The State v. Etchman
| Citation | 88 S.W. 643,189 Mo. 648 |
| Parties | THE STATE v. ETCHMAN, Plaintiff in Error |
| Decision Date | 20 June 1905 |
| Court | United States State Supreme Court of Missouri |
Error to Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.
Affirmed.
Charles C. Crow for plaintiff in error.
The law is by its own terms local and therefore void. State v Anslinger, 171 Mo. 600; Chance v. Marion County, 64 Ill. 66; Ex parte Loving, 178 Mo. 194; Green v. Weller, 32 Miss. 652; Dyer v Baynie, 54 Md. 87; U. S. v. Morris, 1 Curtis (U.S.) 50; Henderson v. Koenig, 168 Mo. 356; Ashbrook v. Schwab, 160 Mo. 109; State v Hill, 147 Mo. 63; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Mason, 155 Mo. 486; Owen v. Baer, 154 Mo. 434; Bank v. Graham, 147 Mo. 257; People v. Wright, 6 Col. 92; Parker v. Savage, 6 Lea (Tenn.) 406; Walcot v. Wigton, 7 Ind. 44; Eason v. State, 11 Ark. 481; Wilcox v. People, 90 Ill. 186; State v. Granneman, 132 Mo. 326.
Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
(1) "Legislation which is necessary or appropriate to carry into effect a command of the Constitution or a direct grant of power, or which results directly or indirectly from a specific constitutional requirement, is neither local nor special." State v. Shields, 4 Mo.App. 259; Ewing v. Hoblitzelle, 85 Mo. 65; State ex rel. v. Yancy, 123 Mo. 391; Kenefick v. St. Louis, 127 Mo. 1; Spaulding v. Brady, 128 Mo. 653; State ex rel. v. Mason, 153 Mo. 53. (2) Whenever a power is granted, every thing necessary to make it effectual or requisite to attain the end is implied. The act is not unconstitutional because it imposes duties on the sheriff, and the clerk of the court, and incidental expenses on the county, not common to all sheriffs, clerks and counties throughout the State. Ex parte Kiburg, 10 Mo.App. 442; State ex rel. v. Shields, 4 Mo.App. 259; Ex parte Marmaduke, 91 Mo. 262; State ex rel. v. Mason, 155 Mo. 498; Broom's Legal Maxims (8 Am. Ed.), pp. 479, 486; Sutherland, Stat. Const. (2 Ed.), sec. 508. (3) In case of doubt as to the constitutionality of an act, every possible presumption, not directly inconsistent with the language and subject, will be made in favor of its validity. Ewing v. Hoblitzelle, 85 Mo. 64; Phillips v. Railroad, 86 Mo. 540; State ex rel. v. Yancey, 123 Mo. 391; State v. Thompson, 144 Mo. 314; State ex rel. v. Aloe, 152 Mo. 466; State v. Hamey, 168 Mo. 167; Cooley, Constitutional Limitations (7 Ed.), pp. 237, 255. An act of the Legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt. State v. Layton, 160 Mo. 499. Every reasonable intendment should be made to sustain it. State v. Hope, 100 Mo. 347; State ex rel. v. Jackson County, 102 Mo. 531; State ex rel. v. Simmons Hardware Co., 109 Mo. 118. That an act has been assumed to be valid by two decisions of one of the courts of appeals and one of the Supreme Court, and has been acquiesced in for years by the people and all departments of government, is sufficient to create a reasonable presumption in favor of its constitutionality, and, therefore, to uphold its validity. State ex rel. v. Laughlin, 75 Mo. 147; Railroad v. County Court, 53 Mo. 158; State ex rel. v. Pond, 93 Mo. 606; State ex rel. v. Railroad, 92 Mo. 137; Edwards v. Lesuer, 132 Mo. 410; Kelly v. Weeks, 87 Mo. 396. No act should be declared unconstitutional if it be fairly open to a construction which will harmonize it with the organic law. Kenefick v. St. Louis, 127 Mo. 1.
On the 4th of April, 1903, the grand jury of Buchanan county, Missouri, returned an indictment against the plaintiff in error, charging him with setting up, in said county, on March 31, 1903, certain gambling tables and devices, two of which were a chuck-a-luck table and a crap table.
On arraignment, on April 6, 1903, a plea of not guilty was entered, which was withdrawn on June 27th, and a plea of guilty entered in its stead. Thereupon, the court assessed the punishment at six months in the county jail. A motion in arrest of judgment was filed, but the record is silent as to any disposition of said motion.
On August 12, 1904, a writ of error was sued out in this court and the clerk of the lower court, in obedience thereto, has forwarded a certified copy of the record proper in said cause, which is now before the court for consideration.
OPINION.The same questions, with the exception noted, involved in this case were decided by this court in State v. Rosenblatt, 185 Mo. 114, 83 S.W. 975, and State v. Etchman, 184 Mo. 193, 83 S.W. 978, except the one proposition now presented in this case as to the constitutionality of the act creating the criminal court of Buchanan county. The act creating the criminal court of Buchanan county will be found in Revised Statutes 1899, section 1, page 2568. It provides: "Pursuant to sections one and thirty-one of article 6 of the Constitution, and to a notice" (set out in full) "a court of record is hereby established in the county of Buchanan, said county having a population exceeding 50,000 inhabitants, and to be designated and called the criminal court of Buchanan county."
There is but one proposition presented in the record in this cause, and that is embraced in the contention of plaintiff in error that the act as herein noted establishing the Buchanan County Criminal Court is void and unconstitutional. The grounds upon which this contention is predicated may be briefly stated as follows:
1. Because it is in conflict with subdivision 2 of section 53, article 4 of the Constitution, which provides: "The General Assembly shall not pass any local or special law . . . regulating the affairs of counties, cities, townships, wards or school districts."
2. Because it is in conflict with subdivision 15, section 53, article 4, providing that no local or special law shall be passed, "creating offices, or prescribing the powers and duties of officers in counties, townships, election or school districts."
3. Because it is in conflict with subdivision 17, section 53, article 4 of the Constitution, providing that no local or special law shall be passed "regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing method for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate."
4. Because it is in conflict with subdivision 32, section 53, article 4 of the Constitution, which prohibits the passage of any local or special law, "where a general law can be made applicable; and whether a general law could have been made applicable in any case is hereby declared a judicial question."
Learned counsel for plaintiff in error has presented the question involved in this controversy in its strongest light, and it is not out of place to say that about all has been said in his oral argument and brief now before us that can be said upon this proposition; yet, after a careful consideration of all the authorities, we are unable to give our assent to the contention so ably presented by counsel.
The origin of the power in the legislative branch of the government of this State to create and establish criminal courts is found in section 1, article 6 of the Constitution, which provides: "The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in the Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts." Following this provision of the Constitution we find that section 31 article 6 of the Constitution places a limitation upon the power of the General Assembly to establish and create criminal courts. It provides: "The General Assembly shall have no power to establish criminal courts, except in counties having a population exceeding fifty thousand."
It is apparent that while section 31, article 5, as above noted, limits the power of the General Assembly in respect to the establishment of criminal courts, yet it is equally clear that it fully recognizes the power of the General Assembly to establish such courts in counties having the required population. We have, then, as applicable to the proposition now under consideration, first, a constitutional provision vesting the judicial power of the State in certain designated courts, among them, criminal courts; secondly, by a provision in the same Constitution we have a full and express recognition of the power of the General Assembly to establish criminal courts in counties having a population exceeding 50,000.
The act of the General Assembly establishing the Buchanan County Criminal Court was enacted in pursuance of the constitutional provisions above referred to, and the fair and reasonable interpretation of such provision as applicable to the grant of power to the General Assembly to pass the act creating such court must furnish the solution of the proposition now confronting us.
This leads us to inquire as to what rule of construction should be adopted in the interpretation of the constitutional provisions involved in this proceeding. After diligent search we are unable to find any rule which is more practical than the one announced by that eminent jurist and author, Mr. Story, in his work upon the Constitution. He thus states it:
...
To continue reading
Request your trial