200 RAILWAY COMPANY V. STATE. [55
RAILWAY COMPANY V. STATE. Decided December 5, 1891. i. Indictment—When construed to be a complaint. If the statute which provides a penalty for failure of a railroad company to signal at a highway crossing (Mansf. Dig., sec. 5478) contemplates a recovery by civil action only, a judgment for the recovery of such penalty, based upon a pleading which is in form an indictment indorsed by the foreman and returned by the grand jury, is not open to collateral attack if such pleading is in substance a civil complaint prepared and signed by the prosecuting attorney, and was so treated by the trial court. 2. Statute void in part—When valid as to the remainder. If the provision in the statute (sec. 5478 of Mansf. Dig.) that one-half of the penalty for failure to signal should go to the informer and the other half to the county, conflicted with the constitution in force at the date of its passage, which provided that all penalties should go to the school fund (Const. 1868, art. 9, sec. 4), the remainder of the act is capable-by its own terms of being carried into effect consistently with the intent of the legislature. 3-Jurisdiction of subject-matter—When acquired. Where a case is colorably within a court's general jurisdiction, the court acquires juriScliction of the matters befoi-e it, notwithstanding the plead-ings are defective; and its judgment in the case cannot be collaterally questioned in a proceeding by certiorari. 4-Jurisdiction of person—Defective writ. Where the defendant is actually served with summons, the court acquires jurisdiction of his person, though the writ be defective or the service irregular. 5. Variance—Name. That defendant company is named a " railroad "_ company in the complaint and a "railway " company in the summons and judgment, is not a material variance. 6. Judgment—Validity. A judgment in favor of the county for the recovery of the statutory penalty is not void, although it should have been rendered in favor of the State or of an informer. CERTIORARI to Sebastian Circuit Court, Greenwood District. T. C. HUMPHRY, Judge.
ARK.] RAILWAY COMPANY V. STATE. 201 Dodge & Johnson and C. B. Moore for petitioner. 1. The penalty sought to be recovered herein cannot be recovereck by indictment, because sec. 5482, Mansf. Dig., provides for a suit by the prosecuting attorney in the name of the State, which means a civil action. • 2. Section 5478 is unconstitutional. It was enacted under the constitution of 1868. Acts 1868, sec. 34. Art. .9, sec 4, const. 1868, provides that all fines, penalties, etc., shall go to the school fund. The act provides that one-half .of the penalty shall go to the informer and the other half to the county. 3. The indictment is fatally defective. Bish., St. Cr., sec. 1043; Wharton, Cr. Pl. and Pr., sec. 163 ; 5 How. (Miss.), 150; Bish., Cr. Pro., vol. I, sec. 591; 28 Vt., 583. 4. Defendant was not properly served with process. Mansf. Dig., secs. 2132, 2139. The defendant did not waive this point. It only appeared by . a special appearance to move to quash the summons. This does not authorize judgment by default. 5 Ark., 383. . 5. There is a fatal variance between the summons and indictment. The indictment was against the railroad company ; the summons for the railway ; and the judgment is against the railway company. . 6. The judgment was in favor of the State for the use .of the Greenwood District, etc., whereas the statute provides that only half of the penalty shall go to the .county. 7. No evidence or proof offered or introduced to support the charge. James B. McDonough, Prosecuting Attorney, and W. E. Atkinson, Attorney General, for respondent. None of the seven reasons urged by petitioner can be taken, advantage of upon certiorari except one, viz., the constitutionality of the act. If, the act is void, the judgment is void. If the act is valid, the judgment is . valid because all the other objections are mere errors, and might have been
202 RAILWAY COMPANY V. 'STATE. [55 corrected on appeal. Section 5482, Mansf. Dig., does not make provision for the • manner of suing or the manner of recovery of said penalty. - If it did, the remedy would be cumulative. Sec. 212 -9. The act 'only provides that the-penalty may be sued for by. the p-rosecuting attorney. An' indictment is a complaint, and its presentation is suing for a penalty. It is a complaint sworn to by the grand jury. Whart., Cr. Pl. & Pr., se'c. 86 ; Bish., Cr. Pro.; vol. I, sec. 388 ; Starkie, Cr. Pl., 259 et seq; Anderson, Law Dic.; 4 Bl. Com .„ 302 ; Man g '. Dig., sec. 2100; 107 Mass., 194 ; 24 Wend., 507. The word suit includes not only a civil action, but also a criminal prosecution, as an indictment, etc. Ham-mond's Nisi Pr., p. 270; Bouvier, L. D.; 2 Pet., 464; II Fed. Rep., 251 ; 144 Mass., 137; 3 Bac. Abr., 542-4 ; 14 Pet., 566 ; 91 U. S., 375 ; 6 Wheat., 408 ; 4 Wall., 112. The remedy is cumulative and does not abrogate the common law remedy by indictment. 9 Barb., 161 ; '3 Ind., 447 Bish., St. Cr., sec. 164; 52 Ark., 54. The proper remedy is by indictrnent. 69 Md., 203 ; zo Ark., 1 45 ; 45 id., 387; Mansf. Dig., sec. 1963. If indictment 'is not the proper remedy, advantage cannot be taken by certiorari. A motion should have been made to quash, and, if overruled, an appeal taken. 41 Ark., 488 ; I Bish., Cr. L., secs. 419-20 ; Redfield on Railways, 515 : 18 ; 67 Am. Dec., 471 ; 75 id., 778; 34 Cal., 48 ; 91 Am. Dec., 672, and notes ; 6o Pa. St., 369 ; Ala., 579 ; ii Humph.; 217. 2: There is no provision regulating the form of summons against a corporation on an indictment. Sections 2132, 2142 refer to natural persons. Section 2139 is not mandatory. The summons should have been treated as amended to con-fo r ' m to the law. 32 Ark., 406; Mansf. Dig., sec. 5083 ; ib., secs. 5080, 4968 ; 32 Ark., 278 ; 22 id., 363; 37 id., 453 ; 8 id.,'316; 25 id., 97 ; 14 id., 59 ; 13 id., 414; 34 id., 682; 44 id., 410; 45 id., 34; 40 id., 528; 43 ul., 241. Defects in summons will be treated as amended when attacked col-laterally. The remedy is by appeal and not certiorari. 47 Ark., 376 ; 50 id., 115; 43 Ark., 241 ; 19 id., 306; 4 id.,
ARK .] RAILWAY COMPANY V. STATE. 203" 429 ; 22 id., 362 ; 5 id., 664; 36 id., 294. When a summons-. has in fact been served, it is the duty of defendant to appear: 34 Ark., 494; 43 id., 545. The judgment Cured the variance, and , the defendant vbr ived , it. It is cured by statute.. Mansf. Dig., sec. 21 I0 ; 30 Ark., x66 ; 35 id.,-384.- 3. Section 5478 is constitutional. Article 9, section -4, constitution i868, only provides hoW the school fund is made up. It is not all fines, etc., but only the net proceeds of such fines as shall accrue to the State. Under the act_ only one-hal! accrued to the State. The act of 1871 repeals that portion of the act of .1868 as gives one 7 half to the informer. 46 Ark., 450 ; 51 id., 559. After the act of March 31, 1883, the county is entitled to the whole of said fines,. etc. If the law giving the informer half is void, the most extreme view would be that the judgment is excessive. 51 Ark., 213. The county would then get all of it. At most it would only . be error, correctible by appeal. -37 Ark., 318. Even if unconstitutional as to the informer's half, the judgment is valid. The other part of the statute' prescribing the penalty would be good. 37 Ark., 356 ; 53 id., 490 ;. S. W. Rep., 130 ; 89 Mo., 564. 4. The record shows there was a hearing and evidence-introduced, and that cannot be contradicted. II Ark., 373. In such case . it is proper to take judgment by default.. Pierce on Railroads, 268 ; 32 N. H., 215. As to whether there was evidence or not, cannot be inquired into on cer— • tiorari. 35 Ark., 99. A• judgment without evidence is not void. 25 Ark., 60 ; 24 PaC. Rep., 393. 5. The indictment is good as against-attack by certiorari. 58 Me., 176; 4 Am. Rep., 258 ; 17 Ark., 580 ; 24 id., 122 29 id., 173; 17 id., 446 ; 44 id., 55 ; 37 id., 318; 43 id., 33. 6._ The petition should be dismissed and , the writ of cer-. tiorari quashed. Certiorari is only, allowed in two classes of caseS. See ..52 Ark., 221. Only jurisdictionaj defects-will, be noticed on certiorari, and the only jurisdictional question here is the constitutionality of the act. , 51 Ark.,.
204 RAILWAY COMPANY V. STATE. [55 281 ; 2 So. Rep., 559 ; 62 N. H., 184 ; 14 S. W. Rep., 108 ; _71 Cal., 322, Dodge & Johnson in reply. Cite, in support of the unconstitutionality of. the act, End-lich, Int. St., sec. 521 ; .22 Kans., ; Cooley, Const. Lim., -secs. 156-224. HEMINGWAY, J. The State, suing for the use of Sebastian -county, recovered a judgment against the petitioner for the penalty fixed by the statute for a failure to ring a bell br sound -a whistle in approaching a highway crossing ; and the petitioner seeks to quash that judgment in this court upon a cer-tiorari. The statute is as follows : "A bell of at least thirty -pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and ; shall be rung or whistled at the -distance of at least eighty rods from the place where said .road shall cross any other road or street, and shall be kept ringing or whistling until it shall have crossed said road or street, under a penalty of 04200 for every neglect, to be paid by the corporation owning the railroad, one half thereof to go to the infdrmer, and the other half to go to the county ; -and the corporation shall also be liable for any damages which shall be sustained by any person by reason of such . 'neglect." Mansf. Dig., sec. 5478. The grounds upon which the relief is asked are as fol-. lows : f. Because the statute which prescribes the duty provides that penalties for its violation may be recovered in suits by the prosecuting attorney in the name of the people of the State of Arkansas, and this excludes a proceeding by indictment. 2. Because the constitution of 1868, in force when the statute was enacted, provided that the net proceeds of all fines and penalties that accrue to the State should go to the school fund, whereas the statute provided that half of the penalties for its violation should go to the county, and half to the informer.
ARK.] RAILWAY COMPANY V. STATE. 205. 3. Because the indictment was defective, and its allegations did not disclose a breach of the statute. 4. Because the defendant was summoned to answer a. complaint, not an indictment, and was therefore improperly brought-into court. 5. Because the indictment was against the St. Louis, Irom Mountain and Southern Railroad Company, and the summons and judgment were against the St. Louis, Iron Mountain and Southern Railway Company. 6. Because the judgment was rendered for the sole benefit of the county, whereas only half of the penalty should,_ by the terms of the statute, have been adjudged to it. 7. Because judgment was rendered by default. The restricted office of the writ of certiorari precludes. a review of such matters as, coming within the court's jurisdiction, were incorrectly determined ; for the petitioner had the right of appeal, which it does not appear to have lost by any unavoidable cause. Such being 'true, certiorari can be invoked only to set aside a judgment rendered without jurisdiction. Burgett v. Apperson, 52 Ark., 220. Jurisdiction is defined to be " the right to adjudicate concerning the sub-ject-matter in the given case. To constitute this there are three essentials. First, the court must have cogniiance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue." i Black on Judg., sec. 242; Munday v. Vail, 34 N. J. Law, 418 ; Windsor V. McVeigh, 93 U. 274. And where the court has a general cognizance over the class of cases to which that to be adjudged belongs, it has jurisdiction of the particular case upon a colorable presentation of the facts necessary to constitute it a member of the class. Grove v. Van Duyn, 44 N. J. Law, 654 ; Plume v. Howard Saving inst., 46 N. J. Law, 211. Proceeding to consider the several grounds relied upon by 1. When am indictment in, the petitioner according to the rule just stated , does it apt fo ormb e co a ns c tr
o u m ed pear that the judgment rendered exceeded the court's juris plaint.
_206 RAILWAY COMPANY V. STATE. [55 - -diction ? The first and last grounds stated are so nearly related that We May' Con'veniently ;Cionsider them 'together. _For the purposes of this case it may be cOnceded that for a -violation of the .. .......é the. reiriedy , prstiiided Of a suit by -the piosecuting attorriey is exeilisi'Ve-L —Still we 'do* riot conclude that the court acted without jui-iSdiCtidn. It is in-, sisted that because the , pleading filed b ' y the prosecuting .attorney as the ba ' sis of his suit was in ihe form of an indictment and presented under . the 'sanCtibn of a grand jury, it could not confer jUrisdiction' in the particular case, al--though it belonged to the Class of which the court had gen--eral cognizance. If this be correct, jurisdiction depends in the particular case upon the form and not Upon the sub-_stance of the pleading. The pleading -upon which the action proceeded, though in form an indictment, was in substance a complaint ; it coritained allegations intended to disclose a violation of the statute, and asserted a right to xecover the penalty provided therefor; and it was prepared and signed by the prosecuting attorney, and its prosecution was subject to his direction and control as fully as if he had -filed an ordinary complaint. If he had prepared the same pleading, and filed it without a return in court by the grand jury or an indorsement by the foreman, and thereafter pros-, ecuted the case, it would have been a suit by him for the penalty, although the complaint might have been subject to technical criticism; if such pleading, without the return of a grand jury or the indorsement of its foreman, would have been saficient as the basis for a suit by the prosecuting _attorney, could it be insufficient with them? If they added nothing tb it, could they detract from it? And if a proceeding upon the same pleading, signed and conducted by the .prosecuting attorney, is a suit by him, why is such a pro-. ceeding less so when the pleading is indorsed by the foreman of a grand jury and sanctioned by the return of that body ? For all practical purposes the suit was as much a . suit by the prosecuting attorney as though it had been be-_gun by formal complaint expressed in the aptest technical
ARK.] RAILWAY COMPANY ,V. STATE. 207 phraseology. -If the defendant had , objected, that. the rem--edy was , by suit and agt by indictment, the court might have permitted the prosecu * ting attorney to . enter . his formal adoption of the -indictment as a complaint arid directed the .cause to proceed, for the cause of ,action would not have been changed, and no different proof and no additional parties required ; and when the attorney actually adopted, it as -a complaint, and the court permitted it, it, cannot be said that the cause proceeded without jurisdiction merely because the order was not entered of record. Whether a judgment by default upon an indictment for an ordinary misdemetanor is void or voidable, is a question we need not determine. See Windsor v. McVeigh, 93 U. S., 283. The proceeding under consideration was in reality of -a civil and not-of a criminal nature ; and, as we have said, it was not without the power of the court to treat the indictment as a complaint, and proceed accordingly. Whether the code authorizes such liberality in procedure was a matter for the court to determine ; and if it erred, it did not exceed its jurisdiction. The second ground stated, the one to which most of the 2. When stat- ute void i n part -argument has been directed, upon which it appears the most is valid as to remainder. reliance is placed, will next be considered. The able briefs of the attorneys for the petitioner have been supplemented by -the arguments of counsel in other causes depending upon the same statute. The argument in effect is that the statute prescribing a duty and providing the penalty for its violation is unconstitutional because it awards half the penalty to the informer, whereas (as is contended) the constitution then in force provided that all penalties should go to the school fund. If we concede that the part of the statute which awards a part -of the penalty to the informer is in violation of the constitution and void, does it follow that the part which prescribes the duty and imposes a penalty for its violation is also void ? Or would that part be sustained and the penalty awarded as the -constitution directs ? It is easy to separate the valid from the invalid provisions, and to preserve the former while rejecting
208 RAILWAY COMPANY V. STATE. [55 the latter. The act was manifestly designed to promote the safety of travelers upon highways by requiring railways to perform a prescribed duty and imposing a penalty for its. omission. The penalty was designed to enforce obedience to the requirement, and it was given in part to the informer because this ...was regarded as tending, to insure its enforcement and thereby to advance the purpose of the act. it certainly cannot be said that the legislature would not have passed the act without the objectionable provision. If the act had been designed to provide a fund for private informers, and the clause in question had to be rejected, it might be argued that the entire act should fail with it ; but as it was designed to secure the performance of a public duty, and the informer was to be rewarded only as a means to aid its enforcement, it by no means follows that the entire act should fail. On the contrary, we think the void part may be eliminated, and "another living, tangible part" remain, capable by its own: terms of being carried into effect, consistently with the intent of the legislature. Suth., Stat. Con., sec. 170. In other words we may preserve the act itself, and only discard a vehicle provided for carrying it forward. We have no doubt that if the part assailed is void, the other parts should stand.. State v. Deschamp, 53 Ark., 490. 8. When ju- risdiction of sub- There was an obvious assertion of the right to recover the ject-matter ac- quired. penalty provided for the violation of the statute ; but it is contended that the allegations were insufficient to show the right, and that the court for this reason acquired no jurisdiction of the cause. The case was of a kind of which the court had a general cognizance, and there was a colorable presentation of facts necessary to constitute it a member of the class. That was jurisdiction of the subject matter. Whether the allegations were sufficient to entitle the plaintiff to the relief asked was a matter for the court to determine ; but it had no right to determine anything unless it had jurisdiction. If it had jurisdiction to adjudge the complaint insufficient, it likewise had jurisdiction to adjudge it sufficient; and in either event a mistake would not avoid its
ARK.] RAILWAY COMPANY V. STATE. 209 judgment. Black on Judg., sec. 183 ; Arnold v. Booth, 14 Wis., i80. While it is true that a court is without jurisdiction to adjudicate matters not before it—matters not included in the issues presented, it has jurisdiction to determine matters before it although presented upon defective pleadings. Otherwise to sustain a demurrer to a complaint would be to hold that the court never had jurisdiction of the case—a position for which counsel would not contend. Our conclusion follows the rule announced in Williams v. Renwick, 52 Ark , I6o. - If the defendant is actually served with summons, the 4 W hen ju- risdiction of per— court acquires jurisdiction of his person, though the writ be son acquired. defective or the service irregular. Freeman on Judg., sec. 126. The variance between the complaint and judgment as to 5. Variance as to name. the name of the defendant does not avoid the judgment. The judgment is for the amount of the penalty fixed by 6. Validity oi judgment. the statute ; and if the county gets what should have gone to the State, or an informer, this is but an error of the court, which does not avoid the judgment or prejudice the petitioner. Upon the entire record we see no ground to quash the judgment, and the petition will be denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.