State ex rel. Judah v. Fort

• Decision Date: 25 March 1908
• Parties: THE STATE ex rel. A. JUDAH v. JAMES L. FORT, Judge
• Court: Missouri Supreme Court

109 S.W. 737

210 Mo. 512

THE STATE ex rel. A. JUDAH v. JAMES L. FORT, Judge

Supreme Court of Missouri

March 25, 1908

Peremptory writ awarded.

A. L Cooper and Frank M. Lowe for relator.

(1) Prohibition is the proper remedy. State ex rel. v Elkin, 130 Mo. 90; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Fort, 178 Mo. 518. (2) The act created an additional division to be known as Division Two of the criminal court of Jackson county, Missouri, and under section 8 the duty of Judge Wallace was clear, and the cause should have been transferred to Division Two of the criminal court of Jackson county. State v. Shipman, 93 Mo 157. (3) The act is valid. State ex rel. v. Dabbs, 118 Mo.App. 663; Coffey v. Carthage, 200 Mo. 616; State v. Etchman, 189 Mo. 648. (4) The citizens and bar of Jackson county have recognized that Division 2 was created to meet a condition in this thriving and populous community; to expedite the transaction of the criminal business of this county; and to save costs and expense to the State incident to numerous defendants being kept in prison awaiting trial; and the only judicial expression sustaining the order calling in respondent, to which our attention has been called, is that sending this, and some 1200 other misdemeanor cases to Division No. 2, as prayed for in the various applications for changes of venue, would be violative of some "inexorable rule of law that a defendant cannot choose his own forum which he would be doing if the cases were sent to Division No. 2, such choice of the forum being reserved to the judge against whom the applications were filed." We have been unable to find any authorities sustaining such a position, and believe that none exists. Expressions of this court are all to the contrary, and this court, as well as both courts of appeals, have uniformly held that a change of venue is a pure matter or creation of statute, and is regulated and controlled only by the provisions of the statute applicable.

I. B. Kimbrell and R. H. Field for respondent.

(1) The only possible question on the petition in this case, is, did the Missouri legislative act approved March 19, 1907, repeal or amend section 2597, Revised Statutes 1899, as to the criminal court of Jackson county? Otherwise, it cannot be doubted that the criminal court of Jackson county had the right under the general statute (section 2597) to select and call in Judge Fort or the judge of any other circuit court in this state to try the case of State v. Judah, for running a theatre on Sunday. State v. Gillham, 174 Mo. 671. This very right as belonging to the Jackson County Criminal Court was affirmed in State v. Hudspeth, 159 Mo. 210. See, also, State v. McCarver, 194 Mo. 737. (2) The Missouri legislative act, approved March 19, 1907, contains no words expressing a repeal of section 2597, Revised Statutes 1899, neither does the said legislative act prohibit the judge of the criminal court from exercising the prerogative conferred by section 2597. Hence, the criminal court of Jackson county has the prerogative, as before the Act of 1907, to call in an outside judge under section 2597. Repeals by implication are not favored, and particularly is this true when it comes to cutting down and taking away the prerogative or jurisdiction of a court. This principle is emphasized in the case of State ex rel. v. County Court, 38 Mo. 403. See, also: Tackett v. Vogler, 85 Mo. 483; St. Louis v. Hollrah, 175 Mo. 845; Lockland v. Walker, 151 Mo. 213. (3) The first observation that may be made on this legislative act is this: While section 1 purports to create an additional division of the criminal court of Jackson county, section 2 seems to require that the proposed second division of the criminal court shall come into existence and operation only on the requisition of the regular judge of the criminal court; and that the existence and operation of said Division 2 of the criminal court shall finally adjourn and "stand adjourned until the assistance of said judge is again needed." So that it is not for the trial of change of venue cases that the regular judge of the criminal court is authorized to call into existence and operation the said Division No. 2 of the criminal court. It is therefore respectfully submitted that section 8, on which relator bases his right to be tried by the Hon. E. E. Porterfield, applies only when both of the created divisions of the criminal court are in esse and in operation, as provided by section 2 of the act, which is not alleged in the petition herein. This court has characterized it as against the general principles of the law and the administration of justice to allow a defendant in a criminal case to select his own judge. State ex rel. v. Wofford, 119 Mo. 383. (4) A fair construction of section 9 of the act reserves to the judge of the criminal court all of his prerogatives conferred in section 2597, Revised Statutes 1899. (5) Conceding, on the holding of this court in Coffee v. Carthage, 200 Mo. 616, that the Act of 1907 would not be a special law if it applied equally to all of the judges of the circuit court of Jackson county, it does not so apply. This legislative act is so worded as to give all of the jurisdiction and prerogatives of the regular judge of the criminal court to the judge of Division 7 of the circuit court of Jackson county. This jurisdiction and prerogative is given to him and to none of the other seven circuit court judges in Jackson county. We respectfully submit that this 1907 legislative act is from that point of view a special law and is prohibited by section 53 of article 4 of the State Constitution, and that it is void both as a substantive enactment and as an indirect repeal of the general statute (sec. 2597, R. S. 1899). State v. Hill, 147 Mo. 63; Ashbrook v. Schaub, 160 Mo. 107; State v. Etchman, 189 Mo. 160; Henderson v. Koenig, 168 Mo. 356. (6) The act contains no provision governing changes of venue in any other county than Jackson county, nor any other court than the criminal court of Jackson county; hence, to hold this special legislative act as taking away from the criminal court (as here contended by relator) the prerogative to call in the judge of another circuit necessarily construes the special legislative act as a repeal of section 2597 as to Jackson county only, and to make it violative of the last clause of section 53, article 4 of the State Constitution, which reads as follows: "Nor shall the General Assembly indirectly enact special or local law by the partial repeal of a general law." Henderson v. Koening, 168 Mo. 356. (7) Nor can the act stand as an amendment to section 2597, Revised Statutes 1899. Construed as an amendment to section 2597, the act is unconstitutional and void, because it does not set out section 2597 or state how it is amended, as is required by the Constitution, article 4, section 34. French v. Woodward, 58 Mo. 66; Copeland v. Pirie, 26 Wash. 481; Board of Fire Com. v. Trenton, 53 N. J. L. 566; 26 Am. and Eng. Ency. Law (2 Ed.), 706.

LAMM, J. Fox, Graves and Woodson, JJ., concur --

Woodson in separate opinion. Gantt, C. J., Burgess and Valliant, JJ., dissent -- Gantt and Valliant, JJ., in opinions filed.

OPINION

In Banc.

Prohibition.

LAMM J.

-- This is an original proceeding in prohibition.

Such preliminary and intermediate steps were had in the cause that, when finally submitted, it stood on an implied concession that allegations of fact well pleaded in the petition were true. Respondent's counsel make a statement of the case admirably fair and colorless, full and brief. We borrow and use it for the purposes of this opinion, viz.:

"The relator, A. Judah, was indicted in the criminal court of Jackson county, Missouri, at the September term, 1907, for running a Sunday theater in Kansas City, Missouri. Afterwards, on or about October 24th, 1907, by affidavit of himself and two witnesses, relator disqualified the Hon. William H. Wallace, the judge of the criminal court to try said cause. Afterwards on November 30th, the Jackson County Criminal Court made an order, setting the case down for trial January 7th, 1908, before the Hon. James L. Fort of Stoddard county, Missouri, Judge of the Twenty-second Judicial Circuit in this State, and notified and requested Judge Fort to appear and try the said cause in the Jackson County Criminal Court.

"The relator asks in the petition for prohibition herein, that Judge Fort be prohibited from trying the said cause in the criminal court, on the sole ground that the Hon. William H. Wallace, judge of the criminal court, was by the Missouri legislative act, approved March 19th, 1907, not then allowed to call in Judge Fort or any judge of another circuit under the general statute (Sec. 2597) and was not then allowed to call in any judge to try said cause except the Hon. E. E. Porterfield, judge of Division No. 7 of the circuit court of Jackson county, Missouri, at Kansas City."

Referring to the foregoing statement, we shall assume that counsel mean by "section 2597" of the Revised Statutes, a new section of that number substituted for the old section, repealed in 1905 (Laws 1905, p. 131). We shall assume also that counsel, when they say that Judge Wallace can only call in Judge Porterfield, judge of Division No. 7 of the circuit court of Jackson county, Missouri, mean to say that he can only call in the judge of Division No. 7, whomsoever he may be at the time.

It serves a wholesome purpose -- a judicial purpose -- to say that whatever fervor or color crept into the case in any of its preliminaries or in oral argument, has been cast aside, and it is now put to us by briefs presenting merely a serene and dignified legal question relating to a change of venue sta...