State ex rel. Harris v. Herrmann

Decision Date30 April 1882
PartiesTHE STATE ex rel. HARRIS v. HERRMANN, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

REVERSED.

This was a proceeding by way of information in the nature of a quo warranto, filed by the State through the circuit attorney, at the March term, 1881, of the St. Louis court of appeals. The information charged that the defendant had usurped the office of notary public within and for the city of St. Louis, and prayed judgment of ouster. In his answer the defendant set up that on the 22nd day of August, 1878, being legally qualified, he was duly appointed and commissioned by the Governor of this State to said office for a term of four years from said date, which date had not yet expired. To this answer the relator demurred, on the ground that the same did not state facts sufficient to show a valid cause why the said defendant exercised said office of notary public, in view of the act of the general assembly of the State of Missouri, approved March 24th, 1881, entitled “An act to regulate the appointment of notaries public in all cities having a population of 100,000 inhabitants, or more, and to vacate the offices of all notaries,” etc. The demurrer was sustained, and judgment of ouster rendered against the defendant, who thereupon appealed to this court. The case was argued by counsel in this court, and the judgment of the court of appeals was affirmed; but upon motion of the appellant the court ordered a re-argument upon the single point stated in the opinion.

Marshall & Barclay for appellant.

Law being made theoretically, “not for a day, but for all time,” a statute applicable to cities of certain population is a general law when it establishes a rule for the prospective government or regulation of all such cities as may, in the course of time, reach the prescribed population; but where the statute obviously acts only on a present state of facts in “such cities” and cannot by possibility apply to other cities that may attain, in future, such population, it is local, special and void. Comm. v. Patton, 88 Pa. St. 260; Scowden's Appeal, (Pa. S. C. Dec., 1881,) 7 South. L. Rev. 921; State ex rel. v. Hammer, 42 N. J. L. 439; Devine v. Cook, 84 Ill. 590: Earle v. Board, 55 Cal. 489; McGill v. State, 34 Ohio St. 228; Klokke v. Dodge, 14 Chic. Leg. News 147; McConihe v. State, 17 Fla. 238; State v. Mitchell, 31 Ohio St. 592; Robinson v. Perry, 17 Kas. 248; Pittsburgh Assessor's case, 2 Cent. L. J. 306; Fields v. Commissioners, 36 Ohio St. 480. Again, the constitution of Missouri contemplates and permits a classification by population to meet an existing state of facts for certain purposes, namely, to provide for and regulate fees of local officers, and to incorporate cities and towns. Const. 1875, art. 9, §§ 12, 17. Upon the principle, expressio unius est exclusio alterius, this permission implies a prohibition for all other purposes. Klokke v. Dodge, supra; Worcester Bank v. Cheney, 94 Ill. 430; City v. Laughlin, 49 Mo. 559; Maguire v. Bank, 62 Mo. 346. A statute, such as this section 4, which selects particular individuals, (namely, notaries whose commissions are dated prior to a date named in the act,) from a general class, (namely, all notaries in said jurisdiction,) and subjects them to peculiar rules from which the others in the same class are exempt, is a special law and void. Cooley Const. Lim., p. *391; State v. Tolle, 71 Mo. 645; Ex parte Westerfield, 55 Cal. 550; Smythe v. Monticello, 12 Chic. Leg. News 12; State v. Riordan, 24 Wis. 484. Furthermore, it selects one class of the old notaries and vacates their commissions, while it gives other old notaries their full term of office. That is, those appointed under the old law, between March 24th, 1881, and June 26th, 1881, the date when the new law took effect, may hold their offices unmolested; but those appointed prior to March 24th, 1881, under the same old law, must vacate their offices. It thus makes one rule for one officer and a different rule for another officer of the same general class, qualified under the same law. This is obviously special legislation, forbidden by the constitution. Nevada v. Mining Co., 15 Nev. 234; Ex parte Westerfield, 55 Cal. 550; s. c., 36 Am. Rep. 47; Montgomery v. Com., 91 Pa. St. 125.

C. P. Ellerbe for respondent.

The principle announced in State v. Tolle, 71 Mo. 650, viz., 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, and that classification does not depend on numbers,” is decisive of this case.

Section 4 operates on all subjects of a particular class, viz: on the offices of all notaries, in the cities included in the classification, whose commissions bear date prior to the passage of the act, and whose terms should not have expired at the time of its taking effect. The idea of the appellant seems to be that at the time when the statute should go into effect there would be but one city in the State large enough to embrace the subjects in the classification. But such idea is founded upon a repudiation of the doctrine of classification asserted by this court. This court will not, except upon the clearest grounds and in manifest cases, overturn legislation as unconstitutional. Every intendment is to be made in favor of the validity of an act, and no presumptions are to be indulged against its validity. Therefore, instead of presuming that, at the date at which the act in question would take effect, there would be no city in the State other than the city of St. Louis, within the terms of the classification, that is, no other city having 100,000 inhabitants, the presumption, if any, would be the reverse. State v. Tolle, 71 Mo. 650; Wheeler v. Philadelphia, 77 Pa. St. 338; Kilgore v. Magee, 85 Pa. St. 411. But the question does not come to this, for the classification of cities, by population, being general, and not special, as we have seen, and, therefore, valid, although there may be but one city in the class, ( Kilgore v. Magee, supra,) it follows that all legislation touching the subjects of legislation within any class, though it contain but one city, is general legislation, not special, though applying to the like subject nowhere else.

Now, the subjects of legislation under the operation of section 4, are a certain class of offices, viz: Offices of all notaries of cities having 100,000 inhabitants, whose commissions ante-date the passage of the act, and whose terms of office did not expire until after the act went into operation. Here is a classification of the subjects of the act, and the act applies to those subjects all over the State alike, wherever they are to be found. The section is, therefore, general and not special. It comprehends the whole of a proper class.

The cities are classified under the act by population, the subjects for the operation of the act by the dates of commissions and the terms of office. The only question remaining is, whether the latter classification is by arbitrary terms or by terms related to the objects and purposes of the statute. If the former, that is, if the facts upon which the classification is made to depend are arbitrary and taken merely for the purpose of evading the inhibition of the constitution, and not essential to the objects of the law, then we concede the classification would be void--but the contrary if essential to the objects of the law. Wheeler v. Philadelphia, supra; Kilgore v. Magee, supra; State v. Parsons, 40 N. J. L. 1, 8; 42 N. J. L. 649; McConihe v. State, 17 Fla. 238.

The object of the act was, for purposes of public utility, to concentrate into the hands of a sufficiently small number of officers the notarial business of populous cities to make the business so far compensating as to secure for this service efficient, able and reliable officers, it being notorious that the compensation, before the act, arising out of the great division of the business because of the great numbers of notaries, was not sufficient to secure for that service such officers as the public interests demand. This was the mischief to be overcome by the law, and we think it cannot be disputed that the abolition and vacation of the offices then existing under commissions running until after the act went into effect, were directly related to the objects and purposes of the act, and were essential to those purposes and objects. Such being the case, the classification made by the 4th section, by the dates of commissions in reference to the date of the passage of the act, and the date of the expiration of the terms of office under such commissions, in relation to the time the act went into effect, was not arbitrary, and constituted a lawful classification, and hence the 4th section is not within the inhibitory clause of the constitution--is not a special or local law.

A. Hamilton also for respondent.

There are no words in this 4th section which limit the application of the law to one (or two) cities only, which now exist, and, therefore, preclude its application to any other city, now or hereafter, which may have that population. It is certainly true that the act can now, in fact, operate only on the city of St. Louis, and can never operate to abolish offices and commissions in any future city, and for the plain reason that there would be none to be abolished, the laws creating them having been repealed; that is, there would be no subjects or persons in existence falling within the scope of the act. But it by no means follows that the law would not be applicable to all subjects and persons within its provisions, if such subjects or persons existed. The act itself contains no terms of limitation on its applicability to all cities within the State which belong to the class designated. And the case simply is, that the section operates on such subjects as fall within the scope of its provisions, and does not operate on any ...

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