City of Cape Girardeau v. Riley

• Decision Date: 31 March 1873
• Citation: 52 Mo. 424
• Parties: CITY OF CAPE GIRARDEAU, Appellant, v. PHILIP RILEY, et al., Respondents.
• Court: Missouri Supreme Court

52 Mo. 424

CITY OF CAPE GIRARDEAU, Appellant,

v.PHILIP RILEY, et al., Respondents.

Supreme Court of Missouri.

March Term, 1873.

Appeal from Cape Girardeau Court of Common Pleas.

Lewis Brown, for Appellant.

I. A bill having passed the General Assembly and re ceived the approval of the Governor, although entirely wanting an enacting clause, as set out in the Constitution, Article 4, § 26, is valid. (People vs. Supervisors, 8 N. Y., 323-330; Pacific R. R. vs. Governor, 23 Mo., 368, et seq.,People vs. Draper, 15 N. Y., 343-4.)

The Constitution says, (Art. 6, § 26,)“All writs and process shall run * * in the name of the State of Missouri.” * * This provision has been held merely directory, and this court, say “The constitution as well as the statute is merely directory and neither the one or the other expressly makes void a writ not in conformity to its provisions.” (Davis vs. Wood, 7 Mo. 165; Jump vs. Batton, 35 Mo., 196; Doan, et al. vs. Boley et al., 38 Mo., 450, and see Cooley's Const. Lim., p. 74, et seq.) A case directly in point, as to enacting clause is McPherson vs. Leonard, 29 Md., 377,--and see Swan vs. Buck, 40 Miss., 268; State vs. Delesdenier, 7 Texas, 76; Supervisors vs. Heeman, 2 Minn. 330; Washington vs. Paige, 4 Cal., 388.)

The Constitution itself contains all the inhibition that can exist against legislative action, and the courts cannot add to these inhibitions.

II. If the Legislature act within the scope of the powers conferred upon them, and were not prohibited by the Constitution, the courts cannot pronounce their act void, merely because, in their opinion, it is contrary to the principles of natural justice. (Calder vs. Bull, 3 Dallas, 399; Satterlee vs. Mattemore, 2 Peters, 380; Fletcher vs. Peck, 6 Cranch, 87.)

III. The General Assembly may rightfully, by a subsequent act, validate and confirm previous acts of a corporation otherwise invalid. (Cooley's Const. Lim., p. 371-379 and citations; Dillon Mun. Corp., § 42 note 1; p. 346 note 3.) When a statute does not, in express terms, annul a right or power given to a corporation by a former act, but only confers the same rights and powers under a new name, and with additional powers, such subsequent act does not annul the rights and powers given under the former act and under its former name, unless there is an express repeal of such former act.--(State vs. Mobile, 24 Ala., 701; Girard vs. Philadelphia, 7 Wall, 1; Commonwealth vs. Worcester, 3 Pick., 474; Trustees etc., vs. Erie, 31 Pa. St., 515-517; Fowler vs. Alexandria, 3 Pet. 398-408; St. Louis vs. Alexander, 23 Mo., 509.)

Louis Houck, for Respondent.

I. The Constitution of Mo. in 1863, as now, provided that the style of the laws shall be: “Be it enacted by the General Assembly of the State of Missouri as follows:”

This is a mandatory provision of the Constitution of the State. (State vs. Miller, 45 Mo., 498.)

In the case of McPherson vs. Leonard, 29 Md., 377; it seems that the Constitution of Maryland provided that the style of the Court should be. “Be it enacted by the General Assembly of Maryland;” yet that the Supreme Court held that law with no other enacting clause than “Be it enacted,” was valid and constitutional.

The cases of State vs. Delesdenier, 7 Texas 94, and Swan vs. Buck, 40 Miss., 293, are to the same effect.

In these cases it will be seen an enacting clause of some sort was found, although not strictly following the clause pointed out by the Constitution. But a wide difference exists between those cases and the case at bar, for in the case now under consideration no enacting clause whatever will be found.

It would seem that it is impossible that a statute creating this essential requisite of law should be void.

The cases of Supervisors vs. Heenan, 2 Minn., 330, and Washington vs. Paige, 4 Col., 388; have no application, and a different rule prevails in regard to the matters decided in those cases in this State. (State vs. Miller, 45 Mo., 498.)

The former acts in relation to the incorporation of the City of Cape Girardeau, as well as the subsequent acts cited, cannot be considered upon this demurrer. The petition refers to the Act of 1863 as incorporating the city. The plaintiff might doubtless have amended his petition by referring to some other act of incorporation, but he neglected and refused so to do by standing by his petition.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff's petition alleged an act of incorporation in vesting plaintiff with power to sue. A demurrer was inter posed and sustained, and the important question that arises in the case is the validity of the act of the Legislature incorporating the plaintiff as a city.

The objection taken is that there is no enacting clause the law, and it is contended that this omission renders it wholly invalid. The Constitution of this State (Art. 4, § 26,) declarer that the style of the laws of this State shall be: “Be it enacted by the General Assembly of the State of Missouri as follows:” and we are now to determine whether the provision is imperative or directory only. There is no doubt as to the regular passage of the act, its approval by the Governor, and its publication by the authority of the State.

In the early period of English history there was no fixed and certain style adopted in the passage of laws. It shifted and took different shapes in different reigns. But the most of the American States, when they entered upon a new order of things, adopted a style which they declared should be pursued.

The question is not one of construction, for the language of the Constitution is clear and explicit, but simply one of application. How is this particular provision to be applied, andwhat shall be the consequence of a disobedience of its directions?

If the provision is to be held as directory only, and not mandatory, the rule is that it may be disregarded without rendering the act void. The rule declared by Lord Mansfield in Rex vs. Loxdale (1 Burr, 447,) that, “there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory” has been followed by a long train of cases, and is now universally recognized. And where the language used does not import that it is of substance, the clauses of a law directing its observance are regarded as directory simply, for that is directory which is not of the essence of the thing to be done.

In the case of the Pacific Railroad vs. the Governor, (23 Mo., 353,) which was an application for a mandamus to the Governor, requiring him to issue the bonds of the State to a railroad company under a law alleged by him to have been passed by the Legislature over his veto, without the observance of the forms prescribed by the Constitution, this Court held that, notwithstanding the constitutional forms were...