shall remain inviolate and that no person shall be deprived of life, liberty or property without due process of law; section 53 of article 4, which provides that the General Assembly shall not pass any local or special law in cases where a general law could be made applicable; sections 3 and 10 of article 10, which provides that taxes may be levied and collected for public purposes only, that they shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same, and that they shall be levied and collected by general laws, and that the General Assembly shall not impose taxes upon counties, or the inhabitants thereof, for county purposes, but may by general laws vest in the corporate authorities power to assess and collect taxes for such purposes, and violates section 1 of article 14 of the amendments to the Constitution of the United States, which prohibits any State from making or enforcing any law which shall deprive any person of life, liberty or property without due process of law, and from denying to any person within its territorial jurisdiction equal protection of the laws. Defendant also asked in its counter-motion that the motion of plaintiff be stricken from the files and for naught held and that the said cause be set down for trial.
“Defendant’s counter-motion was overruled, plaintiff’s motion was sustained, to all of which defendant excepted, and judgment was rendered and entered by the circuit court .affirming the judgment of said justice of the peace, and a motion was within four days thereafter filed by defendant to set aside this judgment, which was overruled, and defendant excepted, and thereupon an appeal was taken to this court.
“We do not question the right of the circuit court to affirm a judgment of a justice of the peace, where the appellant fails to pay the so-called filing fee on or before the 2d day of the return term of the appeal, if the act exacting the fee is valid.”

The Act of the Legislature before referred to reads as follows :

“Section 1. In all counties in this State which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court ■and having no criminal court, the circuit clerk shall tax and collect a docket fee of three dollars in each case filed in said court, which fee shall be collected at the time of filing such case, and .shall be paid by the party instituting such suit or filing a transcript on certiorari or appeal. The amount of such docket fee shall be taxed in favor of the party paying the same ■as other costs in said case: Provided, that nothing in this- act shall be construed to require the payment of •said docket fee in any criminal proceeding or in prosecutions for a violation of any municipal ordinance; and provided further, that in suits for delinquent taxes, the prepayment of said docket fee shall not be required, but the same shall be taxed and collected as other costs in such cases.
“Section 2. The docket fee so collected shall be by said clerk reported to the county court of said county quarterly, and by him paid into the county treasury.”

I. The first insistence of counsel for appellant is, that this Act of 1901, before set out, is violative of sections 10, 28 and 30 of article 2.; section '53 of article 4; and sections 3 and 10 of article 10 of the Constitution of Missouri, which read as follows:

“Sec. 10. The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should he administered without sale, denial or delay.
‘ ‘ Sec. 28. The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill.
“Sec. 30. That no person shall be deprived of life, liberty or property without due process of law.”
Section '53 of article 4, among other things, provides that “in all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject.”

Sections 3 and 10 of article 10 read as follows:

“Sec. 3. Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.
“Sec. 10. The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city,, town or other municipal purposes* but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.”

We will consider these constitutional questions in? tie order above suggested.

Counsel for appellant contends, in brief, that this-Act of 1901 seeks to fix a price which all litigants must pay who institute suits in the circuit court of Jasper county, in consideration for the right to sue, and to-have their rights and interests adjudicated therein; all in violation of said section 10 of article 2, which provides, that the courts of justice shall be open to all where right and justice shall be administered without sale, etc. In other words, the act, in violation of the Constitution, closes the doors of courts of justice against litigants until the three dollars mentioned in the act are paid to the clerk of the court for the privilege of bringing a suit and having it determined by the court of that county; or, to express the idea in another form, it is tantamount to a sale of justice, in violation of the Constitution of the State.

While the respondent, as before stated, is not represented in this court, still we suppose his position below was that the fee of three dollars, required by said act to be paid to the clerk in each case filed in the circuit court of that county, was a deposit of so much money for costs to be taxed as such in the case in favor of the party paying it.

Counsel for appellant, however, contends that such insistence is unsound, for the reason that the three dollars paid to the clerk is not in fact applied to the payment of the costs of the case, but is, under the second section of said act, paid into the county treasury of the county, and thereby becomes a part of the general revenue of the county, and may be used for any purpose to which the county court may choose to apply it; and is, therefore, in fact a general tax, collected under the name and guise of costs.

In support of that contention counsel rely upon the following authorities: Egyptian Levee Co. v. Hardin, 27 Mo. l. c. 496; Cooley’s Constitutional Limitations (7 Ed.), p. 678; State ex rel. v. Ashbrook, 154 Mo. 375.

The first case relied upon, as supporting appellant’s position, involved the validity of an assessment of special taxes levied against certain lands for benefits received. In order to determine the question, it was necessary for the court to differentiate between general taxes and special benefits assessed in such eases; and in defining the former, the court said: “Where the money raised by the tax goes into the State treasury, or the county treasury, or the general fund of some city or town, and is applicable to any purpose to which the legislative body of the state, county or town may choose to apply it,” is a general tax. And Judge Cooley, on page 678 of his work on Constitutional Limitations, says: ‘ ‘ Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. ’ ’ And on page 713, the same distinguished author states that: “Every burden which the State imposes upon its citizens with a view to a revenue, either for itself or for any of the municipal governments, or for the support of the governmental machinery in any of the political divisions, is levied under the power of taxation, whether imposed under the name of tax, or under some other designation. ’ ’

Much light will be shed upon the character of this three dollars required to be paid by the Act of 1901 by a short review of the history of the circuit court of Jasper county, and the manner in which the salaries of the judges thereof were paid. For several years prior to the year 1901 the circuit court of Jasper county was composed of that county only, and had but one judge, and, consequently, during those years it alone came within the provisions of sections 9702, 9703 and 9704, Eevised Statutes 1899, which read as follows:

“See. 9702. In all counties in this State which now constitute, or may hereafter constitute, a separate judicial circuit, with only one judge of the circuit court therein, the circuit clerk shall tax and collect, as other costs are taxed and collected, a filing fee of two dollars in each case filed in the circuit court.

“See. 9703. The fund created by section 9702’ shall be known as the ‘Judicial salary account,’ and shall be paid to the circuit clerk when collected, and shall be paid by the said clerk to the judge of said court quarterly, and such quarterly payments shall be in the sum of three hundred dollars, and any deficiency in any quarterly payment may be paid out of the surplus in any succeeding quarter of the term of the judge: Provided, that nothing in this or the preceding section shall be construed as authorizing the payment of any such additional compensation to the said judge out of any State, county or public treasury; and provided further, that in no event shall the State, or any county composing said circuit, or any city in said county, be required to pay such filing fee.

“Sec. 9704. In all counties which contain, or may hereafter contain, over fifty thousand inhabitants, and whose taxable [assessed] ■ wealth exceed the sum of twenty-five million dollars, and which is adjoining a city which now contains, or may hereafter contain a population’ of over three hundred thousand inhabitants, there shall be paid by such county or counties to the circuit judge of such county the sum of one hundred and twenty-five dollars pér month, in addition to the salary now provided by law, and to the prosecuting attorney of such county the sum of fifty dollars per month, in addition to the salary and fees now provided by law.”

According to these sections, the two dollars thereby authorized to be taxed and collected in all suits instituted in that court and directed to be paid to the judge thereof as a part of his salary, was just as clearly a tax or license fee imposed upon the litigant by the State, for the right and privilege ■ of suing and prosecuting his suit, as was the money out of which the balance of his salary (mentioned in section 9704) was paid. Both were assessed and collected under the taxing power of the State; and both were devoted to the discharge of governmental burdens incident to the administration of the law, to-wit, the judge’s salary.. So it is seen from this, that all persons who began suits in that court prior to 1901 were taxed two dollars more for the right to do so than were litigants in all other courts of the State.

That condition of things continued in that circuit until the enactment of another Act of 1901. [Laws 1901, pp. 120 to 122, both inclusive.] The latter act, among other things, added another division to the circuit court of Jasper county, and gave it an additional circuit judge; and the third section thereof provides how the salaries of both judges are to be paid. That section reads as follows:

“Sec. 3. Whereas, the said judge of said court, by virtue of the provisions of an act entitled, ‘An act to provide additional compensation for judges of circuit'courts in all circuits composed of one county and having one judge,’ approved March 18, 1895, continuously since his first election in 1896, has received and is now receiving the sum of three hundred dollars per quarter, or twelve hundred dollars per annum from the fund provided for by said act. And whereas said act approved March 18,1895, will cease to apply to Jasper county and the Twenty-Fifth Judicial Circuit on the taking effect of this act; therefore, each of said judges shall receive for his services a salary at the rate of thirty-two hundred dollars per annum, two thousand dollars of which shall be paid out of the State treasury as now provided by law, and twelve hundred dollars of which shall be paid out of the treasury of Jasper county in quarterly installments. The county court of said county shall cause the same to be punctually paid. ’ ’

It will be observed that this section does not give to these judges the two dollars, mentioned in section 9702 and 9703, Revised Statutes 1899, as was previously paid to the former judge of that circuit. By this section of the latter act each judge of that court is to be paid annually a salary of $3200; and evidently for the purpose of recouping the State and county of Jasper for this $3200' additional expense required by this act to be paid annually to this additional judge, the Legislature passed the former Act of 1901 — the one under consideration- — -requiring the clerk to tax and collect the sum of three dollars in each and every case filed in said court, and to pay it into the county treasury, which, as shown by the record, would in ail probability amount to as much or more than this additional salary required to be paid to the additional judge.

If we construe this act in the light of the rules or definitions before announced by this court and by Judge Cooley, then we must hold that the three dollars required to be paid to the clerk before suit can be commenced in the circuit court of Jasper county is a tax imposed upon all persons filing suits therein for the right to so institute and prosecute suits in that court, for the reason the second section of the act in express terms requires the clerk to pay the same into the county treasury; and after being paid therein, it may be used for any purpose to which the county court may see proper to apply it, as it has the right to do, according to the rule stated in the case of Egyptian Levee Co. v. Hardin, supra, and as announced by Judge Cooley in the first quotation before taken from his valuable treatise.

It is thus seen that the three dollars imposed upon the litigants for the right to institute and prosecute actions' in that court is nothing more nor less than a burden which the State has imposed upon those citizens, with a view of raising revenue for the support of the State and county government, under the name and guise of a docket fee “to be taxed and collected in the case; ’ ’ but in reality it is a tax, pure and simple, imposed and collected for the right to sue and prosecute in the courts of that circuit.

If this act had required the clerk to retain the three dollars so taxed and collected until the termination of each case filed therein, and in case the plaintiff was successful, then to return it to him, hut if unsuccessful, then to apply it on the costs taxed against him instead of providing, as it does, for the clerk to pay it into the county treasury, where the plaintiff could never receive any benefit whatever therefrom, then quite a different proposition would be presented for determination. Under such an act the deposit of three dollars would clearly be a deposit to secure costs in the case; but as the act actually reads, it is clearly a tax, as before stated, imposed upon all who institute suits in the circuit court of Jasper county, which must be paid before the courts of justice of that county will be opened unto them; and, if this is a valid act, then and not until then can they legally demand of the courts that /“right and justice be administered” unto them “without sale, denial or delay,” as is guaranteed to all Ly said section of the Constitution, and which is enjoyed by all other citizens of the State.

We, therefore, hold said act to be unconstitutional, null and void, for the reasons before stated.

II. Counsel for appellant also insists that said act of the Legislature is violative of section 28 of article 2. That section of the Constitution guarantees the right of trial by jury in certain cases, but counsel for appellant has not suggested in what manner the act in question violates said section of the Constitution, and we are unable to see any repugnancy between the two. We, therefore, hold the act does not violate said section 28 of article 2 of the Constitution.

III. It is next insisted that said act is invalid because it is violative of section 30 of article 2, before set out. In substance, that section provides that a person shall not be deprived of life, liberty or property without due process of law. Counsel has likewise omitted to point out in what particular said act conflicts with this section of the Constitution. We are unable to see in what manner it deprives appellant of his life, liberty or property without due process of law. The only effect this act has is to close the door of the circuit court of Jasper county to all who demand that justice be administered to them until each of them pays into the county treasury the sum of three dollars. That is not depriving appellant of Ms property without due process of law, but compels him to- purchase justice, which the constitutional provision before mentioned provides shall not be sold.

We are of the opinion, therefore, that said act does not offend against said section 30 of the Constitution. \

TV. Counsel contends that this act violates section '53 of article 4 of the Constitution, which prohibits, among other things, the enactment of special and local laws where-a general law could be made applicable, etc.

As to this contention, we believe it is well taken,' for the reason that the act is limited in its operation to all counties “which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court and having no criminal court.” At the time of the passage of this act and at the present time Jasper county is the only county in the State possessing all of the requisites mentioned in the act, and for that reason the act can only apply to that county. If the act had stopped with the clause which limited its operation to counties “now constituting a separate judicial circuit, ’ ’ and had not contained the additional words “or may hereafter constitute such a circuit, ’ ’ then, according to all of the anthorities, it would violate said section of the Constitution. [State ex rel. v. Turner, 210 Mo. 77, and cases, cited.]

The case just cited involved the constitutionality of an act prohibiting the sale of intoxicating liquors within five miles of any State edncational institution which now has enrolled fifteen hundred or more students. In considering that statute, the court said: “The agreed statement of facts shows that the State University is located in Columbia, and that it was the only State educational institution which had enrolled fifteen hundred or more students at the time said act went into effect. According to this agreement the act could only apply to a section of country ten miles in diameter around the University, because there is no other State educational institution which had at the time fifteen hundred or more enrolled students; nor could the act ever apply in the future to other localities of the State, even though some one or more of the State educational institutions should have an enrollment of fifteen hundred students, for the reason that the act in express terms limits its operations to such localities as then had State institutions of learning, with an enrollment of fifteen hundred or more students. In other words, this act only applies to Columbia, and can never apply to other portions of the State although the same conditions may subsequently exist there. This being true, the act is clearly local and special in its operation; as much so as if it had named Columbia in express terms and then provided that no license should, thereafter be granted to any person to beep a dramshop within five miles thereof.”

The question now presents itself, do the words “or may hereafter contain such a circuit” differentiate the act in question from the act mentioned in the case last cited? There is a class of cases in this State which hold valid those statutes which by their terms are made applicable to all counties or municipalities which had a certain number of inhabitants, stated therein, at the time of their enactment, and which also provided that they were to apply to all counties or municipalities which might thereafter obtain the specified number. The following cases belong to that class: State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Marion County Court, 128 Mo. 427; State ex inf. v. Continental Tobacco Co., 177 Mo. 1. There are many others to the same effect. Bnt in onr opinion those statutes are not like the act under consideration. Statutes of that character deal with the citizens, the persons of all counties and municipalities which have the stated number of inhabitants or which may hereafter have that number. In the very nature of things the population of those counties and municipalities would increase in numbers until those counties which did not have the requisite number at the time the statutes were enacted would probably have them some time in the future; and as soon as that number was reached in any county or municipality, it would be subjected to the operation of all such statutes. But that is not true in the case at bar. Here the act deals with courts, institutions of the State, and not persons. Courts have no power to increase or decrease their number in any county or municipality ; and it would be the merest conjecture to say that the Legislature might organize another separate judicial circuit composed of only one county without giving it a criminal court, and provide two judges for said circuit court. This act does not even deal with conditions, courts or institutions, much less with property or persons, but with mere abstract possibilities, which are clearly beyond the legislative domain.

The words of the act, “or may hereafter constitute a special judicial circuit,” mean the same as though the act had read as follows: “In all counties in this State which now constitute, and in all counties in which the Legislature may hereafter inaugurate a separate judicial circuit with two judges of the circuit court, and having no criminal court, the clerk shall tax and collect a docket fee of three dollars,” etc.

If the act, as passed by the Legislature, is valid, and inoffensive to the constitutional provision mentioned', then clearly the act before suggested would also be valid and inoffensive thereto had it been enacted in the form above stated, for the simple reason that the Legislature alone could create such additional circuit courts; and if the lawmakers of the State can, by making mere reference in an act to the power of subsequent Legislatures to enact laws similar to the one containing such reference, thereby convert a confessedly local and special law” into a general law, then all distinction between local and general laws is completely destroyed, for the obvious reason that subsequent Legislatures derive their power and authority to enact laws from the Constitution of the State, and not from any previous Legislature; and the reference made by one General Assembly to the powers of succeeding ones adds nothing whatever to their power or authority.

A question very similar to this was involved in the case of State ex rel. v. Messerly, 198 Mo. 351. There section 5005, Revised Statutes 1889, prescribed fees which should be allowed justices of the peace throughout the State, for the several duties they might perform, and they were entitled to no other compensation : ‘ ‘ The amendment to that section in 1899, was in these words: ‘Provided, that in cities having a population of fifteen thousand and. under thirty-five thousand and lying wholly within one township, except cities operating under special charters, all fees collected by justices of the peace in criminal cases shall be turned into the county court, and said court shall deposit said fees with the county treasury. The justices of the peace shall account to the county courts and turn in' all such fees at each regular meeting of the court. In lieu of all fees in criminal cases the county court shall allow the justices of the peace the sum of fifty-dollars per month.’ [Laws 1899', p. 215.]” In the discussion of that amendment, Judge Gantt, in his usual clear and forceful manner, in speaking for the court, said:

“This amendment, if valid, went into effect August 20,1899. In 1901 the section was further amended so as to make the salary seventy-five dollars a month instead of fifty dollars. [Laws 1901, p. 174.]
“The county court of Pettis county accepted the amendment of 1899 as valid and controlling and began paying the justices of the p'eaPe for Sedalia township salaries from September 1, 1899, instead of allowing them fees under the general law in force prior to the enactment of the amendment of 1899.
“The defendants as judges of the county court now deny that relator is entitled to any fees, but must be content with the salary paid him by the county court for the time for which he now claims fees.
“It is conceded by all parties that the Act of 1899', amending section 5005', Revised Statutes 1889, did not and could not apply to any city in Missouri except Sedalia. No other city was in the special situation at that time, nor likely to be. The act was intentionally drawn to fit the peculiar circumstances surrounding Sedalia and to exclude all other cities in the State of like population. Section 53 of article 4 of the Constitution of Missouri provides: ‘The General Assembly shall not pass any local or special law ... regulating the fees or extending the powers and duties of aldermen, justices of the peace, magistrates or constables.’ The same section after enumerating divers other cases in which no special or local law shall be passed, further provides: ‘In all other cases where a general law can be made applicable, no local or special law shall be enacted. ’
“Few of the provisions of our organic law are so eminently wise and salutary as this last-quoted section of the Constitution. It is of the highest interest to the State that its laws should be general and operate as far as possible equally in all sections of the State and upon all subjects of legislation. This court has again and again defined what is a general and what is a special law, but in practical legislation it would be hard to define in one section a. more pronounced example of each than is found in section 3261 since the amendment of 1899. The original section as it stood prior to the addition of that proviso, was a general law which affected every justice of the peace in the State, whereas, the proviso was drawn with the greatest labor to insure that it should apply to but one township in the State, to-wit, Sedalia township. Notwithstanding the language of the act purports in some respects to be a general law,, the numerous exceptions in the proviso of 1899' pared it down until it was impossible for it to have the slightest effect on the fees and compensation of justices of the peace in any other township in the State. Indeed, the disguise is so flimsy that it needs neither argument nor citation of authorities to show that the proviso of 1899 was and is a mere local law applicable and intended to apply to Sedalia township alone, and hence is in direct conflict with section 53 of article 4 of the Constitution hereinbefore recited. The duties of a justice of the peace in a township containing a city of the specified inhabitants named in the act of 1899 are identical in every particular with the duties of a justice of the peace of a township containing a city of like inhabitants operating under a special charter, or a city not lying wholly within one township, so that the act might as well .have applied to every city of a certain specified population containing a certain number of churches and school houses. We think the circuit court properly held that the proviso of 1899 to section 3261, Revised Statutes 1899, was unconstitutional as a local and special law regulating the fees of justices of the peace.”

I will use against this act the same argument, and as near as may be the same language which Judge" Gantt used against this amendment, to-wit: Notwithstanding the language of this act purports in some respects to be a general law, yet the various provisions thereof designating the courts to which it should apply pared it down until it was impossible for it to apply to or embrace any other circuit court than that of Jasper county, for the reason this court will take judicial notice of the fact that no other circuit court exists in this State, under the conditions stated in this act. Indeed, the disguise is so flimsy that it needs neither argument nor citation of authorities to sho'VJ that the Act of 1901 was and is a mere local law applicable and intended to apply to the circuit court of Jasper county alone, and hence it is in direct conflict with section 53 of article 4 of the Constitution hereinbefore recited.

While under this act Jasper county has no criminal court, yet, according to its provisions, the duties of the two divisions of the circuit court thereof, as well as those of the judges, are identical in every particular with the duties of all circuit courts, and with the judges thereof, in all other counties of the State, which have no criminal court.

We are, therefore, clearly of the opinion that the Act of 1901 is unconstitutional, as a .local and special law regulating the taxation and collection of a docket fee of three -dollars in each and all cases filed in the circuit court of Jasper county, which, as shown by the record, aggregate annually several thousand dollars, a burden imposed upon the citizens of no other county in the State.

Y. The final insistence of counsel for appellant is that the act in question is void because it violates sections 3 and 10 of article 10 of the Constitution, before set out. Counsel, however, have not suggested auy reason whatever in support of their insistence, nor have they cited any authorities upholding their views in that regard. A question of such importance should not be decided without proper investigation and until after due deliberation, especially when a decision of that question is not necessary for a proper determination of the cause. We, therefore, express no views upon the last proposition presented, except as is incidentally stated in the first paragraph of this opinion.

For the reasons before stated, the judgment of the circuit court is reversed, and the cause remanded for a new trial.

Valliant, J., concurs; Graves, J., concurs in all except as to what is said as to the sale of justice, and concurs in the result; Lamm, P. J., dissents.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    A. G. YOUNG, Administrator of Estate of PANSEY MIDDLETON, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    March 31, 1910.
    1. NEGLIGENCE: Killing Person: Damages “As Penalty.” The amendment of 1905 to Sec. 2864, R. S. 1899, providing that in case of the negligent killing of a person, the corporation “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand and not exceeding ten thousand dollars, in the discretion of the jury,” is a penal statute. The words “as a penalty” add nothing to the meaning or effect of the section as it was prior to the amendment. The section has always been held to be-a penal statute.
    2. -: -: -: Fixed by Jury: Constitutionality. The governmental function of declaring an act a crime or other offense against the law, to which a penalty may be affixed, can be exercised only by the legislative department, and cannot he delegated; but the said amendment of 1905 to said section 2864, placing a minimum and a maximum limit to the-amount of the penalty, and permitting the jury to fix the damages at any amount between those limits, in its discretion,, was not a delegation of a legislative function, and is not unconstitutional. It simply permits the jury, within limits, to adjust the penalty to the circumstances of different cases.

      3. -: Right to Clear Track: Actually Seeing Inspector. Where the engineer and fireman were entitled to a clear track and were not chargeable with the duty of being on the lookout for the inspector on the track, defendant is liable for his death, only if they actually saw him in time to have averted the accident under the conditions and with the means at hand.
    4. -: -: -: Evidence of Both Sides. Where there was no testimony on plaintiff’s part as to when defendant’s engineer and fireman first saw the peril of deceased on the track, but they testified that they saw him at a certain point, and there is other evidence on the part of plaintiff that the train could, by the exercise of reasonable care, have been stopped between the place where they said they saw him and the point of accident, the issue becomes one for the jury, under the humanitarian doctrine, though .deceased was guilty of contributory negligence. And in such case the jury are not bound to accept the statement of the engineer and fireman that when they first saw deceased, he jumped off of his velocipede, ran down the embankment, stopped, turned back and attempted to remove the machine from the track, and while doing so was struck. That testimony, if true, would exculpate defendant, but the jury are not bound to believe it, although no verdict could stand unless the jury believed the other part of their story as to when they first actually saw deceased.
    5. -: Contributory: Not Involved: Instruction: Humanitarian Theory. Where the evidence shows deceased track inspector was negligent, an instruction which assumes, or at least au-' thorizes the jury to find, that he was at the time of the accident on the track in the due performance of his duties, from which an inference might improperly be drawn that he was where his duty called him and was not therefore negligent, is misleading. It brings into the case a matter which should not be considered by the jury. But if that were the only error it would not be reversible.
    6. -: Unaware of Peril. The instruction should not assume that the engineer, when he saw deceased on the track, knew he was unaware of his peril.
    7. -: Sounding Whistle. Where deceased was on a bridge when he was first seen by the engineer, it is error to permit a recovery based on a failure to sound the whistle, when it is apparent that the only way to avoid the accident was to stop the train.
    8. -: Humanitarian Doctrine: Instruction: Except for Wanton, etc. Defendant’s instruction that there can be no recovery unless the conduct of its servants was “wanton, wilful and reckless,” in a case based upon tbe humanitarian doctrine, should be refused. The law recognizes no degrees of negligence. The damages recoverable are not compensatory, but entirely penal, and in fixing the penalty the jury have a right to consider the conduct of the negligent party beyond the mere finding that he was negligent; they may consider whether the conduct which resulted in the accident arose from mere inattention, or was wilful, wanton or reckless, but, whatever its character, if it was negligent, plaintiff is not barred a recovery simply because that conduct was not wanton, etc.
    Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.
    Reversed and remanded.

      M. L. Glardy and Edit). J. White for appellant.
    (1) Section 2864 of the Damage Act, as amended in Laws 1905, pp. 136-7, is unconstitutional, because in actions against railroad companies it delegates to the jury the fixing of a penalty, on a sliding scale, at any sum from $2000 to $10,000, within their discretion, without furnishing any lawful basis for such discretion. It delegates to the jury a legislative or judicial function and furnishes a special unreasonable basis of recovery as against railroads, thus denying them the equal protection and benefit of the laws, in violation of Sec. 30, Aid. 2, of the Missouri Constitution, and of the Fourteenth Amendment to the Federal Constitution. Railroad v. Railroad Com., 16 Am. & Eng. R. Cas. 14; Cigar. Makers ’ Union v. Goldberg, 61 Atl. 457; Railroad v. Reed, 158 Ind. 25; Schroeder v. Railroad, 41 la. 344, 47 la. 375; Railroad v. Pontius, 52 Has. 264; Johnson v. Railroad, 43 Minn. 222; Howard v. Railroad, 207 U. S. 492; Connolly v. Union Pipe Co., 184 U. S. 540. (2). (a) Plaintiff’s cause rested alone oh conjecture at the close of her evidence, as none of her witnesses saw the deceased at time of the collision, or knew what he was doing, and as no presumption of negligence could be indulged in, under the circumstances, no cause was made. Smith v. Railroad, 113 Mo. TO; Howard v. Railroad, 173 Mo. 524; McGrath v. Transit Co., 197 Mo. 97. (b) The evidence of the plaintiff shows that the deceased, with knowledge of the train which would pass him at that point, voluntarily got upon the track, upon a conveyance he could not easily remove, and continued to ride with his back toward the train he knew was approaching, without Looking back; he was, therefore, guilty of such contributory negligence as prevented a recovery for his death. 2 Thompson on Neg., secs. 1768, 1769, 1778. (c) The evidence of plaintiff’s witness, Oehler, who saw the deceased just before the collision, being to the effect that he never looked back for the train or stopped to listen, after getting on the velocipede, as long as he was within his vision, showed that his negligence continued down to the time of the accident and was contemporaneous therewith. The last-chance doctrine could not apply, and this negligence prevented a recovery. Holwerson v. Railroad, 157 Mo. 221; Mulloy v. Railroad, 84 Mo: 270. (d) The petition being based upon the “willfulness and wantonness” of the injury, and the evidence failing to show that the employees in charge of the engine saw the deceased in time to avoid the accident by reasonable care, even, there was a failure of proof of the cause of action set up. Raming v. Railroad, 157 Mo. 507; Behen v. Railroad, 186 Mo. 439; Owens v. Railroad, 95 Mo. 180; O’Brien v. Transit Co., 212 Mo. 67. (3) (a) The first instruction for plaintiff, in predicating a recovery “if the deceased was engaged in the line of his duty, inspecting said track, on said speeder, ’ ’ authorized a recovery on a theory on which there was not only a total absence of evidence but which was in the face of all the evidence in the record on this phase of the case, thus changing the status of the deceased from that of a trespasser to that of an employee rightfully located in a dangerous place, (b) The first instruction also based a right of recovery upon the failure of the engineer to use the appliances at hand to stop the train. This was directly in the face of tbe undisputed evidence in tbe cause, as tbe evidence was to tbe effect that be used all tbe appliances vigilantly and skillfully from the very instant that deceased appeared to him , on tbe track. That tbis assumption of such a material fact in issue in tbe cause was reversible error, is squarely held in tbis State. Williams v. Railroad, 96 Mo. 275. (c) Tbe first instruction also abandoned tbe idea of “wantonness or willfulness” in striking tbe deceased and predicated a liability on tbe mere fact of negligently striking him, thus abandoning tbe theory of a liability under which tbe petition proceeded in setting up tbe cause of action. To1 plead an assault and prove a negligent injury is held' to be a departure, in tbis State. Raming v. Railroad, 157 Mo. 507; Beben v. Transit Co., 186 Mo. 439. (d) And by tbe fifth instruction for plaintiff tbe jury were told to assess tbe damages at any sum between two and ten thousand dollars, although tbe evidence showed no facts at all as a basis for any pecuniary recovery, other than tbe death of tbe deceased. If the Damage Act, as amended1 in 1905, can be upheld at all, it is penal to tbe extent of tbe $2000' fixed by tbe Legislature and compensatory between this sum and tbe maximum recovery, and without some evidence as a basis for a pecuniary recovery tbe minimum recovery alone can be bad. Coover v. Moore, 31 Mo. 574; Philpotti v. Railroad, 85 Mo. 168; Carroll v. Railroad, 88 Mo. 247; Casey v. Railroad, 116 Mo. App. 235, 205 Mo. 721. An instruction on damages, leaving it to tbe unbridled discretion of tbe jury to assess damages, without legal basis for tbe computation, or without any elements for tbe assessment thereof — whether tbe damages are compensatory or exemplary — has always been held to be error, in tbis State, prior to tbe enactment of tbis statute. Hawes v. Stockyards Co., 103 Mo. 66; Gross v. Railroad, 50 Mo. App. 623; McGowan v. Ore Co., 109 Mo. 518. (4) As the evidence for the plaintiff showed nothing at all on which to base a pecuniary recovery, the court should have given the instructions asked, limiting the recovery to the minimum amount under the statute. Goss v. Railroad, 50> Mo. App. 623; McGowan v. Ore Co., 109' Mo'. '518; Schaub v. Railroad, 106 Mo'. 74; 2 Sedgwick on Dam. (8 Ed.), sec. 577.

      John H. Flannigam, B. A.'Mooneyham and B. M. Sheppard for respondent.
    (1) Section 2864 of the Damage Act, as amended by Laws 1905, pp. 136-7, is constitutional. It applies to every corporation or individual engaged in the business of a common carrier; it does not exempt any. Ex parte Handler, 176 Mo. 383; Eling v. Hickman, 172 Mo. 257; State ex rel. v. Woford, 121 Mo. 161; State ex rel. v. Yancey, 123 Mo. 381; Spaulding v. Brady, 128 Mo. 653; State ex rel. v. Higgins, 125 Mo. 364; O ’Connor v. Transit Co., 198 Mo. 622; Taylor v. Transit Go., 198 Mo. 915; Coffey v. Carthage, 200 Mo. 616; McFarland v. Railroad, 175 Mo. 422; Humes v. Railroad, 82 Mo. 221; Carroll v. Railroad, 88 Mo. 246. '(2) (a) At the close of the plaintiff’s case the evidence showed that the engineer in charge of defendant’s locomotive and train of cars saw the deceased when the train was a quarter of a mile from the spot where deceased was struck and killed; that at the time deceased was discovered by the engineer deceased was in a perilous position, that is to say, on a trestle and approaching a bridge where it was impossible for him to jump off the track; that deceased continued upon the speeder and from all indications was unaware of the approaching danger; that the engineer did not give any warning, sound the whistle, ring the bell, or apply the brakes, until an instant before his engine struck and killed the deceased; that if he had sounded his •whistle, given an alarm, or made use of the appliances he had at his command to stop his train when he first discovered the deceased, the fatal accident would have been prevented. The establishment of these facts was sufficient to submit this case to the jury. Lynch v. Railroad, 208 Mo. 1. (b) The negligence of the deceased did not license defendant’s servants in charge of its train to kill him, when, by the exercise of ordinary care, after they discovered the deceased in his perilous position, they could have sounded the whistle, and stopped their train in time to avoid the collision. Lynch v. Railroad, 208 Mo. 1; Kelley v. Railroad, 101 Mo. 67. (c) The fact that deceased was guilty of contributory negligence would not bar a recovery if the engineer, after discovering deceased upon the track, might by the exercise of ordinary care have prevented the injury. Lynch v. Railroad, 208 Mo. 34; Eppstein v. Railroad, 197 Mo. 720; Hinzeman v. Railroad, 182 Mo. 611; Morgan v. Railroad, 159 Mo. 262; Williamson v. Railroad, 139 Mo. App. 481. (d) Whether the evidence of the engineer was true as to what the deceased did just prior to the time he was struck, was a question of fact for the jury. (3) Plaintiff’s first instruction is not subject to the criticism made by the appellant. This instruction was taken substantially from the instruction in the case of Morgan v. Railroad, 159 Mo. 262. (a) The evidence clearly shows that the deceased was engaged in the line of his duty and was inspecting the track; the fact that he was on a speeder instead of walking along the track would not show that he was not engaged in the line of his duty, (b) The next objection to this instruction is that the evidence showed that the engineer used all the appliances vigilantly and skillfully from the very instant that the deceased appeared to him on • the track. To arrive at this conclusion all of the evidence of the plaintiff to the effect that no alarm was’ given and that the air was not applied until after the engine had passed the bridge would have to be ignored; that is to say, the court would have to discard the evidence of four or. five witnesses who are disinterested, and in their stead take the evidence of the trainmen who are interested. This fact was not assumed in this instruction but the jury were required to find that it was true before they could return a verdict in favor of the plaintiff, (c) The court did not err in instructing the jury 'in the language of the statute as to the amount of the penalty they should find in favor of plaintiff, nor in refusing defendant’s instructions which required the jury to limit the amount of recovery to nominal damages only, and to two thousand dollars. R. S. 1899, sec. 2864, as amended by Laws 1905; Van Housen v. Riggs, 11 How. 461; Casey v. Transit Co., 116 Mo. App. 247; Anderson’s Law Dictionary; 30 Cyc. 1335; State v. Sheppard, 192 Mo. 497; RaiJroad v. Sullivan, 59 Ala. 272; Railroad v. Lansford, 42 C. C. A. 160; Railroad v. Shearer, 58 Ala. 672; Railroad v. Landers, 98 Ala. 293; Matthews v. Warner, 26 Am. Rep. 396; Buckler v. Railroad, 112 Ala. 146; Railroad v. Burgess, 16 Ala. 509; Matthews v. Warner, 29 Grant 507; Preuchey v. Aecleson, 43 N. E. 146; Thompson on Negligence, sec. 130; Wheeler v. Boles, 163 Mo. 398; Gusman v. Elect. Co., 173 Mo. 654; Gamache v. Johnston Co., 116 Mo; App. 596; Ashley v. Earley, 11 Mo. App. 79 ; Smith v. Pordyce, 190 Mo. 130; Potter v. Railroad, 136 Mo. App. 125; 29 Cyc. 1491.
   VALLIANT, J.

This suit was instituted, by Pansey Middleton, in her lifetime, then a minor, suing by her curator; she recovered a judgment for five thousand dollars against the defendant for the death of her father, whose death she alleged was caused by the negligence of the servants of the defendant railroad company in operating one of its trains. After the cause was brought to this court by defendant’s appeal, the plaintiff died and the cause was revived here to be prosecuted in tbe name of A. G. Young, tbe administrator of her estate.

Tbe petition states that tbe plaintiff’s father was in tbe service of tbe Missouri Pacific Railway Company as a section band; a part of bis duties was to go over a section of tbe road at times and inspect its condition; that on tbe day in question be was passing over tbe road on a railroad velocipede, commonly called a speeder, when be was struck by an engine drawing a train of cars belonging to tbe defendant, tbe Iron Mountain Railway Company, and killed; that defendant company was running its train over the Missouri Pacific Company’s track by license to do so. Tbe statement of tbe cause of action is that tbe servants of the defendant company saw tbe deceased on tbe track, saw that be was unaware of tbe near approach of tbe train, and they then and there became aware of bis perilous position in time to have prevented striking and injuring him by tbe exercise of ordinary care, by stopping or placing their train under control, or sounding tbe usual danger signals, but “negligently, wilfully and wantonly” failed to úse tbe appliances at band to stop or place tbe train under control or sound tbe danger signal, failed to ring the bell or sound tbe whistle, but ran tbe engine against the plaintiff’s father and killed him. Tbe prayer of tbe petition was that tbe defendant be adjudged to forfeit and pay tbe sum of ten thousand dollars and that plaintiff recover that sum and costs. Tbe answer was a general denial and a plea of contributory negligence.

At tbe trial, when tbe plaintiff was about to begin to introduce ber evidence, tbe defendant interposed an objection on tbe ground that tbe petition failed to state facts sufficient to constitute a cause of action, in that it was founded on tbe Act of the General Assembly entitled “An act to amend section 2864 of chapter 17 of tbe Revised Statutes of tbe State of Missouri, 1899, entitled ‘Damages and contributions in actions of tort,’ approved April 13, 1905, Laws 1905, p. 135, which act was unconstitutional because it was in contravention of section 30, article 2, of the Constitution of Missouri, and of the Fourteenth Amendment to the Constitution of the United States. The objection was overruled and exception saved. The same point was also subsequently made in instructions asked by defendant and refused, and also in the motion for a new trial.

I. As the question of the constitutionality of the Act of 1905 reaches to the foundation of the case we will consider it before going into the facts of the case. We do not understand appellant to challenge the validity of section 2864 as it stood until amended by the Act of 1905, but the challenge is to the section as amended.

Section 2864, Revised Statutes 1899', has been so long in our statutes that its terms are familiar to every one and it need not be literally quoted here. In general terms it provided that when a person should die from an injury received through the negligence of an officer, agent or servant engaged in running a locomotive, car, etc. (naming other transportation vehicles), the corporation or person owning the vehicle “shall forfeit and pay for every person or passenger so dying, the sum of five thousand) dollars, which may be sued for,” etc. The Act of 1905 made several amendments to that section, but the only one to which our attention is now called is in reference to the clause just quoted, which was amended to read as follows: “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for,” etc.

Of that amendment the learned counsel for defendant say: “In other words, this Session Law being highly penal, while the Legislature, as a police regulation, could fix any reasonable sum as the value of a man’s life, or by way of punishment for the death of a human being, hilled by negligence, this is peculiarly a legislative function and the Legislature could not abrogate this function, or delegate the exercise thereof to a trial jury, without establishing some lawful basis for the jury’s discretion.”

The words, “as a penalty” inserted by the amendment add nothing to the meaning or effect of the section; we have always held it a penal statute, but the placing of a minimum and maximum limit to the amount of the penalty, introduces an entirely new feature and it is of that that appellant complains.

Appellants contention is that the Act of 1905, essaying to confer on the jury a discretion, within specified limits, of fixing the amount of the penalty, is in effect an attempt to deprive appellant of its property without due process of law which is forbidden by section 30, article 2 of the Constitution of Missouri, and also by the Fourteenth Amendment to the Constitution of the United States.

The governmental function of declaring an act a crime or other offense against the law, to which a penalty may be affixed, can be exercised only by the legislative department, it cannot be delegated; to that extent the appellant is correct in its position. And it is also correct to say that the prescribing of the punishment or penalty is a legislative function that cannot be delegated, for example, the General Assembly could not forbid the commission of a certain act and say that one convicted thereof should be deemed guilty of a felony or misdemeanor and suffer such punishment as the jury might see fit to impose. But when the General Assembly has declared an act either a crime or negligence deserving a penalty and has prescribed the punishment or penalty within limits, not less or more, it is not a delegation of legislative power to leave to- the jury the fixing of the extent to the punishment or amount of the pecuniary penalty, within the prescribed limits, to be applied to the particular case. That has long been the course of criminal procedure in this State and even in states where it is not left to the jury it is left to the court to fix the penalty within the prescribed limits. Indeed the Legislature could not without inequality and injustice, in most cases, prescribe a fixed penalty, because the circumstances under which a particular act is done usually distinguish it in degree of offense from another similar act forbidden by the same statute. It has been from time immemorial in England', from whom we inherited the common law, and in this country, for the legislative department of the government to prescribe the punishment or penalty, within limits except in certain cases, and leave it to the courts to fix the extent in each case. In Ex parte Dusenberry, 97 Mo. 504, the petitioner was indicted for a crime for which it was prescribed that on conviction he should “suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” It was there claimed that the law was unconstitutional because it delegated to the jury the discretionary power above indicated. But this court said that there was no doubt but that ‘ the Legislature may lawfully vest in the triers of fact a power to determine the punishment within certain limits.” If the G-eneral Assembly may lawfully leave it to the discretion of the jury in such case to deprive a man of his life or his liberty for such period as they may determine, without violating the “due process of law” clause of the Constitution, it does not violate that clause when in a case of this kind it leaves it to the discretion of the jury to assess the penalty at not less than two thousand or more than ten thousand dollars. We have examined the cases referred to by the learned counsel for appellant in support of their contention, but we do not think they reach the point in question. In Louisville & Nashville Railroad Co. v. Commonwealth, 99 Ky. 132, the Supreme Court of Kentucky held a statute of that State unconstitutional, hut, as we understand the ease, not on the ground that the statute left it to the jury to assess the amount of the fine “at not less than five hundred dollars nor more than one thousand dollars” but because it left it to the discretion of the jury to say whether an act was criminal or not. The Kentucky statute declared that if any railroad corporation should charge, collect or receive more than “a just and reasonable rate of toll or compensation for the transportation of passengers or freight” or for the use of a car, it should be deemed “guilty of extortion.” The point decided was that the statute did not say what rate of toll or compensation should be deemed “more than just and reasonable” to constitute the crime but left that to the jury; it left the jury to say whether or not a certain act was a crime.

The decision by a Federal judge in Tennessee, also cited, is to the-same effect. The New Jersey case also cited by appellant, as we understand it, holds substantially as we have above held. [Cigarmakers’ Union v. Goldberg, 72 N. J. L. 214.] The New Jersey court construed its statute to mean that the penalty between the minimum and the maximum limits was unconstitutional because it “was to be determined by the party to be benefited thereby,” and after so saying it used this language: “The fixing of the precise legal penalty to be imposed must be essentially either a legislative function, in which only general considerations can have weight, or a judicial function in which general considerations may be modified by special circumstances.”

The learned counsel in their brief concede “that damage acts which subject railroads to additional penalties over those which may be assessed against private individuals may be upheld because of the peculiar hazardous nature of the business of railroading rather than upon the mere occupation of railroading” (as indeed has been too frequently decided to admit now of a question), but they say that “before such statutes can be upheld they must be based upon the dangerous nature of railroading or they will furnish an illegal classification.” And they conclude their- argument on this point by saying: “And where, as in this instance, the statute is susceptible of enforcement so as to subject different railroads to various and different penalties for practically the same acts, it certainly violates the constitutional provisions intended to protect all classes of citizens from such unequal and unjust discrimination.” If there was never any difference in the circumstances attending the killing of different people by the negligent running of trains, etc., the Legislature might prescribe a fixed amount as the penalty in every case, as indeed was done in the statute in question before the amendment, but experience seems to have taught the lawmakers that different circumstances covered different cases and they saw fit to provide that the jury might within limits adjust the amount of the penalty to the circumstances of the particular case; the discrimination allowed is not against the particular defendant but on account of the circumstances of the particular case. We hold that the Act of April 13, 1905, Laws 1905, pages 135-137, is constitutional.

II. We come now to the case on its merits. The plaintiff’s testimony tended to show as follows: Her father was a section hand in the employ of the Missouri Pacific Company; one of his duties was to walk over the track at certain times from Webb City to Carthage to inspect the road; it was against the rules of the company and contrary to his orders for him to ride a velocipede over the road on his inspection route, but on the morning of the accident he had obtained a velocipede and was riding over his route; he was going east towards Carthage, and the train which struck him was going in the same direction; the point of the accident was about 150 feet east of the east approach to the railroad bridge over Center Creek and near a water tank. Coming from Webb City the road' (or the part we are concerned with) runs northeast until it reaches a point about 500 or 600 feet from Stout’s creek, whence it curves east at an angle of 3 ° '56' for a distance of 600 or 700 feet; from the east point of the curve to the water tank and beyond the track is straight; from the east point of the curve to the water tank the distance is 836 feet; according to plaintiff’s testimony the point where the deceased was struck was about 100 feet east of the water tank. There is a trestle west of the bridge 333 feet long, which forms the bridge approach; the bridge is 150 feet long. It was down grade from the east point of the curve to and beyond the place of the accident; the train was running 35 miles an hour. No witness for the plaintiff saw the accident. The one who came nearer seeing it than any other testified that he saw the deceased mount his velocipede and start down the road. He said: “I turned around and started off and looked again, he was on the speeder crossing the trestle, at that time the train was coming, I heard it at the Carterville crossing whistle.” The Carterville crossing was a mile west; there was no other whistle sounded until the train got across the trestle. Afterwards the witness said that he heard the whistle for the Carterville crossing before the deceased got on the road. He was asked if there was anything to prevent the engineer and fireman from seeing the deceased on the road and he answered, “nothing at all that I could see.” Neither the question nor the answer indicated at what point on the road the train was when the deceased was in view but the witness had just been speaking of the public road crossing, which by the diagram in evidence was 143 feet from the west end of the trestle and 476 feet from the west end of the bridge; the witness however stated it was over a quarter of a mile to the water tank. We infer the witness referred to that crossing as the point from which the engineer and fireman could see the man on the track. Witness saw the man twice after he got on the track, first he was on the trestle and the train was coming, the witness heard it, second “he was right at the end of the bridge” (which end not stated1). “The engine ran in so close I couldn’t well see him.” “Did the engineer or trainmen put on the air or make any effort to stop that train? If they did I couldn’t hear it at all.” Witness was 150 yards from the track when the train passed. When the man on the velocipede and the engine passed into the bridge witness lost sight of both and did not see the collision. The whistle gave one long blast after it crossed the bridge. On cross-examination witness.was asked if the engineer could see the man on the bridge until he got around the curve where the track was straight; he answered, “He couldn’t see him until he got around the curve but he could see through it alright.” Asked by the court how far it was from the curve to the west end of the bridge witness said it was about half a quarter, “after he comes around this curve he ought to see him, he could see though about half a quarter.” Witness gave it as his opinion that the engineer could have stopped on the trestle. He had never had any experience running an engine. Asked if he had ever seen a passenger train equipped as this was going 35 miles an hour down grade attempted to be stopped within that space, said he had not. Another witness, a boy 14 years old, did not see the man before the collision, but saw him when he was thrown up in the air by the striking of him bv the engine; his attention was drawn to the scene by hearing the whistle and the escaping steam and in that instant he saw the man thrown up before the engine. He had heard no whistle before that. Another witness was on an electric car that passed near the scene. He testified that when he first saw the man on the speeder “he was near the overhead trestle work” and passing east; “he was going a reasonably slow rate of speed” and watching the track; the car witness was on soon made a turn which shut the man from view, “ just then I noticed the engine approaching the east end of the main part of the bridge, the engine when I saw it was almost running into the overhead trestle work of the bridge, ’ ’ the turn of the car obstructed further view and the witness saw no more of it. He had heard no whistle up to that time. “Q. How long afterwards before you heard any at all? A. "Well, seconds seemed like minutes right there. I can hardly tell how long; it was a very short duration, because the street railway car hadn’t struck the end of the trestle work when I first heard the rumbling of the train, in any manner or form.” On cross-examination he said the man on the speeder was about the middle of the bridge when he first saw him and was twenty or thirty feet east of the bridge when the engine came on the west end of the bridge. Witness did not see the collision. One witness who said he had experience as a railroad locomotive engineer sixteen years gave it as his opinion that this train, under the conditions named, running thirty-five miles an hour down grade could have been stopped in a distance of 200 feet.

Another witness, a boy fourteen years old, testified that he was driving cows to pasture at a distance of half a mile east of the bridge; he heard the whistle and ran to head off the cattle from crossing the track, andi there he saw the engine coming; it ran a quarter' of a mile east of the water tank before it stopped, then it backed. A witness who was a passenger on the train testified that he heard no whistle or application of the air until they were on or near the bridge, then he heard or felt the air applied and the stop was quite sudden, the train stopped with the rear coach opposite to the water tank.

The foregoing is the substance of the evidence on the part of the plaintiff tending to show that the engineer or fireman saw the 'deceased in time to have averted the accident by the exercise of ordinary care.

The engineer and fireman, witnesses for defendant, testified that they did not see the deceased until they had passed out of the curve and came into the straight track, then they both saw him. The engineer’s testimony was: “As I came around the curve to the Center Creek bridge I seen the man crossing the bridge on the speeder. I reached for the whistle cord with one hand and the brake valve with the other. At the time the man got at the end of the bridge he got off the speeder and got down the dump clear off the right of way and as soon as he stopped himself he ran back up and caught hold of the speeder and pulled one end of the speeder on the ties and remained in that position until I struck him. It was only a second or two from the time the man stopped himself as he jumped down the embankment until he got back to his speeder.” He said he was about 150' yards distant from the man when he first saw him, about 300' feet from the.west end of the trestle; as soon as he saw him he used -all the appliances at hand to stop the train; the track at the point was down grade about one per cent. In his opinion the train going as it was could have been stopped in 600 or 700 feet, not less. The fireman’s 'testimony was to the same effect.

At the close of the plaintiff’s evidence and again at the close of all the evidence defendant asked an instruction to the effect that plaintiff was not entitled to recover, which was refused and exception saved.

In the above statement we have omitted a great deal of evidence tending to show that the plaintiff’s father was himself guilty of negligence that contributed to the accident, and this we have done because that is a fact conceded, at least it is not contradicted. The plaintiff’s petition states a cause of action based ■on the humanitarian doctrine alone, and the instructions under which the cause was submitted to the jury were on that theory. The petition states that the servants of the defendant in charge of the engine saw the plaintiff’s father in his position of peril in time to have saved him if they had used ordinary care, but that they negligently, wilfully and wantonly failed to use the appliances at hand to do so.

This is not a case in which the defendant’s servants were chargeable with the duty of being on the lookout for a person on the track, hut it is a case where they had a right to a clear track and no cause to suspect that the track would not he clear, therefore it is not a case where it can he said that the defendant is liable if the engineer and fireman saw or by the exercise of ordinary care could have seen the position of danger in due time, hut the defendant would he liable’ only if the men in charge of the engine actually saw the deceased in time to have averted the accident under the conditions and with the means at hand. We have quoted the defendant’s evidence on this point not for the purpose of weighing it against that of the plaintiff hut only to see how far if at all it aided the plaintiff’s-evidence in making out a ease. The defendant’s is the • only direct evidence, however, to the effect that the-engineer and fireman did see the deceased before the collision, hut it is to the effect that as soon as they saw him they did everything in their power to save him hut it was too late. When they saw him they said they were about 150 yards distant on a downgrade going thirty-five miles an hour. One witness for the plaintiff testified that from the Lakeside crossing the engine could have been stopped on the trestle, which, according to the diagram, even counting to the-extreme east end of the trestle, would he about 375 feet. But that testimony was not competent, the witness had never had anything to do with running an engine, had' had no experience at all that rendered him qualified to* give an opinion on that subject.

The other witness who testified that the train in question under the conditions named could be stopped within 200 féet was a man whose experience qualified him to express an opinion on that subject, therefore, his was competent testimony. "Whilst evidence of that kind is in the nature of what we call opinion evidence, yet it is something more than a mere opinion. "When a man has by long experience in running and stopping trains, observed the distance in which he has often under similar conditions stopped them, he knows as a fact in what distance it can ordinarily be stopped; conditions of course may vary, causing the stop to be more or less short or long of the space expected, and to that extent such testimony is a matter of opinion. This train was going thirty-five miles an hour on a down grade of one per cent; if it could be stopped in 200 feet, the stop would be in about four seconds of time. A jury cannot take judicial cognizance of the space within which a train under these circumstances ■could have been stopped, yet in weighing the opinion evidence they are bound to exercise their own common sense,- they were not bound to believe it because the witness had so testified, and if the jury in this instance had discarded the opinion of this witness as unreasonable, they would! have been in the lawful exercise of their prerogative in so doing. That was all the competent expert evidence, however, on the part of the plaintiff tending to show that the train could have been stopped sooner that it was. The testimony on the part of the defendant however tends to show that the train could have been stopped within 600' or 700 feet, and that looks reasonable. Now let us see within what distance it was stopped. From the point of the curve nearest to the bridge to the water tank was 846 feet; the evidence conflicts- as to how far the train ran beyond the water tank before it stopped; plaintiff’s evidence tends to show that the point of collision was .about 100 feet east of the water tank; the engineer said it was not over twenty or twenty-five feet, and that when the train stopped the rear coach was just opposite the point where the deceased lay; one of plaintiff’s witnesses makes that statement also, hnt another one said it ran a quarter of a mile beyond the tank and backed to the place of the accident. The train was estimated to be 120 or 200 feet long; there were two passenger coaches, a baggage car, the tender and the engine. Taking the engineer’s estimate the engine ran at least 150 feet heyond the water tank; that would make the whole distance the engine ran from the point, of the curve until it stopped 996 feet. Taking the plaintiff ’s witness who estimated that the train ran a quarter of a mile beyond the tank and hacked to the scene of the accident, even if we discount his estimate fifty per cent or more, the train ran considerably over 1000 feet from the point where the man came into view before i' stopped. The testimony of the passenger who said the air was not applied until the train was on the bridge and that the stop was quite sudden is also to be considered.

The engineer testified that he realized the man’s danger as soon as he saw him, but we need no testimony to prove that a man on a bridge in front of a fast coming train is in peril. It is true as insisted by appellant that the testimony of the engineer and fireman to the effect that the man had gotten off the velocipede and down the embankment where he was safe, and ran back again in face of the engine then very near him, is uncontradicted, but the court could not assume that the testimony was true; if the fact was as so testified it was a complete defense to the cause of action stated in the petition, hut whether it was so or not was a question for the jury and it was given to them to say. Under this condition of the evidence the court could not have done otherwise than submit the case to the jury.

III. The first instruction given at the request of the plaintiff was as follows:

"The court instructs the jury that if you believe from the evidence in this case that Pansey Middleton was at the time of her father’s death, the only minor child of Lewis Middleton, deceased; that no wife survived! him; that on February 11, 1905, this Missouri Pacific Railway Company owned the line of railway between Carthage and Joplin mentioned in evidence, and that the plaintiff’s father was at that time in the employ of said railway company as section hand, and as such was at the time of the accident complained of engaged in inspecting’ the tracks on that part of said railroad where the accident occurred, going east over said track on a railroad velocipede commonly called a speeder, and that about eight o’clock in the forenoon of that day while plaintiff’s father was engaged in the line of his duty inspecting said track on said speeder, a passenger train composed of a locomotive and train of cars operated by the St. Louis, Iron Mountain & Southern Railway Company, over and upon the tracks of the Missouri Pacific Railway Company, approached said Middleton from the west, and that at the point of the accident the track was straight with nothing intervening to obstruct the view of the trainmen for some distance, and that said Middleton became in great danger of being run over and killed by said train; that both the said engineer and fireman saw him from the time the train was about twelve .bundled feet away until he was struck and killed, and knew that he was unaware of the near and dangerous approach of said train; and that the engineer became aware of Middleton’s perilous position on said track in time to have enabled him with the exercise of ordinary care to have prevented the accident and avoided running the locomotive against him, by stopping or placing the train under control or sounding the usual danger signals, and that said engineer failed to use the appliances at hand to stop or place said train under control or to sound said danger signal hut ran the locomotive against said Middleton and killed him, and if you further believe from the evidence that the St. Louis, Iron Mountain & Southern Railway Company was authorized or permitted by the Missouri Pacific Railway Company to operate the train in question upon the tracks of the latter company at a point where the accident occurred, then the plaintiff is entitled to a verdict at your hands against the St. Louis, Iron Mountain & Southern Railway Company.”

That instruction assumes, or at least authorizes the jury to find, that the plaintiff’s father at the time of the accident was on the track in the due performance of his duty, from which an inference might improperly be drawn that he was where his duty then called him, where he had a right to be and therefore wa,s not negligent. If that was not the inference intended to be drawn then the fact was wholly irrelevant. It was immaterial under the theory on which the case was submitted to the jury whether he was there in the line of Ms duty or as a trespasser. The defendant would have owed a mere trespasser, under the evidence in this case, the same duty that it owed this man, that is, not to injure him after the engineer saw him and realized his danger if by the exercise of ordinary care it could avoid doing so. If that part of this instruction was intended or was liable to authorize the jury to find that the plaintiff’s father was not guilty of negligence in inspecting the track under the circumstances shown in the evidence, then it was error because there was no evidence that authorized such a conclusion ; the evidence showed he was negligent. There was evidence tending to show that he was a section hand and that it was his duty at times to inspect the track, and a witness for the plaintiff testified that at the time of the accident he seemed to be inspecting the track, but the plaintiff’s evidence also showed that he knew this train was coming. It was a regular passenger train on its schedule time; he stood by the track, according to plaintiff’s chief witness, apparently listening for the train; the witness heard it and the deceased must have heard it, then the deceased put the speeder on the track and started down the road as if to heat the train across the bridge. The evidence °wa.s that' he was forbidden to ride on a velocipede in going over his inspection route and to that extent he was on this occasion violating his orders. Perhaps if he had! not provided himself with the velocipede he would not have undertaken to speed down the road in front of a train that he knew was coming, but we do not attach any importance to that fact, it only is an item going to prove an immaterial fact, that is, that the deceased was guilty of contributory negligence. His duty did not call him to go on a long trestle and bridge so close to a coming train as to endanger his life, therefore the mere fact that he was there inspecting the road did not authorize the jury to find that he was there in the line of his duty. It makes no difference, under the only theory on which the plaintiff’s cause of action rests, whether the deceased was, at the time, in the line of his duty or was a trespasser, but the instruction authorizing the jury to take into consideration the fact that he was there in the due discharge of his duty throws into the scales weighing the evidence an item that should not be considered, a fact that tends to enlist the sympathy of the jury and prejudice the defendants. The jury was authorized by that instruction to find that the deceased was wholly in the right and the defendant wholly in the wrong. Perhaps if that were the only error in the instruction it might be ‘passed over on the idea that it was harmless, because it authorized a finding of an immaterial fact, but it was not the only error. There is another hypothesis in the instruction that should not have been submitted ; it authorizes the jury to find that the engineer and fireman not only saw the peril, bnt also knew that the deceased was unaware of the near approach of the train and failed to sound the whistle to warn him. There was no evidence that the engineer or fireman knew that the deceased was unaware of the near .approach of the train or that the sounding of the whistle would have done any good. When a man is seen heedlessly walking along a well heaten footpath inside the track in front of an approaching train, when it is apparent that he could easily step aside and he out of danger, the situation suggests that probably he is unaware of his peril; under those circumstances the duty should devolve on the engineer to sound the whistle to give him warning. But in this case the man was on the bridge when they first saw him; it was impossible for him to escape except to beat the train across where he could jump to the ground. This instruction authorizes a verdict for the plaintiff for the failure of the engineer to sound the whistle, that is, it authorizes a verdict for .the plaintiff if the engineer either failed to use ordinary care to stop the engine or to sound the danger signal. We cannot know from this verdict whether the jury found for the plaintiff on the ground that the engineer failed to stop as soon as he could or that they based the verdict on the fact that he failed to sound the whistle. There is nothing in the evidence in this case to indicate that the sounding of the whistle would have done any good. In fact the plaintiff’s expert witness, the railroad locomotive engineer of sixteen years’ experience, said that in such an emergency he would not apply the whistle; he said: “What’s the use going to whistle? You better try to stop without bothering the whistle.” In that respect this case is unlike Hinzeman v. Railroad, 182 Mo. 611, or Reyburn v. Railroad, 187 Mo. 565, or Eppstein v. Railroad, 197 Mo. 720. In either of those cases it seemed that if the engineer had sounded the whistle the life would have been saved. But nothing so appears in this case and it was error to instruct the jury that they could find for the plaintiff if they should find that the whistle was not sounded; nothing would have saved the life of this man, so far as we can judge from the evidence, except the stopping of the train. It was error to have given that instruction. The same error as to the sounding of the whistle runs through ° the second instruction.

IV. At the request of the defendant the court gave five instructions, and refused sixteen others. We do not deem it necessary to discuss each one of those sixteen refused instructions, it is sufficient to say that all that was good in them was contained in the five given, and what was not so contained was not the law, therefore the instructions were properly refused. Some of the refused instructions related to the measure of damages and were in that respect predicated on the proposition that the Act of 1905, amending section 2864, was unconstitutional. Others required the jury to find that unless the conduct of the engineer and fireman was “wanton, willful and reckless” the verdict should he for the defendant. We do not recognize degrees of negligence and whilst the terms “wanton, willful and reckless” are sometimes used in characterizing conduct yet, after all is said, the law applies only the word “negligent.” Negligence is a failure to perform a duty. The law recognizes degrees in care, very high care and ordinary care, hut the failure to exercise the highest degree of care required is only negligence, whilst failure to exercise ordinary care is also negligence, neither more nor less. Liability attaches from the failure to exercise the care required by the law-negligence — but when the liability is established, the character of the defendant’s conduct, whether merely inattentive, or willful, wanton or reckless, is a fact that may be sometimes considered in assessing the damages. If it be a case in which the damages as for compensation to the person injured be in question, the jury after assessing compensatory damages may, in a proper case, look into the character of defendant’s conduct to see if punitive damages should also be awarded. In the case at bar, however, the damages are not given as compensation to the party aggrieved, but as a penalty which the law prescribes for the negligent killing of a human being; it is all penal in its character and in fixing the penalty the jury have a right to consider the conduct of the negligent party beyond the mere finding that he was negligent; they may consider whether the conduct which resulted in the catastrophe arose from mere inattention, or was willful, wanton or reckless. That is what the jury does in assessing the punishment for a crime and it is what the amendment of 1905 to section 2864 authorizes the jury to do in assessing the amount of the penalty under that section of the statute.

For the errors in the plaintiff’s instructions above pointed out the judgment is reversed and the cause remanded to the circuit court to be proceeded with according to law.

All concur.