
    EMERY, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    St. Louis Court of Appeals,
    February 23, 1909.
    APPELLATE PRACTICE: Jurisdiction: Constitutional Question. In an action against a railroad company for the penalty provided by section 1110, Revised Statutes 1899, where the defendant raised the question that that section was unconstitutional because in violation of section 25 of article 2 of the Bill of Rights and in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States, a constitutional question was raised such as to deprive the Court of Appeals of jurisdiction and require the case to be certified to the Supreme Court.
    Appeal from Butler Circuit Court. — Non. J. 0. Sheppard, Judge.
    Certified to Supreme Court.
    
      W. F. Evans and James Orchard for appellant.
    
      David W. Hill and Ernest A. Green for respondent.
   GOODE, J.

This is an action for a penalty of five hundred dollars provided by section 1110 of the Revised Statutes of 1899, and the penalty is alleged to have accrued in consequence of defendant’s failure to construct and maintain suitable ditches or drains along the .side of its roadbed to plaintiff’s farm to a certain natural drainage or slough. The petition is in’ three counts, each asking the penalty. One of the defenses interposed in the answer to each of the counts is that section 1110 of the statutes on which the case is founded, is unconstitutional in authorizing the property of railway companies to be taken for private use without just compensation and imposing on the company an excessive penalty. The part of the Constitution said to be violated is section 25 of article 2 of the Bill of Rights. It is further said in the answer that section 1110 of the statutes is in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States. The answer sets out the provisions of those two clauses of the State and National Constitutions and insists they are violated. This defense was put forward in an instruction requested by defendant and refused by the court below and eyror is assigned in the motion for new trial for the refusal of said instruction, as well as others. Defendant’s assignment of errors in its brief specifically assigns that the appeal was erroneously granted to this court instead of the Supreme Court, to which it should have been granted because a constitutional question was involved. It seems to us the jurisdiction of the appeal is in the Supreme Court for a constitutional question was raised and insisted on throughout the trial and duly preserved by exceptions. [Brown v. Railroad, 175 Mo. 185.]

It is, therefore, ordered the case be transferred to-the Supreme Court.

All concur.  