State ex rel. Jones v. Howe Scale Co.

BLAIR, C. This is a proceeding by the State of Missouri, at the relation of Seebert G. Jones, circuit attorney for the city of St. Louis, instituted in the circuit court of the city of St. Louis, against the Howe Scale Company of Illinois, a foreign corporation, for violating the statute (sections 3039 and 3040, R. S. 1909) prohibiting foreign corporations from doing business in this State without first securing a certificate or license authorizing them so to do. The judgment below was for plaintiff and the minimum punishment ($1000) was assessed against appellant. The principal questions argued in the briefs relate to the jurisdiction of the circuit court of the city of St. Louis, the capacity of the plaintiff to sue and the right of plaintiff to proceed under section 3040 except by indictment or information. It is also contended (1) that the portion of section 3040 which provides that all sums collected for violation of sections 3039 and 3040 “shall go to the revenue fund of the [66] county in which, the cause shall accrue,” is invalid by reason of being in conflict with section 8 of article 11, which provides that the “clear proceeds of all penalties, forfeitures and fines” shall belong to the school fund; and (2) that “under the Fourteenth Amendment to the United States Constitution, . . . neither plaintiff nor relator has any right to maintain this action. ’ ’ The amount involved is not sufficient to confer jurisdiction of this appeal upon this court and it remains to determine whether the character of the questions raised is such as to do so. Jurisdiction of Supreme Court: Constitutional Question: Distinguished From Construction of Statutes. It is not contended that the invalidity of that provision in section 3040 which directs that recoveries under it shall go to the revenue fund of the county (in this case the city) invalidates the entire section and act or any other part of it. It is conceded it does not do so. It is beyond dispute that if the penalty fixed by section 3040 falls within the language of section 8 of article 11, it must, when collected, go into the school fund, but this is a matter with which appellant has nothing to do as it pertains merely to the disposition of the money taken from it, after it has been collected, and is not at all a thing which now concerns appellant. [State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. l. c. 665.] The question as to who is empowered to institute and maintain the proceeding authorized by section 3040 is purely one of statutory construction, and, consequently, is not of such character as to confer jurisdiction of this appeal upon this court. There is no debatable question involving the construction of the Constitution of this State raised in the record which can be considered on this appeal, and, as a result, no warrant for this court’s assuming jurisdiction can be found in this branch of the case. [67] It is said in the brief, however, that ‘ ‘ the statutes of Missouri, as cited under previous points (sections 3039 and 3040, R. S. 1909) make no provision for prosecuting a foreign corporation in a civil action, and authorize no such process of law,” and it is contended that, therefore, “this action violates the Fourteenth Amendment of the Constitution of the United States. ’ ’ It is not contended that a statute providing for the collection of a penalty by civil action or the application of a common law civil remedy would infringe any provision of the Fourteenth Amendment, so that the sole contention of counsel in this connection is whether the statute involved in this proceeding makes such provision. Whether or not it does is a question of statutory construction and in no way involves a construction of the Fourteenth Amendment. The suggestion that appellant is by the statute or this action denied the right of trial by jury has no basis in either the statute or the record and was never raised in the trial court and cannot be relied upon now. No other reason being suggested or appearing which authorizes the retention of jurisdiction of this appeal by this court, the case is transferred to the St. Louis Court of Appeals. Brown, C., concurs. PER CURIAM. The foregoing opinion of Blair, C., is adopted as the opinion of the court. All the judges concur.