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Kansas City, and an exhaustive hearing was The appellant claims that the bonds in this had before the commission. The report of case come under the fourth subdivision in this proceeding is before us in a voluminous section 57, and were issued by the company record covering several hundred pages, show- for the “refunding of its lawful obligations," ing the work which the commission did in ex- and therefore are within the proviso of secamining all matters touching the organization tion 21 to the effect that no fee shall be and the contemplated indebtedness of the new charged for refunding any bonds, notes, etc. company, before authorizing the issuance of Respondents assert that these are reorganithe bonds under consideration. When this zation bonds, and provided for in section 62; work was done and the bonds authorized, the that they are different from and not includcommission taxed the costs of which the ap- ed in any class mentioned in section 57. pellant complains here. The Public Service It is clear that reorganization bonds menCommission Act, in section 57, provides for tioned in section 62 might be of some class, the issuance of bonds by railroad corpora- possibly' all classes, authorized by section tions and street railroad corporations after | 57. Section 62 does not, in terms, authorize procuring from the commission an order au- the issuance of any bonds, nor does it seem thorizing such issue. That part of the sec- necessary to imply such authority in view tion relating to it is as follows:
of the specific statement in section 57. It "Sec. 57. Approval of Issues of Stocks, Bonds may be that the bonds mentioned in section and Other Forms of indebtedness.-A common 62 are limited to the classes allowed by seccarrier, railroad corporation or street railroad tion 57. However, it is not necessary to decorporation organized or existing, or hereafter incorporated, under or by virtue of the laws termine that question for our purpose here, of the state of Missouri, may issue stocks, bonds, as presently will appear. notes or other evidences of indebtedness payable
 Section 21 appears in the general proat periods of more than twelve months after the date thereof, when necessary for the acquisi- visions of the Public Service Commission tion of property, the construction, completion, Act, while sections 57 and 62 appear in the extension, or improvement of its facilities, or articles relating to common carriers, and for the improvement or maintenance of its section 57 is the only section under which service or for the discharge or lawful refunding of its obligations or for the reimbursement of the commission can authorize a carrier to moneys actually expended from income, or from issue bonds, unless the authority is implied any other moneys in the treasury of the corpo- in section 62. Section 21 does not authorize ration not secured by or obtained from the is the issuance of bonds for any purpose. It sue of stocks, bonds, notes, or other evidence of indebtedness of such corporation, within five relates to fees, and to fees only. It cannot years next prior to the filing of an application enlarge the authority given under section with the commission for the required authoriza: 57, and the proviso, so far as it refers to tion, for any of the aforesaid purposes except maintenance of service and except replacements that section, reaches only the fourth classiin cases where the applicant shall have kept its fication of purposes for which bonds are accounts and vouchers of such expenditure in there authorized. If it covered a wider such manner as to enable the commission to ascertain the amount of moneys so expended and range than that it would be inoperative. the purposes for which such expenditure was  It is not claimed by the appellant that made."
the bonds here were authorized by section The remaining part of the section provides 62, or were of a different class from any the conditions under which the commission mentioned in section 57; it stands squarely may and may not authorize the issuance of on the proposition that they are covered by such bonds and notes, and the restrictions the fourth subdivision in the latter section. upon its authority. It will be noticed that Therefore, unless the bonds in this case the purposes for which a common carrier come under the fourth subdivision in section may be authorized to issue bonds, notes, and 57, the cost was properly taxed. Appellant other evidences of indebtedness are as fol- argues that “its obligations,” of the fourth lows: (1) When necessary for the acquisi- subdivision, refers not only to those which tion of property; (2) for the construction, the company itself originally incurred, but completion, extension or improvement of its also all obligations for which it may have facilities; (3) for the improvement or main- become liable subsequent to their issuance. tenance of its service; (4) for the discharge
Counsel use this illustration: or lawful refunding of its obligation; (5) the case of the purchaser of real estate incum
“The matter has been aptly illustrated by for the reimbursement of moneys actually bered by mortgage. It is not his obligation in expended from income, etc.
the sense that he first placed it in operation, Section 62 of the act provides that the re- but it is his obligation in every sense of the organization of railroad corporations and property subject to its payment."
word when he assumed to pay it and took the street railroad corporations shall be subject to the control of the commission. This sec. erties in the manner in which it did, under
If the appellant had bought all these proption then says: "Upon all such reorganizations the amount of
decrees of the federal court, and had become capitalization, including therein all stocks and a going concern operating the property after bonds or other evidence of indebtedness, shall assuming an indebtedness which was to rebe such as is authorized by the commission main on the several properties, then the ilwhich, in making its determination, shall not exceed a fair valuation of the property in- lustration of the appellant would be perti. volved," etc.
nent. But that is not the case. The appel
lant did not assume this indebtedness. It, be formal. It could not have been contempunchased the property, under decrees of plated by the Legislature to disallow comforeclosure of mortgages which secured the pensation to the state for the service of the indebtedness. The plan, which was stated to commission, where such service involves the be for the protection of creditors, stock exhaustive and expensive investigation which holders, the city, and the public, provided was required and performed in this case. that in the transfer of the property necessary  Appellant lays great stress upon the steps should be taken "to clear the same of proposition that this statute, section 21, all existing mortgages," and the new com- must be construed strictly against the alpany should receive "a clear and unincum- lowance of fees because strict construction is bered title”; it provided, further, that the applied by the courts to statutes relating to stockholders should have “no liability ex- fees. But the cases cited all are cases where cept specially undertaken"; that the mortgag- a public officer charges fees, paid by the state es authorized by the new company should con- or by some person, for his individual benefit. tain suitable provisions whereby it might issue Here it is not the state which is paying, nor bonds "with which to acquire or discharge an individual who is receiving, the fees. the claims of holders of mortgage bonds The fees are payable to the state, and, by the against the old companies."
express terms of section 21, go into the All this shows that the appellant acquir- state treasury to the credit of the general ed its titles to the properties by foreclosure revenue fund. It is a tax, the proceeds of which paid the indebtedness; that the which are devoted to general public purposes. acquisition of the title and the payment of Appellant claims its property, the bonds, are the obligations occurred at one and the same exempt from this taxation. Statutory claustime. It is claimed that the appellants as-es, exempting certain property from the opsumed the debts of the several companies eration of statutes which are general in their when it procured the franchises and accept- application, imposing taxes, are strictly coned the plan of reorganization. It did agree strued in favor of the state. B. P. 0. E. v. to pay them, but only upon the condition Koeln, 262 Mo. 444, 171 S. W. 329, L. R. A. that the plan should go through, and title 1915C, 694, Ann. Cas. 1916E, 784; State ex vest in it, just as it agreed to pay the rest rel. v. Johnston, 214 Mo, 656, 113 S. W. 1083, of the purchase money. The assumption, 21 L. R. A. (N. S.) 171. if it can be called so, was merely a step in The appellant can invoke no rule of conthe process of liquidation. The reorganiza- struction which will exempt it from paytion, so called, was for the purpose of pur- ment to the state the compensation allowed, chasing the property, paying the debts, and for the extraordinary service rendered by the continuing the public service. It never was commission. contemplated that the purchasing company The judgment is affirmed. should operate the property and continue the indebtedness. The bonds issued in this ROY, C., concurs. case are more aptly described in the first classification in section 57 of purposes for PER CURIAM. The foregoing opinion by which they were issued, "for the acquisition WHITE, C., is adopted as the opinion of the of property," and not for the refunding of court. All the Judges concur. the purchasers' indebtedness. If the appellant already had been operating a street railway as owner, and had bought these properties, discharging the debts as part of CORYELL v. ATCHISON, T. & S. F. RY. CO. the purchase price, there would be no ques
(No. 18832.) tion that the transaction would come under (Supreme Court of Missouri, Division No. 2. the first classification. There seems to be no
Feb. 16, 1918.) difference in principle between that and the Courts m8-NONPENAL STATUTE ENFORCEdeal which took place. The appellant had ABLE IN OTHER STATE-KANSAS RECIPROCAL a valuable franchise to which it added these DEMURRAGE ACT—“PENAL STATUTE. other properties by purchase under foreclos- St. Kan. 1909, $3 7201-7203) subjecting a rail
Kansas Reciprocal Demurrage Act (Gen. ure.
road to a penalty payable to the shipper for The bonds and other debts liquidated by delay in furnishing cars ordered by him to be the appellant in the purchase of the several furnished in Kansas, is not penal in the sense properties were never “its obligation," wheth- forbidding its enforcement in Missouri. er that expression be given a literal or a Appeal from Circuit Court, Jackson Counliberal interpretation. The proviso in sec-ty; Kimbrough Stone, Judge. tion 21, which excepts certain classes of Action by L. L. Coryell against the Atchidebts from this taxation, limited by the terms son, Topeka & Santa Fé Railway Company. of section 57, refers to such as are required From a judgment for plaintiff, defendant apin the renewal or discharge of the company's peals. Judgment affirmed conditionally on existing debts where the duties of the com- plaintiff's entering a remittitur; otherwise mission in authorizing them would merely reversed and remanded for new trial.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Plaintiff sued under the Kansas Reciprocal Thomas R. Morrow, George J. Mersereau, Demurrage Act for the delay of the defendant John H. Lathrop, and J. D. M. Hamilton, all in furnishing cars ordered by plaintiff to be of Kansas City, for appellant. E. H. Batson, furnished in that state. There was judgment of Kansas City, for respondent. for plaintiff for $504.50 and for $100 as an attorney fee. Defendant has appealed.
ROY, C. (after stating the facts as above). Said act, as shown in the General Statutes I. This case came to this court on the claim of Kansas of 1903, is as follows:
made by the defendant that the Kansas stat“Sec. 7201. Furnish Cars—Time Fired-Lia- ute, in so far as it provided for the recovery bility. Sec. 224. When the owner, manager or of an attorney's fee, is contrary to the federshipper of any freight of any kind shall make al Constitution. Since the appeal that conapplication in writing to any superintendent, agent or other person in charge of transporta- tention has been sustained in A., T. & S. F. tion of any railroad company, receiver, or trus- Ry. Co. v. Vosburg, 238 U. S. 56, 35 Sup. Ct. tee, operating a line of railway at any point, | 675, 59 L. Ed. 1199, L. R. A. 1915E, 953. that cars are desired upon which to ship any
II. It is conceded by counsel that the freight, it shall be the duty of such railway company, trustee or other person in charge thereof courts of one state will not enforce the purely to supply the number of cars so required at the penal statutes of another state. What is a point indicated in the application within a rea- penal statute in the contemplation of that sonable time thereafter, not to exceed six days rule? That question is clearly answered in from the receipt of such application, and shall supply such cars to the person or persons so Huntington v. Attrill, 146 U. S. loc. cit. 667, applying therefor, in the order in which applica- 13 Sup. Ct. 227, 36 L. Ed. 1123, where it is tions are made, without giving preference to any said: persons: Provided, if the application be for ten cars or less, the same shall be furnished in "Penal laws, strictly and properly, are those three days; and provided further, that if the imposing punishment for an offense committed application be for thirty cars or more, the rail- against the state, and which, by the English and way company may have ten full days in which American Constitutions, the executive of the to supply the cars. The time provided in this state has the power to pardon. Statutes giving act for the furnishing of cars as hereinbefore a private action against the wrongdoer are set out shall be deemed a reasonable time, but sometimes spoken of as penal in their nature, this shall not be construed as excusing such but in such cases it has been pointed out that railroad from the duty of furnishing such cars neither the liability imposed nor the remedy in a less time than the time mentioned in this given is strictly penal." act when a less time is reasonable, and the ship- That language was used with reference to per makes application for such cars to be fur- the question now under discussion. We nished in a less time: Provided, that whenever any railroad company is prevented from com- have been cited to no authority contrary to plying with such demand to furnish cars as that ruling. We hold that the Kansas statute aforesaid by any accidental or unavoidable is not penal in the sense which forbids its encause, which could not by the use of reasonable forcement in this state. foresight and diligence have been avoided, and
If the respondent supplies the same in a reasonable time there will, within ten days in this court, enter a after, or offers to do so, then the liability for remittitur for $100, the amount allowed in the damages herein provided for and for actual the judgment as an attorney's fee, the judgdamages and attorney's fees shall not accrue. “Sec. 7202. Application. Sec. 225. Said
ment will be affirmed for the amount thereof, plication for cars shall state the number of cars less the remittitur; otherwise it will be redesired, the place at which they are desired, versed and the cause remanded for a new and the time they are desired, provided that the trial. place designated shall be at some station or public switch on the line of its road.
"Sec. 7203. Damages. Sec. 226. When cars WHITE, C., concurs. applied for under the provisions of this chapter, if they are not furnished, the railway company PER CURIAM. The foregoing opinion of so failing to furnish them shall pay to the party or parties so applying for them, the sum of ROY, C., is adopted as the opinion of the five dollars per day, for each car failed to be court. All the Judges concur. furnished as exemplary damages, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain, for each car failed to be furnished, to- FRIZELL GRAIN & SUPPLY CO. v. ATCHIgether with reasonable attorney fees, to be re
SON, T. & S. F. RY. CO. (No. 18833.) covered in any court of competent jurisdiction; but nothing in this act shall in any wise af- (Supreme Court of Missouri. Division No. 2. fect the right or remedy of any shipper or other
Feb. 16, 1918.) person, as the same may exist at common law or under any statute, to recover on account of 1. LIMITATION OF ACTIONS 33(1)-ACTION
FOR PENALTY-KANSAS RECIPROCAL DEMURfailure, delay or refusal to furnish cars, nor to exempt in any wise any such railroad company
RAGE ACT—“PENAL STATUTE”—“EXEMPLA
RY DAMAGES.” from any of the provisions of the railroad laws of this state or from any of the obligations im- St. Kan. 1909, $$ 7201-7203), subjecting a rail
Kansas Reciprocal Demurrage Act (Gen. posed upon railroad companies and common road to a penalty payable to the shipper for carriers by the common law."
delay in furnishing cars ordered by him to be The petition alleged 99 days delay of cars furnished in Kansas, providing for the payat $5 a day, and also alleged actual damages ment of $5 per day for the delay of each car amounting to $58.50, and prayed judgment as exemplary damages, and also for the payaccordingly, and also for $100 as an attor- within section 5610, Gen. St. Kan. 1909, pro
ment of actual damages, is a penal statute ney's fee.
viding that an action on a statute for a penFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
alty or forfeiture shall be brought within one , defendant, for the reason: (1) That said preyear, "exemplary damages” being damages given tended statute of limitations applies only to acin addition to damages covering the actual loss tions instituted on penal statutes, or statutes to punish and make an example of the offender creating forfeitures, and that plaintiff's action in torts committed with actual malice or delib- in this case is based upon a statute which has erate oppression or violence, called also smart been by the Supreme Court of the state of Kanmoney, and vindictive, punitive, or retributive sas construed to be not a penal statute, or one damages.
creating a forfeiture in the case of Star Grain [Ed. Note.--For other definitions, see Words & Lumber Co. v. Atchison, Topeka & Santa Fé and Phrases, First and Second Series, Exem- Railway Co., 85 Kan. 281, 116 Pac. 906. (2) plary Dainages; Penal Laws.]
That the said pretendcu statute of limitations 2. LIMITATION ACTIONS m169 WHAT
has not been properly pleaded in this action to
afford the defendant the right of its application, LAW GOVERXS CAUSE OF ACTION ORIGINATING IN ANOTHER STATE.
even though said pretended statutes might be Under Rer. St. 1909, § 1895, when a cause applicable to this cause of action if properly of action originating in Kansas is barred by
pleaded." the statute of limitations of that state, it is At the trial there was a stipulation bebarred in Missouri.
tween the parties as to some of the facts. 3. LIMITATION OF ACTIONS O183(2) — Star- It contained this: UTE OF LIMITATIONS-PLEADING. In an action on a cause originating in an- at all the times in the petition operate a line
"That the defendant now operates and did other state, the answer, alleging the existence of railway in and through the city of Frizell, of the statute of limitations of such other. state Kan., and now does, and at all of the times menas to such cause of action, and setting it out tioned in the petition on file in this action did, in hæc verba, properly pleads the statute.
maintain and operate a public depot in charge Appeal from Circuit Court, Jackson Coun- of a duly authorized agent of the defendant at ty; Kimbrough Stone, Judge.
said Frizell, Kan." Suit by the Frizell Grain & Supply Compa
There was evidence tending to support py, a corporation, against the Atchison, To the plaintiff's cause of action. The abovepeka & Santa Fé Railway Company. From a
mentioned statutes of Kansas were duly judgment for plaintiff, defendant appeals. proved. Judgment reversed.
Thomas R. Morrow, George J. Mersereau, This, like the Coryell Case, 201 S. W. 77, John H. Lathrop, and J. D. M. Hamilton, all decided at the same time herewith, is a
of Kansas City, for appellant. E. H. Batson, suit under the Kansas Reciprocal Demur- of Kansas City, for respondent. rage Act for delay in the furnishing of cars by defendant. Plaintiff had judgment for
ROY, C. (after stating the facts as above). $2,120, including $200 as an attorney's fee. I. Like the Coryell Case, this appeal came Defendant has appealed. The necessary
to this court on the claim made by the desections of the Demurrage Act (Gen. St. Kan. fendant that the Kansas statute, in so far 1909, $$ 7201-7203), were set out in the state as it provided for the recovery of an atment in the Coryell Case, and will not be torney's fee, is contrary to the federal Con
stitution. copied here.
Since the appeal that contention The petition alleges that both plaintiff and has been sustained in A., T. & S. F. Ry. Co. defendant are corporations duly organized y. Vosburg, 238 U. S. 56, 35 Sup. Ct. 675, 59 according to law; that the plaintiff has its L. Ed. 1199, L. R. A. 1915E, 953. principal office and place of business at
[1, 2] II. We held in the Coryell Case above Frizell, Kan., and that the defendant is en- mentioned that the Kansas statute, as to gaged as a common carrier in operating a the per diem demurrage, was not a penal railway through said city. It sets out said (criminal) statute in the sense that would statute. The cause of action, if any, ac- prevent its enforcement in this state. But crued wholly in the state of Kansas, more
we hold that it is, in that respect, a penal than a year before the beginning of this statute within contemplation of the Kansas suit. The answer contained a general de statute which bars after one year a civil nial, and alleged the existence of the Kansas "action upon a statute for penalty or forfeistatute of limitations as follows:
ture." Said Reciprocal Demurrage Act pro"Sec. 5610. Actions Other Than for the Re- vides for the payment of $5 per day for the covery of Real Property. 17. Civil actions, oth- delay of each car as "exemplary damages," er than for the recovery of real property, can and also for the payment of all actual damonly be brought within the following periods,
ages. Webster's definition of "exemplary after the cause of action shall have accrued, and not afterwards: * Fourth. -Within damages” is: one year: An action for libel, slander, assault, "Damages given, in addition to damages coybattery, malicious prosecution, or false imprison- ering the actual loss, in order to punish, and ment; an action upon a statute for penalty or make an example of, the offender in torts comforfeiture, except where the statute imposing it mitted with fraud, actual malice, or deliberate prescribes a different limitation."
oppression or violence; called also smart money, The reply contained a general denial and and vindictive, punitive, or retributive damages. the following:
In Day v. Woodworth, 54 U. S. (13 How.) "For its further reply, plaintiff states that said 363, 14 L. Ed. 181, it was said: pretended statute of limitations, sought to be "By the common law as well as by statute set up in defendant's first amended answer, is law, men are often punished for aggravated misnot available as a defense in the hands of the conduct or lawless acts, by means of a civil ac
Fo. other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
tion, and the damages, inflicted by way of pen-, ute of limitations of that state, it is barred
 III. Respondent says that the Kansas
Williams v. Railroad, 123 Mo, 573, 27 S. W. That language was quoted with approval in 387, was decided in 1894. In that case both Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, parties were residents of this state, and the 41 L. Ed. 632. Under that ruling the expresó held that it would not enforce the statute of
cause of action accrued in Kansas. This court sion “exemplary damages" means “penalty."
It was held in Udall Milling Co. v. Railway limitations of that state except in cases where Co., 82 Kan. 256, 108 Pac. 137, that the per But since that case was decided we have en
both parties were residents of that state. diem demurrage called for by that act was a forfeiture imposed by statute, and that the acted section 1895 above quoted, by which we statute of limitations of one year as above enforce the Kansas statute of limitations as set out applied.
to all causes of action originating in that
state. Respondent cites Grain & Lumber Co. v. Railway Co., 85 Kan. 281, 116 Pac. 906. That
The judgment is reversed. case merely holds that both the actual and
WHITE, C., concurs. the exemplary damages can be recovered in the same action. The opinion in that case be
PER CURIAM, The foregoing opinion of gins thus:
"This action was brought in the district court ROY, C., is adopted as the opinion of the
STATE v. LEWIS et al. (No. 20651.)
(Supreme Court of Missouri. Division No. 2. "All of the causes of action are alleged as Feb. 16, 1918. On Motion to Modify arising out of several transactions of the same
Judgment, Feb. 26, 1918.) character, viz. the effort of one party to pro- 1. HOMICIDE 234(5)–CONSPIRACY-SUFFIcure and the failure of the other to supply cars for the transportation of grain. The so-called
CIENCY OF EVIDENCE. penalties are in fact statutory damages. The
In a prosecution of two brothers for murder, damage to the plaintiff for failure to supply one the fatal shot, held to show a conspiracy to
evidence, as against the one who did not fire car may, in fact, have been many dollars, or in
murder an officer whenever necessary. case of the advance in the price of his grain, a delay in the time of the shipment may have 2. CRIMINAL LAW Cw371(1)--EVIDENCE-OTHbeen an actual benefit to him. The Legislature
ER CRIMES. did not leave the question of the amount of dam
Evidence as to other crimes is generally comage to be settled by evidence, for the reason, petent to prove the specific crime when it tends perhaps, that the expense of litigating the ques to establish motive, intent, the absence of mistion would render the law nugatory, but pre- take or accident, a common scheme or plan scribed a certain sum which, no more and no embracing the commission of two or more crimes less, could be recovered for the failure to com
so related to each other that proof of one tends ply with the law each day and for each car.
to establish the others, or the identity of the The language of the act is that the party in person charged with the commission of the crime default 'shall forfeit,' etc. This is called a for- on trial. feiture or penalty, but it is in lieu of damages- 3. CRIMINAL LAW m1064(7)-APPEAL-INis in fact damages. The uniting of these causes STRUCTIONS-ASSIGNMENT OF ERROR. of action is fairly within the contemplation of Where the motion for a new trial only mensection 83 of the old Code of Civil Procedure." tions the instructions given or refused in a gen
eral way, and does not call attention to any speIt thus seems that the Kansas statute on cific propositions, such points are not before the which the plaintiff founds its action, and the court for review. opinions of the Supreme Court of that state, 4. HOMICIDE ~308(5) -INSTRUCTION-MUR
This are squarely against the plaintiff.
DER IN SECOND DEGREE.
In a prosecution for murder, where it apcause of action originated in that state. An peared that defendants were both armed when action therefor in that state was clearly arrested and searched, that the gun of one was barred at the end of one year by said statute so concealed that the officer did not find it, and of limitations of that state. Section 1895 of aside, shot him, and that both escaped, there
that such defendant, when the officer turned our Revised Statutes provides:
was no basis for an instruction on murder in “Whenever a cause of action has been fully the second degree. barred by the laws of the state, territory or 5. CRIMINAL LAW 789 (16)-INSTRUCTIONcountry in which it originated, said bar shall be REASONABLE DOUBT. a complete defense to any action thereon, An instruction that if, on consideration of brought in any of the courts of this state." all the evidence, the jury had a reasonable doubt
of defendant's guilt they should acquit, but that Under that section, when a cause of action a doubt, to authorize an acquittal, ought to be originating in Kansas is barred by the stat- a substantial doubt as to defendant's guilt, and
For otber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes