State v. Pond

• Decision Date: 19 December 1887
• Citation: 6 S.W. 469,93 Mo. 606
• Parties: STATE ex rel. MAGGARD v. POND et al., Judges of County Court of Grundy Co.
• Court: Missouri Supreme Court

6 S.W. 469

93 Mo. 606

STATE ex rel. MAGGARD v. POND et al., Judges of County Court of Grundy Co.

Supreme Court of Missouri.

December 19, 1887.

1. INTOXICATING LIQUORS — LOCAL OPTION — CONSTITUTIONALITY — SPECIAL LAWS.

The local option act, (Acts Mo. 1887, p. 179,) which provides that any county or town or city having a population of 2,500 or more inhabitants may by a majority vote put such county, town, or city under its operation, applies to all the counties in the state, and to all incorporated cities or towns having a population of 2,500 or

more inhabitants, as a class, and does not violate Const. Mo. art. 4, § 53, which provides "that no local or special law shall be passed when a general law can be made applicable."¹

2. SAME — ADOPTION OF LAW BY VOTE — DELEGATION OF LEGISLATIVE POWER.

An act which provides that any county or town or city of a certain class may by a majority vote put such county, city, or town under its operation is not a delegation of legislative power.²

3. SAME — UNIFORM OPERATION OF LAW.

The fact that a law may be accepted in one county, and not in another, and in consequence of this a person might be punished in one county, and not in another, does not invalidate it.³

4. SAME — RIGHT TO REPEAL LAWS.

The legislature has the right to repeal a law, provided such repeal does not take away a vested right, or impair the obligation of a contract.

5. SAME.

The fact that a law passed repeals another cannot be made the test to try the validity of the subsequent law.

6. SAME — LAW CONTAINING UNCONSTITUTIONAL PROVISIONS.

A law may stand so far as it is constitutional, although it has in it certain provisions which are invalid.⁴

SHERWOOD, J., dissenting.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

Mandamus by William Maggard to compel W. M. Pond, Peter H. Yakey, and John W. Root, judges of the county court of Grundy county, appellants, to grant him a license to sell liquor.

F. S. Heffernan, Johnston & Craig, W. W. Ramsay, Stephen Peery, E. M. Harber, and J. H. Shanklin, for respondent. R. A. De Bolt, P. C. Steep, Geo. Hall, A. G. Knight, Luther Collier, O. M. Shanklin, and A. H. Burkeholder, for appellants.

NORTON, J.

It is admitted that, in pursuance of the provisions of the act of 1887. (Acts 1887, p. 179,) an election was held in Trenton, a town having more than 2,500 inhabitants, which resulted in a majority of votes being cast against the sale of intoxicating liquors. After this result was ascertained, the relator applied to the county court of Grundy county for license to keep a dram-shop in said town, having fully complied with the provisions of what is known in common parlance as the "Downing Dram-Shop Law." The county court refused to grant the license, on the ground that that the act of the legislature above quoted forbid the sale of intoxicating liquors in said town; a majority of the voters at an election held for that purpose having voted against such sale. The relator thereupon instituted this proceeding by mandamus to compel the county court to grant him license. The circuit court held the above act to be unconstitutional, and ordered a peremptory writ commanding the county court to grant the license; and this is the judgment from which the respondents have appealed to this court, and the only question which the appeal requires to be decided is whether the said act is valid or void.

No question of more delicacy or importance ever comes before a court of last resort than one which involves the constitutionality of an act passed in due form by the legislative department of the government. With the policy of the law, the wisdom, or want of it, in its enactment, we have no concern; that belongs to the domain of the legislature. Our business is to declare what is the law, and not to make law. When the constitutionality of a law is assailed, before we can assume to declare it void, and thus erase it from the statute-book, "its invalidity must be made plainly to appear." Stephens v. Bank, 43 Mo. 390. "When courts are called upon to pronounce upon the invalidity of an act of the legislature, passed with all the forms and ceremonies requisite to give it force, they approach the question with great caution, * * * and never declare a statute void unless, in their judgment, its nullity and invalidity are placed beyond a reasonable doubt. No rule of construction is better established, both on principle and authority, than that acts of the legislature are presumed to be constitutional until the contrary is clearly shown." State v. Railroad, 48 Mo. 470. "The solution of such a question ought not to be made by a resort to mere verbal criticisms, subtle distinctions, abstract reasoning, or nice differences in the meaning of words." State v. Able, 65 Mo. 362. In the case last cited the following is approvingly quoted: "That the legislature is peculiarly under the control of the popular will. It is liable to be changed at short intervals by elections. Its errors, therefore, can be quickly cured. The courts are more remote from the people. If we by following our doubts, in the absence of clear convictions, shall abridge the authority of the legislature, there is no remedy for six years. Thus, to whatever extent this court might err in denying the rightful authority of the legislature, we would chain that authority for a long period to our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government must slightly overstep the limits of its constitutional powers, it should be that one whose official life would soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient reason that the courts should never strike down a statute unless its conflict with the constitution is clear. The judiciary ought to accord to the legislature as much purity of purpose as it would claim for itself, as honest a desire to obey the constitution, and also a like capacity to judge of its meaning. Vide, also, State v. Laughlin, 75 Mo. 147; Phillips v. Railway Co., 86 Mo. 540; Kelly v. Meeks, 87 Mo. 401. The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases. "The party who wishes us to pronounce a law unconstitutional takes upon himself the burden of proving beyond a doubt that it is so." State v. Addington, 77 Mo. 110. The above authorities have been referred to to indicate the rules for our guidance in determining the validity of the law which this proceeding challenges.

The first ground of challenge is that the act in question is not a general, but a local or special, law, and is, in that respect, violative of article 4, § 53, Const., which, among other things, provides "that no local or special law shall be passed when a general law can be made applicable." We are not left at sea for a rule by which to determine what is a general, and what is a special or local, law. The distinction between them has been very clearly drawn by this court in the following cases: In the case of State v. Tolle, 71 Mo. 645, it is held "that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special." In case of Humes v. Railway Co., 82 Mo. 231, it is said to be a settled rule of construction that a legislative act which applies to and embraces all persons who are or may come into like situations and circumstances is not partial." Phillips v. Railway Co., 86 Mo. 540, is to the same effect. Vide, also, Ewing v. Hoblitzelle, 85 Mo. 64. Citations from the highest courts of other states to the same effect might be added, but reference to them is not deemed to be necessary, simply to fortify a rule adopted by this court so consonant with reason and common sense. Under the rule thus laid down, the contention of the relator that the act in question is a local or special, and not a general, law, is without foundation. The act in question applies to all the counties in the state as a class, and to all incorporated cities or towns, as a class, having a population of 2,500 or more inhabitants. All the counties of the state, and all cities and towns with the requisite population, may, by complying with its terms, come under its provisions. This direct question was passed upon by four of the judges of this court in Opinion of Judges, 55 Mo. 297, and a similar law relating to township organization was declared to be a general law; and the reason given for the conclusion was "that every county in the state might avail itself of the privileges offered by the law by a majority vote of its people." The fact that one or more counties, or one or more cities or towns, may by a majority vote put the law in operation in said county or counties, cities, and towns, and other counties, cities, and towns, may not do so, does not affect the rule, nor furnish a test by which to decide whether the law is local or general, and this court has never held otherwise.

The next ground upon which the validity of the act is assailed is that it is a delegation of legislative power to the people of the counties, cities, and towns of the state. While the rule that the legislature is alone invested with the power to make laws, and that it cannot delegate to the people the power to pass a law, does not admit of question or doubt, there is another rule just as firmly and indisputably established, which is that the legislature may pass a law to take effect or go into operation on the happening of a future event or contingency, and that such contingency may be a vote of the people. City & County of St. Louis v. Alexander, 23 Mo. 483; Cooley, Const. Lim. (3d Ed.) 117; State v. Wilcox, 45 Mo. 465; Towns...