Ex Parte Hutchens

• Decision Date: 06 December 1922
• Docket Number: No. 23836.,23836.
• Citation: 296 Mo. 331,246 S.W. 186
• Parties: Ex parte HUTCHENS.
• Court: Missouri Supreme Court

246 S.W. 186

296 Mo. 331

Ex parte HUTCHENS.

No. 23836.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Motion for Rehearing Overruled December 20, 1922.

Petition for habeas corpus by Frank Hutchens to secure his release from confinement in jail on a charge of having committed a crime. Writ quashed, and petitioner remanded to custody of sheriff.

D. E. Killam, of Trey, and Emil P. Rosenberger, of Montgomery City, for petitioner.

Derwood E. Williams, and Robert L. Sutton, both of Troy, for Sheriff Ed Mitchell.

WALKER, J.

The petitioner was charged by information in the circuit court of Lincoln county with a violation of section 3247, R. S. 1919, as amended, Laws 1921, p. 284a, in carnally knowing a girl of the age of 15 years. Petitioner seeks release on the ground that the statute as amended is in conflict with section 28, article 4., of the state Constitution, which provides that no bills save those in regard to appropriations and to certain unforeseen emergencies shall contain more than one subject which shall be clearly expressed in its title. The title of the bill is as follows:

"An act to amend sections 3247 and 3248 of the Revised Statutes of Missouri 1919, by striking out certain words and inserting certain words in lieu thereof, relating to age of consent of females."

1. We are concerned in the determination of the contention of the petitioner with the validity of the act of 1921 alone so far as it purports to amend section 3247. Under this act as amended is the petitioner charged, and only to the same will he be required to answer. If therefore the act is in other respects valid, the invalidity of the amendment to section 3248, embodied therein, is immaterial, provided its invalidity, which we do not admit and it is not necessary to be determined, is not so conjoined with or in other respects does not so affect section 3247 as to render it, as amended, inimical to the constitutional provision referred to.

While the amendatory act may be held to deal only with a single subject-matter, to wit, rape, the sections amended have reference to clearly separable facts relative to the age of consent, which, in a given case, are necessary to a commission of the offense. Under such circumstances, if it be conceded that section 3248, as amended, is invalid, it is clear that the invalid portion was not an inducement to the enactment of the amendment to section 3247, and that the latter, as amended, may be enforced after the elimination of all reference to the former. If this be true, section 3247, as amended, is not subject to valid criticism as in violation of the Constitution. This conclusion finds approval in the rule that the invalidity of one part or section of an act will not subject others therein to a like infirmity. State ex rel. Southern v. Bulger, 265 Mo. loc. cit. 290, 177 S. W. 640; State v. Railroad, 253 Mo. loc. cit. 656, 162 S. W. 144; Bosworth v, State University, 133 Ky. 436, 179 S. W. 403, L. R. A. 1917B, 808; 25 R. C. L. 840.

II. It is further contended that the statutory revision committee of 1919 did not comply with section 7082, R. S. 1919, defining the committee's powers, in that it inserted in the compilation of the Revised Statutes of 1919, § 4471, Laws 1919, p. 780, defining the punishment of rape, which was enacted at an extra session of the Legislature convened by the Governor subsequent to the creation of the revision committee, instead of incorporating the same section as it existed at the commencement of the regular or revising session as required by the terms of section 7082, supra.

The contention is that this action of the committee is null and void. What is meant by this we are unable to understand, unless the deduction is intended to be made therefrom that the failure of the committee to comply with the terms of the statute (section 7082) defining its powers will affect the validity of an act otherwise not subject to question; of, concretely stated, that the failure of the committee to incorporate in the revision of the statutes the section as it existed at the commencement of the revising session invalidates the amendment made in 1921, and hence said section is void in that it seeks to amend a law which did not exist. The fallacy al this contention may be demonstrated by reference to the statute (article 5, c. 57, R. S. 1919) creating and defining the power of the committee. This statute does not, and properly so under the limitations of the Constitution (section 1, art. 4, Con. Mo.), attempt to confer any legislative power upon the revision committee; but defines its purview as one of compilation or the arrangement of what may be deemed a more convenient form of the body of the law as enacted by the Legislature. The power thus conferred may be classified as clerical or purely mechanical. A compliance or noncompliance by the committee therefore with the terms of section 7082 cannot be held to affect the validity of a statute. This being true, we may construe that section to be directory. This classification is authorized where, as here, the observance of the limitation is not necessary to the validity of the act. Granite, etc., Pay. Co. v. McManus, 144 Mo. App. 593, 129 S. W. 448; People v. Graham, 237 Ill. 426, 108 N. E. 699, Ann. Cas. 1916C, 391. To construe the section otherwise would be to defeat the evident purpose of the Constitution and the Legislature in requiring stated revisions of the statutes, which is to render the law readily accessible or more nearly "an open book than a closed letter." There is no substantial right dependent upon a mandatory construction of said section. Not only can no injury arise from construing it to be directory under the facts at bar, but the purpose of the Legislature is more effectively accomplished thereby in the elimination from the revision of a section whose potency has been destroyed by amendment and the incorporation therein of section 3247, as amended (Laws 1921, p. 284a), which embodies the living letter of the law definitive of rape.

Supplemental to the...