his possession, or under his control, belong- See discussion in notes to Robey v. State, ing or owing to the debtor. 89 Am. St. Rep. 405. However, the relator's right to interplead is not here directly in question. And whether the early decisions of our Supreme Court respecting that question are any longer applicable and now controlling upon us is a matter which we need not undertake to determine. Hence we make no decision as to this particular point. The record does disclose, however, that the relator consented and agreed that the money be paid to the constable pending the determination of the garnishment proceeding. The attorney who then represented her testified at the trial that he did not bind his client to an interplea. However, it seems clear that the agree ment contemplated that the relator's right to the fund would abide that proceeding, however much she may have misconceived her rights in the premises. The justice rendered judgment on the garnishee's answer, directing the constable to pay over to the execution creditors the fund which had in fact come into his hands with the relator's consent and by virtue of her agreement. It then became the duty of the constable to pay over the money in accordance with the mandate of that judgment. And it would seem that the relator should be held to be estopped to proceed upon the bond as for damages suffered by reason of such payment. It Here the bond was to indemnify the constable and the relator for an act to be done by the officer in obedience to the command of a judgment. The judgment of the justice was a valid and subsisting judgment. ordered that the fund which had been deposited with the constable by the garnishee be paid over to the execution creditors. The constable, as an officer of the court, was under a legal obligation to obey the command of the judgment; he had no alternative to do otherwise and could have entertained no doubt as to his duty in the premises. His act in paying over the money in compliance with the judgment furnished no consideration for the execution of the bond. The latter must therefore be held to be void for want of a consideration to support it. The facts to which we have referred above were set up in defense and were fully established by the evidence. The court should therefore have directed a verdict for the de fendants. The judgment should be reversed. It is so ordered. REYNOLDS, P. J., and NORTONI, J., con cur. JOHNSON v. CHICAGO, M. & ST. P. (Kansas City Court of Appeals. Missouri. MANDED. Rev. St. 1909, § 5425, provides that every railroad company shall forfeit and pay as a penalty" for every person or employé dying from negligent injuries "the sum of not less than $2,000 and not exceeding $10,000, in the discretion of the jury." Held, that the statute was penal only as to the $2,000 and compensatory as to any excess, and plaintiff might sue for the penalty alone; that is, for $2,000. [Ed. Note. For other cases, see Death, Cent. Dig. 10; Dec. Dig. § 7.*] [4] But, however this may be, we think it clear that no action can be maintained upon the bond for want of a valid consideration to support it, even could the latter be regarded as a voluntary obligation, as respondent's counsel contend. After the entry of the judgment of the justice, it became the plain duty 1. DEATH (8 7*)- ACTIONS - AMOUNT DEof the constable to pay over the fund in his hands as that judgment directed. It has been frequently held that a contract to indemnify a sheriff, or other ministerial officer, for omitting to do that which he ought to do is void as against public policy. See Harrington's Adm'r v. Crawford, 136 Mo. 467, 38 S. W. 80, 35 L. R. A. 477, 58 Am. St. Rep. 653; Id., 61 Mo. App. 221, and authorities cited. On the other hand, an undertaking to indemnify an officer against the performance of a clear and unquestionable official duty is supported by no consideration and is likewise void. If the act which the officer is required to perform is necessarily wrongful or necessarily rightful, he is not entitled to be indemnified; and any bond to indemnify him must be void either as being against public policy or as not being supported by a valid consideration. The act must be one concerning which the officer may properly entertain a reasonable doubt; if it is something which Action by Elizabeth Johnson against the the law forbids him to do he should refrain Chicago, Milwaukee & St. Paul Railway therefrom, whether indemnified or not, and, Company. From an order granting defendif it is an act which he must know that it ant a new trial after verdict for plaintiff, is his clear duty to perform, then he must plaintiff appeals. Case transferred to Superform it without exacting an indemnity. [ preme Court. 2. DEATH (§ 9*)-"FORFEIT"-PENalty. [Ed. Note. For other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.* vol. 3, pp. 2893-2899; vol. 8, p. 7665.] Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge. J. Harold Olson and T. J. Madden, both of, tle more accurately, can the plaintiff under Kansas City, for appellant. Frank Hager- said section limit her demand to $2,000, or man, E. E. Ball, and Clyde Taylor, all of Kansas City, for respondent. TRIMBLE, J. Plaintiff brought this suit under section 5425, R. S. Mo. 1909, to recover a penalty of $2,000 for the death of her husband caused by the alleged negligence of defendant's servants whilst running one of its trains. must she sue for whatever amount may be assessed by the jury in its discretion within the limits provided by the statute, namely, a minimum of $2,000 and a maximum of $10,000? [1] Prior to the amendment of 1905, the amount recoverable for a death coming within the terms of this statute was placed at the fixed and immovable sum of $5,000. The husband, while lying drunk upon the Plaintiff could then recover neither less nor railroad track, was run over and killed by more. The words of the statute as to the defendant's train as it was being backed penalty were: "Shall forfeit and pay for out of the Union Depot in Kansas City where every person or passenger so dying, the sum it had just delivered its passengers. A pilot, of five thousand dollars." Under the section who had charge of the train, and who conas it thus stood, prior to 1905, it was held trolled it the same as an engineer, was sta- that, as the amount specified in the statute tioned on the rear end. In substance the was absolutely fixed at $5,000, no more and petition claimed that the track where deno less, a suit could not be maintained ceased was killed was in a busy part of the which sought to recover less than that sum; city was used as a pathway by pedestri- that under such a statute a plaintiff must ans at all times of the day and night, which declare for and seek to recover the precise fact was known to defendant, and it was or full measure of the penalty therein prothereby the duty of defendant's servants, vided. Casey v. St. Louis Transit Co., 116 and especially the duty of this pilot, to keep Mo. App. 235, loc. cit. 260, 91 S. W. 419; s. a vigilant lookout for persons on the track c., 205 Mo. 721, loc. cit. 723, 103 S. W. 1146. to avoid injuring them; that the pilot, after Since those decisions were rendered, howhe saw deceased on the track, could have ever, the statute has been amended (Laws avoided killing him, but negligently failed to 1905, p. 135). That part of the section fixdo so. The petition closed with the following the amount recoverable now reads: ing: "That by reason of the premises plaintiff has been damaged and defendant should be made to forfeit and pay as a penalty the sum of $2,000, for which amount, with the costs of this action, she demands judgment." The answer was a general denial and a plea of contributory negligence, to which a reply was filed, and the trial began. Defendant objected to the introduction of any evidence for the reason that the petition did not state a cause of action. The sole ground of this objection was that the statute on which the suit is based provides a certain penalty, but that penalty is not declared upon nor demanded in the petition, and therefore plaintiff has not brought her petition and case within the terms of the statute; in other words, since the petition did not declare upon the penalty provided in the statute, it stated no cause of action. This As the Supreme Court adopted the opinion objection was overruled, and the case pro- of the St. Louis Court of Appeals in the ceeded to verdict and judgment in plaintiff's Casey Case, the reasons underlying both of favor for $2,000. On motion for a new trial, the above-named decisions are to be found however, the above point was again raised, in an examination of that opinion. The funand the trial court sustained defendant's damental reason appearing therein why the contention in regard thereto and granted a plaintiff could not sue for less than the fixnew trial for the reason that, the suit being ed and precise sum named by the statute on section 5425, it does not lie within the was that the statute gave said sum as a penpower of the plaintiff to bring suit for a sum alty; and, as the statute was thus penal, it or penalty less than that provided by the must be strictly construed and "the suing section, and therefore a suit for the sum of party must bring himself strictly within its $2,000 is not maintainable. Plaintiff appeal-provisions and, among other things, demand ed from the order granting a new trial. And and recover the precise amount of the penal the sole question presented is: Can a plaintiff, under the section in question, as it now stands, sue for less than the maximum pro "Shall forfeit and pay as a penalty, for every such person, employé 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." The question now is: Has this change in the statute rendered it permissible for the plaintiff to do in this case what she could not have done under the statute as it formerly stood? Unless this amendment has so changed the law that the reasons underlying the above-named cases have ceased to exist, then said cases require with absolute certainty that the judgment of the lower court be affirmed. Have these reasons ceased to exist by virtue of the amendment? To answer this question we must first examine these reasons and then see whether or not the amendment has obviated or destroyed them. sum therein provided." Casey v. Transit Co., supra, 116 Mo. App. loc. cit. 252, 91 S. W. 425. tire amount from one limit to the other is penalty or has in it the elements of penalty, it would seem that, if the language of the statute is accepted as it reads, then the element of penalty extends throughout the whole of the amount specified by those limits. It says: "Shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury.” [2] The word "forfeit" implies a penalty, and the words "as a penalty" expressly say it is such. So that on the mere face of the statute it would seem that the entire amount allowable was intended as a penalty. And in Young v. Railroad, 227 Mo. 307, 127 S. W. 19, the Supreme Court held that the whole amount allowed by the statute between the two limits was penal in character; and in Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561, the holding is that it is both penal and remedial or compensatory (that is, that the penal feature exists along with the compensatory feature throughout the range fixed by the statute between the two limits). But in Boyd v. Railroad, decided March 28, 1913, and reported in 155 S. W. 13, loc. cit. 17 (but not yet published in our state reports), the Supreme Court expressly overrules the Young Case in so far as it holds that the statute is penal throughout, and also expressly overrules the former decision in the Boyd Case in 236 Mo. in so far as it holds that there is anything penal existing in the range permitted above $2,000. And, in lieu of the doctrine announced by either the Young or the first Boyd Case on this point, the Supreme Court announced the rule that said section, as it now stands, is penal so far as it fixes the amount of recovery at not less than $2, statute then stood, this penal feature inher- | swer to this question whether or not the ened in and existed throughout the whole of the $5,000 allowed. It necessarily must have done so since the amount was fixed at that precise sum, no more and no less, and if penal at all was penal throughout. It is truethe statute was held to be both remedial and penal, but its remediality, if any, and its penality existed in and pervaded the whole sum named, thus making the whole sum a penalty. In other words, as the amount named by the statute was one fixed and certain sum, there was no room for saying that a part of it would be considered penal and the remainder remedial. Both the penal and remedial features inhered in the amount throughout. Consequently, whatever sum a plaintiff might seek to recover would have in it this penal feature. And, if a plaintiff would seek to recover a penalty provided by the statute, he must ask for that penalty and no other. As said in Casey v. Transit Co., 116 Mo. App. 252, loc. cit. 254, 91 S. W. 419, 426, speaking of the rule of strict construction, as applied to the penal and not the remedial feature of the statute: "It is manifest from the use of the word 'forfeiture' by the Legislature, together with the consideration that no evidence is to be heard and no day in court to be had on the amount of plaintiffs' damage and the measure of their recovery, that it was intended that the amount named in the statute should be a penalty inflicted as a punishment upon the person guilty of the wrongs therein sought to be prevented. Applying, then, the rule of strict construction to the penal feature of the statute, the conclusion is that the penal sum therein fixed at $5,000 means $5,000. It does not mean $4,500 no (any) more than it means $450 or $45. Indeed, it seems that the Legislature intended that the perpetrator of the| 000, but is remedial and compensatory as to mischief sought to be prevented should pay the full penalty levied and did not intend that the private citizen might fritter away that penalty provided by virtue of the authority of the police power of the state for the purpose of preventing wrongs, so that conditions might arise where one offender would pay $5,000 and another be permitted to pay $4,500 and another a much less sum, as might suit the convenience of the party putting the statute into operation by his suit." All of which means that as the whole of the $5,000 is penal (that is, the penalty inheres in all of it), as shown by the language of the statute, and the fact that no evidence is admissible on either side as to the amount of damages, then a plaintiff must seek to recover the penalty provided and will not be allowed to whittle down the state's penalties to suit his or her convenience, thereby making different penalties in different suits for the same character of acts. But in the statute, as now amended, does the penal feature inhere throughout the entire sum from the minimum limit of $2,000 any recovery in excess of that amount. Of course this decision, in holding that the statute, by fixing the minimum at $2,000, is purely penal, does not say, in express terms, that the excess is purely compensatory; in other words, it does not expressly say that the penal feature does not extend above the $2,000 and inhere therein throughout the range given along with the compensatory feature. But evidently that is the holding, else why expressly overrule the Boyd decision in 236 Mo., which held that the whole range was both penal and compensatory? It is also apparent that in this last Boyd Case there is a distinction between a case in which only the penalty is demanded and those in which both penalty and compensation are sought. On page 16 of 155 S. W. the court say: "Upon a full consideration of this case in banc, we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425, supra, penal in their nature, so far as said section fixes the amount of recovery at not less than $2,000, in, by not offering any evidence showing that she is entitled to compensation. As the penalty is the lowest amount provided, it is no injustice to the defendant to permit plaintiff to forego the element of compensation either in her petition or in her evidence. If she is to be compelled to ask for it in the one, why should she not be refused entirely if she does not seek it in the other? It does not lie in defendant's mouth to complain because it is not called upon to pay a larger sum. to recover under said section a larger sum her petition or, if she has demanded it therethan $2,000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered. In other words, a recovery under section 5425, R. S. 1909, is penal up to the sum of $2,000, but the extent to which a plaintiff may recover, if at all, in excess of $2,000 under that section is remedial and compensatory." That is to say, if a plaintiff sues for penalty only, no evidence as to age, health, and capacity of the deceased is admissible, since it could not help in any way, as the penalty must be applied regardless of these considerations, if the jury believe the deceased's death was within the terms of the statute; but, if the plaintiff "seeks to recover a larger sum than $2,000," such evidence is admissible and should be given. Evidently, therefore, there is a distinction between a suit for the bare penalty and one for the penalty with compensation. Because, if every plaintiff suing under the statute must demand the maximum amount in the petition, what is the necessity of saying that the statute is penal as to the $2,000 "but where a plaintiff seeks to recover a larger sum than $2,000" evidence as to the loss plaintiff has sustained must be given? If all petitions must demand the full amount, there was no necessity for using such language, but the court could merely have said that in all such suits evidence showing plaintiff's damage was admissible. It would seem, therefore, that the last Boyd Case holds that the statute is penal only as to the $2,000 and compensatory as to anything in excess of that sum. If so, then the state has given to plaintiffs in such cases not merely one right but one of two rights, namely, the right to sue either for the penalty alone or for both penalty and compensation. And, if this is true, who is to say to plaintiff, "You cannot sue merely for the penalty but must sue for both penalty and compensation"? Grant it that a plaintiff is not allowed to vary or change the penalty prescribed by the state for the commission of a certain act. To sue for the $2,000, under the statute as it now stands, is not to vary the penalty; it is to demand the precise sum fixed as penalty. The only thing plaintiff has varied, or rather given up, is her right to demand compensation. It is not certain that she has given up any compensation, since the question whether she is entitled thereto or not depends on whether she has suffered damage. But whether she has given up her right to be compensated or not is not a matter of state concern. The matter of compensation is hers to give up or sue for as she chooses. She may give it It is argued that, if the statute is thus construed so as to permit a plaintiff to sue for less than the maximum, then we are placing on it a construction which will render it unconstitutional. With its constitutionality, of course, we have nothing to do. However, this claim that such a construction will render the statute unconstitutional is based on the view that the statute is penal, not only as to the $2,000, but also as to everything in excess of $2,000, and that to allow a plaintiff to sue for any amount less than $10,000 is unconstitutional in that it is permitting her to fix the penalty; that in such case the penalty is fixed, not by the legislative power, but by the plaintiff in each particular case-citing Cigar Makers, etc., v. Goldberg, 72 N. J. Law, 214, 61 Atl. 457, 70 L. R. A. 156, 111-Am. St. Rep. 662. Since the Supreme Court in the last Boyd Case, supra, has said that the statute is penal as to the $2,000 but is compensatory as to the excess, there is no basis upon which to rest the claim that such construction would make the statute unconstitutional. But whether it is or is not thus rendered unconstitutional is a question for the Supreme Court to pass upon whenever its constitutionality is attacked. If the $2,000 is all penalty, and all over that is merely compensation, then the legislative power has fixed the penalty at $2,000, and plaintiff, by suing for $2,000, is not fixing the penalty but is demanding what has already been fixed by the Legislature. The view that the statute is penal throughout the whole range between the two limits fixed therein, as announced in the Young Case, supra, and the view that it is both penal and compensatory as to anything in excess of $2,000 announced in the first Boyd Case, has been repudiated by the Supreme Court in the last Boyd Case, since in it the two above-named cases are expressly overruled. It is urged that the penalty is to be fixed "in the discretion of the jury" and that to allow plaintiff to sue for $2,000 is to take away that discretion. This again assumes that the excess over $2,000 is penal in its nature. But if it is not, and only the $2,000 is penal, then as to the penalty the jury has no discretion. If it believes that plaintiff was killed within the terms of the statute, then the penalty is fixed, and its discretion of such holding is that plaintiff can sue for the penalty prescribed without asking for compensation. The case should therefore be reversed and remanded, with directions to set aside the order granting a new trial and to enter judgment for plaintiff on the verdict. But inasmuch as this holding involves the proper construction to be placed on the last decision in Boyd v. Railroad, and thereby there is brought into this case the question of the constitutionality of the statute, as hereinbefore stated, the case should be transferred to the Supreme Court. We have deemed it advisable, however, before doing so, to write this opinion expressing our views, so that our reasons for transferring it may be known and understood. the recovery. Even though a plaintiff bring the Boyd Case by the Supreme Court is that a suit asking for the maximum amount, yet, the statute in question is penal only as to if no evidence is offered upon which the jury the $2,000 and compensatory as to anything can exercise its discretion as to compensa- in excess of that amount, the logical result tion, the amount allowed cannot exceed $2,000, because in that event there is nothing upon which a verdict for a greater amount can be based. "The discretion of the jury" has nothing upon which to operate. But as to the $2,000, if the killing was within the terms of the statute, there is no discretion, the penalty must be given. If, now, a plaintiff, by a mere failure to offer evidence on the compensatory feature, can take from the jury the discretion to award a larger amount than $2,000, what is there to prevent such plaintiff from drawing her petition and bringing her suit in such way as to limit her recovery to the penalty purely and thereby limit the jury to the precise sum of $2,000? In either case the jury is limited as to the amount of its verdict. And in both, if the jury believes the testimony tending to show that the death occurred under such circumstances as the statute requires, there is no discretion to be exercised, but the jury must impose the pure penalty fixed by the statute, namely $2,000. So that after all the question comes down again to whether the last Boyd Case means that as to the $2,000 1. MUNICIPAL CORPORATIONS (§ 670*)-SIDEthe statute is penal but not as to any amount From the language Case transferred. All concur. STATE ex rel. ELLIS v. MULLIGAN et al. (Kansas City Court of Appeals. Missouri. June 30, 1913.) WALKS OBSTRUCTION -- [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1446; Dec. Dig. § 670.*] LOADING DOCKin excess of that sum. The owner and lessee of a business buildused, as well as from the fact that it ex-ing constructed flush with the sidewalk built a pressly overrules both the Young and the loading dock covering the entire sidewalk space former Boyd Case (both of which held that and extending from the building to the curb. The dock was 75 feet long, 12 feet wide, and it was penal as to such excess), we accept from 3 to 32 feet high, with cleated sloping apit as holding that it is penal only as to proaches at each end, so that travelers over the the $2,000 and not as to any amount above street, on reaching the dock, must either step that sum. If this is the correct view, then out into the street and walk to the corner in the roadway or else climb the cleated incline plaintiff has a right to sue for the penalty and pass over the dock, which was generally only and to forego her right to compensation, occupied with merchandise being loaded out of if she was entitled to any compensation. or unloaded into the building. Held, that such dock constituted a public nuisance and was It is urged that plaintiff brought this suit subject to abatement by the state on relation of for $2,000 only in order to keep out of the an adjoining property owner, regardless of the federal courts. But if, under the statute, fact that the building at which it was located only the $2,000 is penalty, then she has a was in the wholesale and manufacturing section of the city. right to sue for that alone. And, if she has a right to sue for it alone, her reasons for not also suing for compensation cannot be inquired into nor impugned. So far as that is concerned, as the penalty sued for is the lowest amount recoverable under the statute, she could in turn charge defendant with insisting that it be sued for the larger amount solely in order that the case could be taken to the federal court. In either case it is not a question of the motives of litigants but of their rights under the law. The same is to be said in response to the objection that such a construction will enable a plaintiff to work a fraud upon the jurisdiction of the courts. There can be no fraud worked upon the jurisdiction of the courts by bringing a suit for the penalty, if there is a clear line of demarcation between the penal and compensatory features of the statute. As the holding of the last decision in 2. MUNICIPAL CORPORATIONS (§ 697*)-PUBLIC NUISANCE-OBSTRUCTION OF SIDEWALK -LOADING DOCK-SUIT FOR INJUNCTION. Where the owner and lessee of a business building constructed a loading dock covering the entire sidewalk space from the building to the curb, which constituted a nuisance and an by the prosecuting attorney of the county in illegal obstruction of the walk, a suit in equity the name of the state, at the relation and to the use of the owner of an adjoining building, to enjoin the further maintenance of the obstruction and to compel the removal thereof was the proper remedy. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.*] 3. MUNICIPAL CORPORATIONS (§§ 680, 681*)— STREETS OBSTRUCTION LICENSE AU THORITY OF CITY. A city has no power to license an individual or private concern to obstruct a sidewalk by |