CONCURRING OPINION.
LAMM, C. J.Purpose of Statutory Penalty.
That the law necessarily involves the idea of punishment, and to that end employs language (the word “forfeit”) appropriate only to a penalty, that the penalty is directed to the punishment of a public wrong as contradistinguished from a private wrong (State ex rel. v. Warner, 197 Mo. l. c. 664), I think, is clear.
■That the “clear proceeds” of such penalty belong to the public school funds and that no such penalty can be created payable to any other object or to any person without violating the Constitution, is also clear. [Sec. 8, art. 11, Constitution; State v. Clifford, 124 Mo. 492; State ex rel. Clay County v. Railroad. 89 Mo. 562; State ex rel. v. Warner, 197 Mo. 650.]
*658We have also ruled that where the penalty is created, as by way of fine on conviction of misdemeanor, or otherwise, then, the mere fact that the lawmaker later, in some separable and other provision of his act, directs that it shall be diverted from its constitutional object or destination does not destroy the law altogether or the penalty or the misdemeanor and fine. They stand. The diversion, only, is struck down. [State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. 650.]
But in none of those cases was .the language of the statute held in judgment the same as the language used in the statute in judgment in the instant case. In none of them did the lawmaker stamp upon the very penalty itself his purpose in creating it. He did not create it for an expressed purpose and write that purpose into the very language whereby he created the penalty so as to be part and parcel of it, and then make that purpose an unconstitutional one as here.
I have labored in my own mind to sustain the law, but am constrained to think it an unconstitutional exercise of the lawmaking power in the particular considered by my brother. It is much the same as if the lawmaker had said to the recalcitrant railroad: If you will, not obey the law and provide shipping facilities by rail, then by way of penalty you shall pay for building public roads whereby facilities for hauling may be encompassed. It thereby becomes a novelty, an experiment outside the Constitution and in spite of it. Indeed if an avowed unconstitutional purpose can ever make a law unconstitutional this law must fall.
I vote to concur.
SEPARATE OPINION.
WOODSON, J.*659 SoieaIty Purpose..
*658There can be no question but what that clause of the section of the statute under *659consideration, providing that the penalties and forfeitures prescribed for therein shall go to and paid into “the good roads fund of this State,” is clearly violative of section 8 of article 11 of the Constitution, which provides that they shall go to and be paid into and belong to the school funds of the State.
This seems to be conceded, by counsel for both parties; but their parting of ways seems to turn upon the question as to whether or not the Legislature would have enacted the statute as it now exists, had it not been for the clause giving the penalties to the road fund.
In my opinion, that question should be answered in the negative, and my reasons for so stating are, that the penalties prescribed by the Acts of 1872 and 1881, which constitute two of the three elements which make up the Act of 1905, were apparently sufficient to guarantee their obedience by the railroads of the country; that is, the penalties therein prescribed were in proportion to and in keeping with those imposed by the Legislature for the violation of kindred statutes governing no more serious offenses.
Moreover, the courts of the State cannot conscientiously close their eyes to the history and trend of legislation in this State, and in this country for that matter, which discloses an.ardent desire on the part of the lawmaking power to strain every point in favor of procuring funds for the construction, maintenance and improvement of public highways throughout the State and of the United States; and in my opinion the amendment of 1905 would never have been enacted had it not been for the insertion of the objectionable clause previously mentioned.
I am, therefore, of the opinion that the judgmént of the circuit court was erroneous, and that same should be reversed with directions to enter judgment for the defendant.