Ex parte Renfrow

• Decision Date: 12 December 1892
• Parties: Ex Parte Renfrow
• Court: Missouri Supreme Court

20 S.W. 682

112 Mo. 591

Ex Parte Renfrow

Supreme Court of Missouri

December 12, 1892

Writ denied.

James Orchard and L. O. Nieder for petitioner.

(1) The courts will take judicial notice of the official records of the census, so far as they relate to the state, -- counties and cities in the state. State ex rel. v. Herman, 75 Mo. 340, 352; State ex rel. v. County Court, 89 Mo 237. (2) The constitutional provision requiring a county to have over fifty thousand inhabitants to authorize the establishment of a criminal court is mandatory. "If authority is given expressly, though by affirmative words upon a defined condition, the expression of that condition excludes the doing of the act authorized under other circumstances than those so defined. Expressio unius exclusio alterius." North Stafford, etc., v. Ward L. R. 3 Exch. 177; 12 R. I. 651; Smith v. Stevens, 10 Wall.321; 1 Kent's Commentaries, 467, note d; 1 Sugden on Powers, 258, et seq.; City v. Whitney, 36 Conn. 373; Dist. etc. v. City, etc., 7 Iowa, 262; Coast Line, etc., v. City, 30 F. 649; Mayor, etc., v. Ray, 19 Wall. 476; Thomas v. Railroad, 101 U.S. 82; Broom's Maxims, 651, 654. (3) The court will pass on the constitutionality of a law in a habeas corpus proceeding. Ex parte Siebold, 100 U.S. 371; Ex parte Clark, 100 U.S. 399; Ex parte Rosenblatt, 14 P. 298; Brown v. Doffs, 66 Iowa 193; Ex parte Burnett, 30 Ala. 461; Ex parte Rollins, 80 Va. 314; Ex parte Mato, 19 Tex.App. 112; In re Payson, 23 Kan. 757; Ex parte Snyder, 64 Mo. 58. The constitutionality of a statute creating a court goes to affect its jurisdiction. Darah v. Westbridge, 44 Tex. 388. (4) The legislature may exercise all the powers which are properly legislative, and which are not taken away by our own or by the federal constitution. Field v. People, 3 Ill. 79; Emerick v. Harris, 1 Binn. (Pa.) 416, 420; Cooley on Constitutional Limitations, 192; Bishop on Written Law, sec. 92; Sharpless v. Philadelphia, 21 Pa. St. 147, 161; Weister v. Hade, 52 Pa. St. 474; Cooley on Constitutional Limitations, 10, 11; Endlich on Interpretation of Statutes, sec. 535, pp. 753, 754. (5) Constitutional provisions are absolutely mandatory, and in no case regarded as directory only, to be obeyed or not within the discretion of either or all the departments of the government. Hunt v. State, 22 Tex.App. 396; Varney v. Justice, 6 S.W. 457. (6.) Section 53 of article 4, subdivision 14, constitution of Missouri, prohibits the legislature from passing any special or local laws creating offices or prescribing the powers and duties thereof in counties, etc. The criminal court of Greene county is a county office, established and the duties defined and fees regulated by a special act of the legislature, passed April 26, 1889. That being the case, it is void on its face. State ex rel. v. Herman, 75 Mo. 340; State ex rel. Board v. County Court, 89 Mo. 237.

John M. Wood, Attorney General, and Edward Robb, for the State.

(1) The courts will never "declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond a reasonable doubt." A reasonable doubt must be solved in favor of the legislative action, and the act sustained. Cooley's Constitutional Limitations [6 Ed.] p. 216, et seq.; State v. Hope, 100 Mo. 347; State ex rel. v. Pond, 93 Mo. 606; State ex rel. v. Railroad, 92 Mo. 137; State v. County Court, 51 Mo. 82. (2) Where the legislature, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within constitutional limits and observed the constitutional conditions, the courts are not at liberty to inquire into the proper exercise of the power. "They must assume that the legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and, if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding." Cooley on Constitutional Limitations [6 Ed.] 220, et seq.; State v. Wiley, 109 Mo. 439; State v. Rich, 20 Mo. 393; State ex rel. v. County Court, 50 Mo. 317. See separate opinion in same case, p. 325; Cooley on Constitutional Limitations, pp. 52, 56, 152, et seq.; State v. Daniels, 66 Mo. 192.

OPINION

In Banc.

Habeas Corpus.

Brace J.

By an act of the general assembly "approved April 26, 1889," a criminal court was established within and for the county of Greene. On the twenty-sixth day of August, 1891, the petitioner was tried and convicted of murder in the first degree, and afterwards on the second of September, 1891, was duly sentenced in said court to be hung, and committed to the custody of the respondent sheriff of said county for execution of the sentence. He now comes to this court by writ of habeas corpus, and asks to be discharged from such custody, on the ground that said court had no legal existence, the act creating it being unconstitutional and void.

The constitution provides that "the general assembly shall have no power to establish criminal courts except in counties having a population exceeding fifty thousand. Art. 6, sec. 31. By the first section of said act it is provided that "pursuant to sections 1 and 31 of article 6 of the constitution * * * a court of record is hereby established in the county of Greene, said county having a population exceeding fifty thousand inhabitants, and to be designated and called the criminal court of Greene county." Session Acts, 1889, p. 86.

It is not contended that the act was not passed in manner and form as required by the constitution, and, upon its face, it appears to be strictly within the power of the legislature, as limited by the constitutional provision quoted; but it is insisted as matter of fact that Greene county at the time the law passed did not have a population exceeding fifty thousand, and as evidence of that fact it is proposed to show that by the United States census of 1880, Greene county had only a population of twenty-eight thousand eight hundred and one, and by the United States census of 1890 had only a population of forty-eight thousand nine hundred and sixteen; that at the general election held in said county on the sixth day of November, 1888, there were cast only nine thousand seven hundred and thirty-six votes for presidential electors, and at the general election held in said county on the fourth day of November, 1890, only nine thousand one hundred and forty-five votes were cast for the candidates for the office of superintendent of public schools. Admitting this evidence for the sake of argument, it does not prove that Greene county did not have a population exceeding fifty thousand on the twenty-sixth day of April, 1889, the date of the approval of the act. Its whole force and effect is to raise a presumption that on that day said county did not have a population exceeding fifty thousand, and upon this presumption of fact we are asked to overthrow an act of the legislature passed in manner and form as required by the constitution. We cannot do it in this proceeding. The minds and consciences of those constituting the legislative department of the state when called upon to act on this law, under the solemn sanctions of their oath of office, were charged by the constitution with the duty of inquiring into and determining this question of fact. The only presumption we can indulge in regard to their action is that they did their duty, duly inquired into, and, upon evidence satisfactory to themselves, ascertained that Greene county had at the time the population required by the constitution. What that evidence was, we do not know, have no way of ascertaining, and are not at liberty to inquire.

The very nature of the constitutional duty they were called upon to perform required the determination of this question of fact before that duty was performed. We must assume that the legislative discretion was properly exercised; that the fact required to be found by the constitution, that Greene county had a population exceeding fifty thousand, was properly so found, as declared upon the face of the statute. Cooley on Constitutional Limitations [6 Ed.] p. 52, et seq., and p. 220, et seq.

It is not necessary to go to decisions in other jurisdictions for cases illustrating the correctness of this principle. In State v....