Kansas City, and an exhaustive hearing was had before the commission. The report of this proceeding is before us in a voluminous record covering several hundred pages, showing the work which the commission did in examining all matters touching the organization and the contemplated indebtedness of the new company, before authorizing the issuance of the bonds under consideration. When this work was done and the bonds authorized, the commission taxed the costs of which the appellant complains here. The Public Service Commission Act, in section 57, provides for the issuance of bonds by railroad corporations and street railroad corporations after procuring from the commission an order authorizing such issue. That part of the section relating to it is as follows: "Sec. 57. Approval of Issues of Stocks, Bonds and Other Forms of Indebtedness.-A common carrier, railroad corporation or street railroad corporation organized or existing, or hereafter incorporated, under or by virtue of the laws of the state of Missouri, may issue stocks, bonds, notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, the construction, completion, extension, or improvement of its facilities, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obligations or for the reimbursement of moneys actually expended from income, or from any other moneys in the treasury of the corporation not secured by or obtained from the issue of stocks, bonds, notes, or other evidence of indebtedness of such corporation, within five years next prior to the filing of an application with the commission for the required authorization, for any of the aforesaid purposes except maintenance of service and except replacements in cases where the applicant shall have kept its accounts and vouchers of such expenditure in such manner as to enable the commission to ascertain the amount of moneys so expended and the purposes for which such expenditure was made." The remaining part of the section provides the conditions under which the commission may and may not authorize the issuance of such bonds and notes, and the restrictions upon its authority. It will be noticed that the purposes for which a common carrier may be authorized to issue bonds, notes, and other evidences of indebtedness are as follows: (1) When necessary for the acquisition of property; (2) for the construction, completion, extension or improvement of its facilities; (3) for the improvement or maintenance of its service; (4) for the discharge or lawful refunding of its obligation; (5) for the reimbursement of moneys actually expended from income, etc. The appellant claims that the bonds in this case come under the fourth subdivision in section 57, and were issued by the company for the "refunding of its lawful obligations," and therefore are within the proviso of section 21 to the effect that no fee shall be charged for refunding any bonds, notes, etc. Respondents assert that these are reorganization bonds, and provided for in section 62; that they are different from and not included in any class mentioned in section 57. It is clear that reorganization bonds mentioned in section 62 might be of some class, possibly all classes, authorized by section 57. Section 62 does not, in terms, authorize the issuance of any bonds, nor does it seem necessary to imply such authority in view of the specific statement in section 57. It may be that the bonds mentioned in section 62 are limited to the classes allowed by section 57. However, it is not necessary to determine that question for our purpose here, as presently will appear. [1] Section 21 appears in the general provisions of the Public Service Commission Act, while sections 57 and 62 appear in the articles relating to common carriers, and section 57 is the only section under which the commission can authorize a carrier to issue bonds, unless the authority is implied in section 62. Section 21 does not authorize the issuance of bonds for any purpose. relates to fees, and to fees only. It cannot enlarge the authority given under section 57, and the proviso, so far as it refers to that section, reaches only the fourth classification of purposes for which bonds are there authorized. If it covered a wider range than that it would be inoperative. It [2] It is not claimed by the appellant that the bonds here were authorized by section 62, or were of a different class from any mentioned in section 57; it stands squarely on the proposition that they are covered by the fourth subdivision in the latter section. Therefore, unless the bonds in this case come under the fourth subdivision in section 57, the cost was properly taxed. Appellant argues that "its obligations," of the fourth subdivision, refers not only to those which the company itself originally incurred, but also all obligations for which it may have become liable subsequent to their issuance. Counsel use this illustration: the case of the purchaser of real estate incum- Section 62 of the act provides that the reorganization of railroad corporations and street railroad corporations shall be subject to the control of the commission. This sec-erties in the manner in which it did, under tion then says: If the appellant had bought all these prop decrees of the federal court, and had become a going concern operating the property after assuming an indebtedness which was to remain on the several properties, then the illustration of the appellant would be pertinent. But that is not the case. The appel lant did not assume this indebtedness. It, be formal. It could not have been contempurchased the property, under decrees of plated by the Legislature to disallow comforeclosure of mortgages which secured the indebtedness. The plan, which was stated to be for the protection of creditors, stockholders, the city, and the public, provided that in the transfer of the property necessary steps should be taken "to clear the same of all existing mortgages," and the new company should receive "a clear and unincum-lowance of fees because strict construction is bered title"; it provided, further, that the stockholders should have "no liability except specially undertaken"; that the mortgages authorized by the new company should contain suitable provisions whereby it might issue bonds "with which to acquire or discharge the claims of holders of mortgage bonds against the old companies." pensation to the state for the service of the commission, where such service involves the exhaustive and expensive investigation which was required and performed in this case. [3] Appellant lays great stress upon the proposition that this statute, section 21, must be construed strictly against the al applied by the courts to statutes relating to fees. But the cases cited all are cases where a public officer charges fees, paid by the state or by some person, for his individual benefit. Here it is not the state which is paying, nor an individual who is receiving, the fees. The fees are payable to the state, and, by the express terms of section 21, go into the state treasury to the credit of the general revenue fund. It is a tax, the proceeds of which are devoted to general public purposes. Appellant claims its property, the bonds, are exempt from this taxation. Statutory clauses, exempting certain property from the operation of statutes which are general in their application, imposing taxes, are strictly construed in favor of the state. B. P. O. E. v. Koeln, 262 Mo. 444, 171 S. W. 329, L. R. A. 1915C, 694, Ann. Cas. 1916E, 784; State ex rel. v. Johnston, 214 Mo. 656, 113 S. W. 1083. 21 L. R. A. (N. S.) 171. All this shows that the appellant acquired its titles to the properties by foreclosure which paid the indebtedness; that the acquisition of the title and the payment of the obligations occurred at one and the same time. It is claimed that the appellants as sumed the debts of the several companies when it procured the franchises and accepted the plan of reorganization. It did agree to pay them, but only upon the condition that the plan should go through, and title vest in it, just as it agreed to pay the rest of the purchase money. The assumption, 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 should operate the property and continue the indebtedness. The bonds issued in this case are more aptly described in the first classification in section 57 of purposes for which they were issued, "for the acquisition of property," and not for the refunding of 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 question that the transaction would come under (Supreme Court of Missouri, Division No. 2. the first classification. There seems to be no difference in principle between that and the deal which took place. The appellant had a valuable franchise to which it added these other properties by purchase under foreclos ure. The bonds and other debts liquidated by the appellant in the purchase of the several properties were never "its obligation," whether that expression be given a literal or a liberal interpretation. The proviso in section 21, which excepts certain classes of debts from this taxation, limited by the terms of section 57, refers to such as are required in the renewal or discharge of the company's existing debts where the duties of the commission in authorizing them would merely The judgment is affirmed. ROY, C., concurs. PER CURIAM. The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All the Judges concur. COURTS (No. 18832.) Feb. 16, 1918.) 8-NONPENAL_STATUTE ENFORCEABLE IN OTHER STATE-KANSAS RECIPROCAL DEMURRAGE ACT-"PENAL STATUTE." St. Kan. 1909, §§ 7201-7203) subjecting a railKansas Reciprocal Demurrage Act (Gen. road to a penalty payable to the shipper for delay in furnishing cars ordered by him to be furnished in Kansas, is not penal in the sense forbidding its enforcement in Missouri. Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge. Action by L. L. Coryell against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed conditionally on plaintiff's entering a remittitur; otherwise reversed and remanded for new trial. Plaintiff sued under the Kansas Reciprocal | Demurrage Act for the delay of the defendant in furnishing cars ordered by plaintiff to be furnished in that state. There was judgment for plaintiff for $504.50 and for $100 as an attorney fee. Defendant has appealed. Said act, as shown in the General Statutes of Kansas of 1909, is as follows: "Sec. 7201. Furnish Cars-Time Fired-Liability. Sec. 224. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation of any railroad company, receiver, or trustee, operating a line of railway at any point, that cars are desired upon which to ship any freight, it shall be the duty of such railway company, trustee or other person in charge thereof to supply the number of cars so required at the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the person or persons so applying therefor, in the order in which applications are made, without giving preference to any persons: Provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided further, that if the application be for thirty cars or more, the railway company may have ten full days in which to supply the cars. The time provided in this act for the furnishing of cars as hereinbefore set out shall be deemed a reasonable time, but this shall not be construed as excusing such railroad from the duty of furnishing such cars in a less time than the time mentioned in this act when a less time is reasonable, and the shipper makes application for such cars to be furnished in a less time: Provided, that whenever any railroad company is prevented from complying with such demand to furnish cars as aforesaid by any accidental or unavoidable cause, which could not by the use of reasonable foresight and diligence have been avoided, and supplies the same in a reasonable time thereafter, or offers to do so, then the liability for the damages herein provided for and for actual damages and attorney's fees shall not accrue. "Sec. 7202. Application. Sec. 225. Said application for cars shall state the number of cars desired, the place at which they are desired, and the time they are desired, provided that the place designated shall be at some station or public switch on the line of its road. "Sec. 7203. Damages. Sec. 226. When cars applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall pay to the party or parties so applying for them, the sum of five dollars per day, for each car failed to be 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, together with reasonable attorney fees, to be recovered in any court of competent jurisdiction; but nothing in this act shall in any wise affect the right or remedy of any shipper or other person, as the same may exist at common law or under any statute, to recover on account of failure, delay or refusal to furnish cars, nor to exempt in any wise any such railroad company from any of the provisions of the railroad laws of this state or from any of the obligations imposed upon railroad companies and common carriers by the common law." The petition alleged 99 days delay of cars at $5 a day, and also alleged actual damages amounting to $58.50, and prayed judgment accordingly, and also for $100 as an attorney's fee. Thomas R. Morrow, George J. Mersereau, John H. Lathrop, and J. D. M. Hamilton, all of Kansas City, for appellant. E. H. Batson, of Kansas City, for respondent. ROY, C. (after stating the facts as above). I. This case came to this court on the claim made by the defendant that the Kansas statute, in so far as it provided for the recovery of an attorney's fee, is contrary to the federal Constitution. Since the appeal that contention has been sustained in A., T. & S. F. Ry. Co. v. Vosburg, 238 U. S. 56, 35 Sup. Ct. 675, 59 L. Ed. 1199, L. R. A. 1915E, 953. the II. It is conceded by counsel that courts of one state will not enforce the purely penal statutes of another state. What is a penal statute in the contemplation of that Huntington v. Attrill, 146 U. S. loc. cit. 667, rule? That question is clearly answered in 13 Sup. Ct. 227, 36 L. Ed. 1123, where it is said: "Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal." That language was used with reference to the question now under discussion. We have been cited to no authority contrary to that ruling. We hold that the Kansas statute is not penal in the sense which forbids its enforcement in this state. If the respondent will, within ten days in this court, enter a remittitur for $100, the amount allowed in the judgment as an attorney's fee, the judg ment will be affirmed for the amount thereof, less the remittitur; otherwise it will be reversed and the cause remanded for a new trial. WHITE, C., concurs. PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All the Judges concur. FRIZELL GRAIN & SUPPLY CO. v. ATCHI- 1. LIMITATION OF ACTIONS 35(1)-ACTION FOR PENALTY-KANSAS RECIPROCAL DEMUR- St. Kan. 1909, §§ 7201-7203), subjecting a rail- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes alty or forfeiture shall be brought within one year, "exemplary damages" being damages given in addition to damages covering the actual loss to punish and make an example of the offender in torts committed with actual malice or deliberate oppression or violence, called also smart money, and vindictive, punitive, or retributive damages. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Exemplary Damages; Penal Laws.] 2. LIMITATION OF ACTIONS 169- WHAT LAW GOVERNS - CAUSE OF ACTION ORIGINATING IN ANOTHER STATE. Under Rev. St. 1909, § 1895, when a cause of action originating in Kansas is barred by the statute of limitations of that state, it is barred in Missouri. 3. LIMITATION OF ACTIONS 183(2) STATUTE OF LIMITATIONS-PLEADING. In an action on a cause originating in another state, the answer, alleging the existence of the statute of limitations of such other state as to such cause of action, and setting it out in hæc verba, properly pleads the statute. Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge. Suit by the Frizell Grain & Supply Company, a corporation, against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed. This, like the Coryell Case, 201 S. W. 77, decided at the same time herewith, is a suit under the Kansas Reciprocal Demurrage Act for delay in the furnishing of cars by defendant. Plaintiff had judgment for $2,120, including $200 as an attorney's fee. Defendant has appealed. The necessary sections of the Demurrage Act (Gen. St. Kan. 1909, $$ 7201-7203), were set out in the statement in the Coryell Case, and will not be copied here. The petition alleges that both plaintiff and defendant are corporations duly organized according to law; that the plaintiff has its principal office and place of business at Frizell, Kan., and that the defendant is engaged as a common carrier in operating a railway through said city. It sets out said statute. The cause of action, if any, accrued wholly in the state of Kansas, more than a year before the beginning of this suit. The answer contained a general de nial, and alleged the existence of the Kansas statute of limitations as follows: defendant, for the reason: (1) That said pretended statute of limitations applies only to actions instituted on penal statutes, or statutes creating forfeitures, and that plaintiff's action in this case is based upon a statute which has been by the Supreme Court of the state of Kansas construed to be not a penal statute, or one creating a forfeiture in the case of Star Grain & Lumber Co. v. Atchison, Topeka & Santa Fé Railway Co., 85 Kan. 281, 116 Pac. 906. (2) That the said pretended statute of limitations afford the defendant the right of its application, has not been properly pleaded in this action to even though said pretended statutes might be applicable to this cause of action if properly pleaded." At the trial there was a stipulation between the parties as to some of the facts. It contained this: "That the defendant now operates and did of railway in and through the city of Frizell, at all the times in the petition operate a line Kan., and now does, and at all of the times mentioned in the petition on file in this action did, maintain and operate a public depot in charge of a duly authorized agent of the defendant at said Frizell, Kan." There was evidence tending to support The abovethe plaintiff's cause of action. mentioned statutes of Kansas were duly proved. Thomas R. Morrow, George J. Mersereau, John H. Lathrop, and J. D. M. Hamilton, all of Kansas City, for appellant. E. H. Batson, of Kansas City, for respondent. ROY, C. (after stating the facts as above). I. Like the Coryell Case, this appeal came to this court on the claim made by the defendant that the Kansas statute, in so far as it provided for the recovery of an attorney's fee, is contrary to the federal Constitution. Since the appeal that contention has been sustained in A., T. & S. F. Ry. Co. V. Vosburg, 238 U. S. 56, 35 Sup. Ct. 675, 59 L. Ed. 1199, L. R. A. 1915E, 953. [1, 2] II. We held in the Coryell Case above mentioned that the Kansas statute, as to the per diem demurrage, was not a penal (criminal) statute in the sense that would prevent its enforcement in this state. But we hold that it is, in that respect, a penal statute within contemplation of the Kansas statute which bars after one year a civil "action upon a statute for penalty or forfeiture." Said Reciprocal Demurrage Act pro delay of each car as "exemplary damages," and also for the payment of all actual damages. Webster's definition of "exemplary damages" is: "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, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: Fourth.-Within one year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation." * ** * The reply contained a general denial and the following: "For its further reply, plaintiff states that said pretended statute of limitations, sought to be set up in defendant's first amended answer, is not available as a defense in the hands of the "Damages given, in addition to damages covering the actual loss, in order to punish, and make an example of, the offender in torts committed with fraud, actual malice, or deliberate oppression or violence; called also smart money, and vindictive, punitive, or retributive damages.' In 'Day v. Woodworth, 54 U. S. (13 How.) 363, 14 L. Ed. 181, it was said: "By the common law as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil ac here. tion, and the damages, inflicted by way of pen- ute of limitations of that state, it is barred alty or punishment, given to the party injured. In many civil actions, such as libel, slander, seduction, etc., the wrong done to the plaintiff is incapable of being measured by a money standard; and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant's conduct, and may properly be termed exemplary or vindictive rather than compensatory." That language was quoted with approval in Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632. Under that ruling the expression "exemplary damages" means "penalty." It was held in Udall Milling Co. v. Railway Co., 82 Kan. 256, 108 Pac. 137, that the per diem demurrage called for by that act was a forfeiture imposed by statute, and that the statute of limitations of one year as above set out applied. Respondent cites Grain & Lumber Co. v. Railway Co., 85 Kan. 281, 116 Pac. 906. That case merely holds that both the actual and the exemplary damages can be recovered in the same action. The opinion in that case begins thus: "This action was brought in the district court of Shawnee county to recover a number of forfeitures or penalties under the provisions of chapter 345 of the Laws of 1905 (Gen. Stat. 1909, § 7201), known as the mutual demurrage law." And it was there further said: [3] III. Respondent says that the Kansas statute of limitations is not properly pleaded. The answer alleges the existence of such statute, and sets it out in hæc verba. No better way of pleading it has been suggested. Williams v. Railroad, 123 Mo. 573, 27 S. W. 387, was decided in 1894. In that case both parties were residents of this state, and the cause of action accrued in Kansas. This court held that it would not enforce the statute of limitations of that state except in cases where both parties were residents of that state. But since that case was decided we have enacted section 1895 above quoted, by which we enforce the Kansas statute of limitations as to all causes of action originating in that state. The judgment is reversed. WHITE, C., concurs. PER CURIAM. The foregoing opinion of STATE v. LEWIS et al. (No. 20651.) CIENCY OF EVIDENCE. In a prosecution of two brothers for murder, evidence, as against the one who did not fire the fatal shot, held to show a conspiracy to murder an officer whenever necessary. 2. CRIMINAL LAW "All of the causes of action are alleged as arising out of several transactions of the same character, viz. the effort of one party to pro- 1. cure and the failure of the other to supply cars for the transportation of grain. The so-called penalties are in fact statutory damages. The damage to the plaintiff for failure to supply one car may, in fact, have been many dollars, or in case of the advance in the price of his grain, a delay in the time of the shipment may have been an actual benefit to him. The Legislature did not leave the question of the amount of damage to be settled by evidence, for the reason, perhaps, that the expense of litigating the question would render the law nugatory, but prescribed a certain sum which, no more and no less, could be recovered for the failure to comply with the law each day and for each car. The language of the act is that the party in default 'shall forfeit,' etc. This is called a forfeiture or penalty, but it is in lieu of damagesis in fact damages. The uniting of these causes of action is fairly within the contemplation of section 83 of the old Code of Civil Procedure." It thus seems that the Kansas statute on which the plaintiff founds its action, and the opinions of the Supreme Court of that state, This are squarely against the plaintiff. cause of action originated in that state. An action therefor in that state was clearly barred at the end of one year by said statute of limitations of that state. Section 1895 of our Revised Statutes provides: "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state." Under that section, when a cause of action originating in Kansas is barred by the stat ER CRIMES. 371(1)-EVIDENCE-OTH Evidence as to other crimes is generally competent to prove the specific crime when it tends take or accident, a common scheme or plan to establish motive, intent, the absence of misembracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial. 3. CRIMINAL LAW 1064(7)-APPEAL-INSTRUCTIONS-ASSIGNMENT OF ERROR. Where the motion for a new trial only mentions the instructions given or refused in a general way, and does not call attention to any specific propositions, such points are not before the court for review. 4. HOMICIDE 308(5)—INSTRUCTION-MURDER IN SECOND DEGREE. In a prosecution for murder, where it appeared that defendants were both armed when arrested and searched, that the gun of one was so concealed that the officer did not find it, and that such defendant, when the officer turned aside, shot him, and that both escaped, there was no basis for an instruction on murder in the second degree. 5. CRIMINAL LAW 789 (16)-INSTRUCTION— REASONABLE DOUBT. An instruction that if, on consideration of all the evidence, the jury had a reasonable doubt of defendant's guilt they should acquit, but that a doubt, to authorize an acquittal, ought to be a substantial doubt as to defendant's guilt, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |