70 S.W. 891 (Mo. 1902), Gabbert v. Chicago, Rock Island & Pacific Railway Company

Citation:70 S.W. 891, 171 Mo. 84
Opinion Judge:GANTT, J.
Attorney:James W. Boyd for appellant. Brown & Dolman for respondent. Boyle, Priest & Lehmann and Walter H. Saunders, amici curiae.
Case Date:December 24, 1902
Court:Supreme Court of Missouri

Page 891

70 S.W. 891 (Mo. 1902)

171 Mo. 84

GABBERT, Administrator, Appellant,



Supreme Court of Missouri

December 24, 1902 [*]

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.


James W. Boyd for appellant.

(1) The only ground specified by the court, as required by section 801 of the statutes, not waived and withdrawn by the respondent, on which the motion for a new trial was granted, is the opinion of the court that the constitutional amendment providing that three-fourths of the jury concurring could render a verdict, is invalid. Hence, the only material question arising on this appeal is as to the validity of the said amendment. Candee v. Railroad, 130 Mo. 153; Millar v. Madison Car Co., 130 Mo. 523; Sanard Co. v. Transit Co., 122 Mo. 269; Baughman v. Fulton, 139 Mo. 559. (2) By the amendment only one section of the Constitution is amended. There is nothing contained in the subject-matter of the amendment not in that section. Section 28, article 2, Constitution. The subject-matter of the amendment is the jury. There are not only not two amendments included in one, but there is only one subject in the amendment and that is the jury. It is one amendment, so intended by the General Assembly, and absolutely so in fact. State ex rel. v. Timme, 54 Wis. 318, 11 N.W. 785; State ex rel. v. Herried, 72 N.W. 93; State ex rel. v. Mason, 9 So. 776, 43 La. Ann. 590. (3) But the "ground" specified by the circuit court is that there are two separate amendments submitted together in one ballot, not that there are two amendments included in what purported to be one amendment. There is no law against including any number of amendments in one ballot. (4) In passing on the question as to the oneness of the amendment, the oneness of an act of the Legislature under the article of the Constitution requiring that it shall contain but one subject and that shall be clearly expressed in the title, and the decisions on that subject, might well be considered. 9 So. 800. Section 28, article 4, of the Constitution provides that no bill shall contain more than one subject, which shall be clearly expressed in its title. It is held that it is complied with when all the criminal law and criminal procedure in this State, is enacted in one bill with the title "Crimes and Criminal Procedure." State v. Brasfield, 81 Mo. 162; State v. Dinisse, 109 Mo. 438; State ex rel. v. Bronson, 115 Mo. 271; Lynch v. Murphy, 159 Mo. 163; State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. Miller, 100 Mo. 439. (5) Courts will not declare constitutional amendments, ratified by the voters of the State upon due publication, invalid, unless their invalidity is plain, palpable and unquestionable. Edwards v. Lesueur, 132 Mo. 434.

Brown & Dolman for respondent.

(1) "When the inquiry is whether the Legislature, or any other body or officer has violated the regulations of the Constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government." State v. Rogers, 56 N. J. 619; State v. Powell, 77 Miss. 571; Botts v. Secretary of State, 63 N. J. L. 289; State v. Wurtz (N. J.), 45 L. R. A. 251; Green v. Weller, 32 Miss. 650; Sproule v. Frederick, 69 Miss. 898; State v. McBride, 4 Mo. 303; Edwards v. Lesueur, 132 Mo. 410; Collier v. Fruison, 24 Ala. 100; State v. Swift, 69 Ind. 505; Koehler v. Hill, 60 Iowa 543; State v. Young, 29 Minn. 574; Secombe v. Kittelson, 29 Minn. 555; Oakland Paving Co. v. Hilton, 69 Cal. 479; Livermore v. Wait, 102 Cal. 113. (2) The resolution proposing the petit jury amendments contains two separate and distinct amendments, and the fact that they were submitted to the voters on the same ballot is a violation of the provision of section 2, article 16, of the Constitution, requiring each amendment to be submitted separately, and renders the action void. State v. Powell, 77 Miss. 543; State v. Timme, 54 Wis. 318. The General Assembly, in proposing constitutional amendments does not act in its legislative capacity, but ministerially as the special agent of the people, so that the presumptions in favor of the validity of a legislative enactment do not apply. Livermore v. Waite, 102 Cal. 118; State v. Powell, supra; In re Senate File 31, 25 Neb. 873; Hatch v. Stoneman, 66 Cal. 872; Jamison on Con. Conventions, secs. 538, 547; Edwards v. Lesueur, 132 Mo. 433. (3) The first declaration in this section is that "the right to trial by jury as heretofore enjoyed shall remain inviolate." The second declaration is that a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law. These two declarations of the fundamental law have no connection whatever with each other, because the constitutional right of trial by jury in courts not of record has never existed in this State. Vaughn v. Scade, 30 Mo. 604; State v. Powell, 77 Miss. 572. (4) The seventh amendment was, together with the sixth amendment, defeated. Being inconsistent they defeated each other. In re Senate File 31, 25 Neb. 804; Vaughn v. Scade, 30 Mo. 603. This court has frequently decided that the last clause, requiring the amended section to be set forth in full as amended, is the important and controlling provision of this section, and that the setting forth separately of the words to be inserted is immaterial and unnecessary. Morrison v. Railroad, 96 Mo. 602; State v. Chambers, 70 Mo. 625; State v. Thurston, 92 Mo. 327.

Boyle, Priest & Lehmann and Walter H. Saunders, amici curiae.

(1) The printing of these two sections 28, because of the conflict which made it impossible to see the effect of either, prevented either from being published in a legal manner, and it is certain that the result of both, which is claimed to make a section different from either section as amended and printed, has never been published at all. The conflict is not in the amendments themselves, as they appeared on the ballot, but in the two sections 28 as amended, which were set forth in extenso in the respective resolutions. An analysis of the meaning of the vote shows that neither amendment was adopted. In any event, such analysis shows that it is impossible to determine whether either amendment was adopted, and, therefore, both must fail. Should it be held that both amendments were adopted (remembering that this means that both sections 28, as amended, were adopted) then, since the amended sections are in irreconcilable conflict, both amendments must fail. (2) The petit jury amendment, the seventh, attempted to submit two distinct propositions: First, the proportion of jurors requisite to return a verdict in courts not of record; second, in courts of record, in such a way that both propositions had to be voted on jointly. It therefore violated the constitutional mandate, article 15, section 2, which requires each proposed amendment to the Constitution to be so submitted that it may be voted on separately, and this double-barreled resolution must snap. State v. Powell, 27 So. 927, 34 Am. Law Rep. 615.


[171 Mo. 90] In Banc


-- This appeal has been before us on a question of revivor, the original plaintiff, Crawford, having died after his appeal had been taken to this court. [Crawford v. Railroad, 171 Mo. 68.]

The appeal on its merits is by the administrator from an order setting aside a verdict in favor of his intestate against the defendant. The action was for damages arising from personal injuries alleged to have been suffered by Crawford, while in the employment of the defendant, by reason of the negligence of defendant's servants in backing a train which Crawford was uncoupling, without giving him any signals of their intention so to do. He recovered a verdict for $ 2,000 and thereupon the defendant filed its motion for a new trial in which it assigned sixteen grounds, among others, the following:

"First. That the verdict of the jury is excessive.

"Fourth. That the verdict of the jury is against the weight of the evidence.

"Tenth. That the court erred in giving to the jury the instruction numbered three asked by plaintiff, for the reason that the same is contrary to and in violation of section 28 of article 2 of the Constitution of Missouri."

The 11th, 12th, 13th, 14th, 15th and 16th grounds may be summarized: Because the court erred in holding that the amendments to section 28, article 2, of the [171 Mo. 91] Constitution, had been lawfully submitted and adopted by the people of this State, whereby three-fourths of a jury in a civil action may render a verdict.

The record

Page 892

recites that the circuit court granted a new trial, and assigned the following reasons therefor on the record:

"First. Because the court is of the opinion that the constitutional amendment providing that three-fourths of the jury concurring may render a verdict, is unconstitutional.

"Second. Because the court is of the opinion that the verdict is against the weight of the evidence.

"Third. Because the court thinks the verdict is excessive as shown by the evidence.

"Fourth. Upon the ground that there are two separate amendments submitted together in the ballot as voted by the people."

Thereupon the parties to the suit agreed that the second and third causes shown of record for granting the motion for new trial are withdrawn, to-wit, because the verdict was against the weight of the evidence, and because the verdict was excessive.

I. This record presents the question whether the amendments, known as the sixth and seventh constitutional amendments submitted to the qualified voters of this State by the joint and concurrent resolutions of the...

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