Ewing v. Hoblitzelle

Decision Date31 October 1884
PartiesEWING, Mayor, v. HOBLITZELLE, Recorder, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

REVERSED.

Glover & Shepley and G. H. Shields for appellants.

(1) Every question of doubt should be resolved in favor of the validity of the statute (51 Mo. 82), because the power of the legislature is absolute, except when restrained by the federal or state constitution. 34 Barb. 138; Cooley's Const. Lim. 173. (2) The state legislature has power over all subjects on which its legislation is not prohibited. 15 N. Y. 303; 27 Barb. 593; 4 Mich. 244; 5 Mich. 257; 24 N. Y. 497, 504; 2 Park, Cr. R. 490; 15 La. Ann. 190; 18 Ind. 258; 17 Cal. 547; 17 Pa. St. 119; 19 Pa. St. 260; 52 Pa. St. 477; Cooley's Const. Lim., 1868, 173, 174. (3) Should the legislature attempt to grant a municipal corporation powers irrevocable by itself, they would be, notwithstanding, under the control of the legislative power. 10 How. 511; 3 Bland (Md. Ch.) 407; 13 Wend. 331; 9 Mo. 507; 29 Vt. 12; 13 Ill. 30; 2 Allen 27; 1 La. Ann. 162; 5 La. Ann. 665. No sovereign state ever sat up an independent prinicipality, an imperium in imperio, such as Mr. Bell contends St. Louis to be, within its borders. (4) We must look to the constitution and that alone, to find provisions which emancipate St. Louis and its charter from the control of the legislature. Brown v. Fifield, 4 Mich. 322. The state did not, in the constitution, resign its functions over the territory of the city of St. Louis. Const., art. 9, secs. 20 and 23; art. 4, sec. 53; art. 9, secs. 7 and 22; Town of Marietta v. Fearing, 4 Ohio 427. (5) The registration of voters, the conduct of elections, including the appointment of judges of elections, and the canvass and returns thereof, are not incongruous subjects, but are germane to each other, are properly included in one act, and are clearly expressed in the title of the act in question. State v. Ranson, 73 Mo. 78; see, also, Frost v. Wilson, 70 Mo. 664; State v. Matthews, 44 Mo. 523; State v. Bank ofthe State of Mo., 45 Mo. 528; City of St. Louis v. Tiffel, 42 Mo. 578; State v. Shepherd, 74 Mo. 310; State v. Chambers, 70 Mo. 625. The act of the general assembly involved in this suit is not a special or local law. State v. Toole, 71 Mo. 665; State ex rel. Monohan v. Walton, 69 Mo. 556; State ex rel. Berry v. Shields, 4 Mo. App. 259.

Leverett Bell for respondent.

(1) Injunction is the proper remedy in this case. Bradley v. Commissioners, 2 Humph. 428; Kerr v. Trego,47 Pa. St. 292. (2) The act of March 31, 1883, (Laws of 1883, p. 38), contravenes section 28, article 4, of the constitution, which provides that no bill, except a general appropriation bill, shall contain more than one subject, which shall be clearly expressed in its title. It embraces two distinct subjects. It provides for the registration of voters, by sections one to seventeen inclusive; and the remaining sections of the act relate to the manner of conducting elections in St. Louis. The subjects are separate and independent. State v. Persinger, 76 Mo. 346; Cooley's Const. Lim. (5 Ed.) 178; People v. Parks, 58 Cal. 624; Huber v. People, 49 N. Y. 132; Murphy v. State, 73 Tenn. 373; State v. Barrett, 27 Kan. 213; San Antonio v. Gould, 34 Texas 49; Stewart v. Father Matthew Society, 41 Mich. 67; In re Paul, 94 N. Y. 497. (3) It is repugnant to section fifty-three, of article four of the constitution, which provides that the general assembly shall not pass any local or special law regulating the affairs of cities, changing the charters of cities, providing the manner of conducting elections, or fixing or changing the places of voting, creating offices or prescribing the powers and duties of officers in cities. State, etc., v. Hermann, 75 Mo. 340; Devine v. Cook County, 84 Ill. 590. It cannot, so far as it attempts to authorize the recorder of voters to appoint the judges and clerks of election, be supported under section five, of article eight, of the state constitution, because the above feature is independent of and is not lawfully incorporated in an act to provide for the registration of voters. The registration of voters is one thing, and the method of conducting an election and canvassing the returns is another, and distinct and separate subject matter. (4) It violates sections 20, 21, 22, 23, 24, and 25, of article 9, of the state constitution, which confer on the people of St. Louis the right of self-government in matters of local concern, and it is in effect an amendment to the charter of St. Louis, not authorized by said sections of the constitution. The present charter of St. Louis was adopted by the vote of the people of the city on August 22, 1876, and it went into effect at the end of sixty days thereafter. It has been before the court in a number of cases, and its provisions have always been upheld. State v. Powers, 68 Mo. 320; St. Louis v. Sternberg, 69 Mo. 289; State v. Walsh, 69 Mo. 409; St. Louis v. Green, 70 Mo. 563; State v. Mayor, 73 Mo. 435; St. Louis v. Knox, 74 Mo. 79; Ex parte Hollwedell, 75 Mo. 395; St. Louis v. Richeson, 76 Mo. 470; St. Louis v. Bircher, 76 Mo. 431; Eyerman v. Blakesley, 78 Mo. 145; Farrar v. St. Louis, 80 Mo. 379; State, etc., v. Smith, 81 Mo. 51. (4) The purpose of section 25, article 9, of the constitution which reserves to the state general assembly “the same power over the city and county of St. Louis that it has over other cities and counties of the state,” was to reserve to the state the right to legislate as to matters in St. Louis of state concern. The question, who shall appoint judges and clerks of election at a special election in the city of St. Louis, held pursuant to its charter and ordinances for the purpose of filling a local city office, is one in which the state has no interest, and as to which it is forbidden to legislate, and the charter having vested the power of appointment in the mayor, the state legislature has no power to transfer it to the recorder of voters. (5) Under the system of government prevailing in Missouri, the powers and duties designated in the act of 1883, to be exercised by the recorder, are required to be distributed, and cannot lawfully be exercised by the same person. (6) Under the law of the land, the legislature has no power to order and direct the disbursement of money raised by taxation in the city of St. Louis for local municipal purposes, in the manner and for the objects set forth in the said act of March 31, 1883. Cooley on Const. Lim. (5 Ed.) 285. The question of the salary and compensation to be paid out of the city treasury to the recorder of voters, and the deputies and clerks employed in his office, is one of exclusively local concern which the state has no right to interfere with and control by compulsory legislation. People v. Common Council, 28 Mich. 228; People v. Mayor, 51 Ill. 17. The city of St. Louis by its charter is authorized to establish and fix the salaries and compensation of all officers, deputies and clerks employed by the city in any of its offices or departments. Part 8, sec. 26, art. 3, 2 R. S. 1587; Sec. 17, art. 16, 2 R. S. 1629. The act of March 31, 1883 (Laws of 1883, 38), contravenes section 28, of article 4, of the state constitution, which provides that no bill, except a general appropriation bill, shall contain more than one subject, which shall be elearly expressed in its title. The act embraces two distinct, separate and independent subjects. It provides for the registration of voters, by sections one to seventeen inclusive and by section twenty-five; and sections 18, 19, 20, 21, 22, 23, 24, 26, and 27, of the act relate to the manner of conducting elections in St. Louis. The subjects are distinct, separate and independent. State v. Persinger, 76 Mo. 346; Cooley's Const. Lim. (5 Ed.) 178; People v. Parks, 58 Cal. 624; Huber v. People, 49 N. Y. 132; Murphy v. State, 73 Tenn. (9 Lea) 373; State v. Barret, 27 Kan. 213; San Antonio v. Gould, 34 Tex. 49; Stewart v. Father Matthew Society, 41 Mich. 67; In re Paul, 94 N. Y. 497.

NORTON, J.

This is a proceeding by injunction, instituted in the circuit court of the city of St. Louis, to enjoin and restrain defendant from appointing four judges and two clerks to serve at each election precinct in the city of St. Louis, at a certain election to be held in said city. A demurrer was interposed to the petition by defendant, which was sustained by the circuit court and the bill dismissed. On appeal to the St. Louis court of appeals said judgment was reversed, and the right of plaintiff to the relief prayed for asserted, from which judgment defendant has appealed to this court.

It is substantially averred in plaintiff's petition that he was the mayor of the city of St. Louis, and that by virtue of section 15, article 2, of the charter of said city the duty is imposed upon him of appointing, at least ten days before every election held in said city, four competent persons to act as judges, and two persons to act as clerks at each election precinct in said city. It is further averred that an election was soon thereafter to take place in said city for the office of president of the board of assessors and that plaintiff was engaged in selecting and appointing the judges and clerks of said election. It is then averred that defendant, who is recorder of voters in said city, under an appointment from the governor of the state, threatened to appoint judges and clerks for said election, whereby great confusion and injury to the public would result. It is then averred that the act of the general assembly, approved March 31, 1883, under which defendant claims the right to exercise such power of appointment, is unconstitutional and void.

It will be seen from this statement that the question decisive of the case presented by the record, is this: Is the said act of 1883 constitutional? An affirmative answer to this interrogatory reverses, and a negative answer affirms the judgment of ...

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1 books & journal articles
  • Tipping point: Missouri single subject provision.
    • United States
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    ...State v. Morgan, 20 S.W. 456 (Mo. 1892) (en banc); State ex rel. Attorney Gen. v. Miller, 13 S.W. 677 (Mo. 1890); Ewing v. Hoblitzelle, 85 Mo. 64 (38.) See Fig. 1. (39.) Id. (40.) See Hammerschmidt v. Boone County, 877 S.W.2d 98 (Mo. 1994) (en banc); Missourians to Protect the Initiative Pr......

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