Ex parte Loving

• Decision Date: 09 December 1903
• Citation: 77 S.W. 508,178 Mo. 194
• Parties: Ex Parte LOVING
• Court: Missouri Supreme Court

77 S.W. 508

178 Mo. 194

Ex Parte LOVING

Supreme Court of Missouri

December 9, 1903

Petitioner remanded to custody of sheriff.

Frank Gordon for petitioner.

(1) The Act of March 23, 1903, offends the organic law, in this: It is a "local law," enacted to partly repeal "a general law." "Nor shall the General Assembly indirectly enact such special or local law by the partial repeal of a general law." Art. 4, sec. 53, Constitution; State v. Buchardt, 145 Mo. 84; Cooley's Con Lim. (6 Ed.), 482; State v. Hill, 147 Mo. 63; State ex rel. v. Pond, 93 Mo. 636; Holden v James, 11 Mass. 369; Lewis v. Webb, 3 Me. 326; Wally's Heirs v. Kennedy, 2 Yerg. (Tenn.) 544 Woodard v. Brien, 14 Lea (Tenn.) 563; Hatcher v. State, 12 Lea 368. (2) It violates the following provisions of article 4, section 53, Constitution: "In all other cases where a general law can be made applicable no local or special law can be enacted, and whether a general law could have been applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject." State ex rel. v. Hermann, 75 Mo. 340; State ex rel. v. County Court, 89 Mo. 237; Rutherford v. Heddens, 82 Mo. 90; Dunne v. Railroad, 131 Mo. 5; State v. Anslinger, 71 S.W. 1041; State ex rel. v. Hammar, 42 N. J. L. 435; State v. DesMoines, 31 L. R. A. 186; Devine v. Commissioners, 84 Ill. 590; Kerrigan v. Force, 68 N.Y. 381; People v. Supervisors, 43 N.Y. 21; State ex inf. v. Borden, 164 Mo. 236; Topeka v. Gillett, 32 Kan. 431; State v. Mayor, 45 N. J. L. 247; Coutieri v. Mayor, 44 N. J. L. 58; Railroad v. Gregory, 15 Ill. 20; State v. Miller, 100 Mo. 448; Henderson v. Koenig, 168 Mo. 372. (3) Under the Constitution of Missouri it is not permissible to permit the same offense or violation of some public or general law by one species of punishment in one locality and by a different and more heavy punishment in other localities in this State. Art. 4, sec. 53, Const.; State v. Pond, 93 Mo. 636; Cooley's Const. Lim. (6 Ed.), 481; State v. Julow, 129 Mo. 176; State v. Walsh, 136 Mo. 406; State v. Thomas, 138 Mo. 100; State v. Buchardt, 144 Mo. 83; State v. Anslinger, 71 S.W. 1041. (4) The act is void for want of adequate provisions to cary out its conditions. State ex inf. v. Railroad, 145 Mo. 155.

John A. Sea also for petitioner.

(1) The act is in conflict with the organic law in this: It contains more than one subject. Sec. 28, art. 4, Constitution. It provides for two classes of persons; one as "neglected children," the other "delinquent children." The classes are entirely distinct; different methods are provided for each, both as to care and methods of procedure. (2) It is in conflict with, and offends the organic law of this State in this: It is both a local and a special law; either would condemn it. The General Assembly shall not pass any local or special law. Sec. 53, art. 4, Const.; Henderson v. Koenig, 168 Mo. 356; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. Jackson County, 89 Mo. 237; State v. Anslinger, supra. (a) This act applies only to Jackson county and the city of St. Louis as much so as if they had been specifically named. Jackson county is the only county in the State having the requisite population. The act emphasizes the local idea by declaring that St. Louis shall be deemed a county for purposes of act. (b) The act relates to present existing state of facts, speaking of counties "having a population of 150,000;" in section 21 it speaks of no adequate provisions "existing" in counties "having" such population, all in present tense and bringing act clearly within rule of State ex rel. v. Jackson County, 89 Mo. 237, and while there are words in the act looking to future action, these words refer to the action of the court as established, and not to new courts. State ex rel. v. Herrmann, supra; State ex rel. v. Jackson Co., supra. (c) It creates a local court with local jurisdiction in Jackson county and city of St. Louis. The local idea is further strengthened and made more manifest by section 4 of said act, which gives residents of such counties the right to file information as to neglected children, which right is denied residents of other counties, although such non-residents might have full knowledge of facts on which the court should pass. (d) It creates rights in Jackson county and St. Louis in certain cases not given in other parts of the State, i. e., trial by jury for violation of city ordinances and takes away rights, i. e., trial by jury in other cases in same places. (e) The act in section 5 says the proceedings shall be summary, and in section 19 it says in same proceeding court may inquire into ability of parent to support neglected child and enforce its judgment (for costs in one case, and support in the other) by execution, thus in Jackson county and city of St. Louis, disposing of property of the citizens in a summary manner, not authorized elsewhere in the State. It is within the rule of State ex inf. v. Washburn, 167 Mo. 689. (f) The act is both local and special in this: it punishes an offense in violation of a general State law, co-extensive with the territorial jurisdiction of the legislative body enacting it, by a different punishment and in a different manner in Jackson county and in the city of St. Louis than it does elsewhere in the State. State v. Anslinger, supra; State v. Buchardt, 144 Mo. 83. (g) It singles out from a class of children existing in all parts of the State, a part resident in these two places and subjects them to punishment and penalties different from that to which others of the same class, resident elsewhere in the State, are liable. It divides a natural class into two portions, making two classes out of one, and thus in effect enacts different rules for the government of each. State v. Thomas, 138 Mo. 101; State v. Washburn, 167 Mo. 689; State ex rel. v. Somer's Point, 52 N. J. L. 32, 6 L. R. A. 57; State ex rel. v. Wood, 49 N. J. L. 88, 7 A. 286; State v. Gritzner, 134 Mo. 529. (h) This is vicious legislation whether one county or six counties are within the terms of the act, the remaining portion of the State being excluded. State v. Walsh, 136 Mo. 400; State ex inf. Washburn, supra; State v. Gritzner, supra. (3) A law is local when, instead of relating to and being binding upon all persons, corporations or institutions to which it may be made applicable, within the entire territorial jurisdiction of the lawmaking power, it is limited in its operation to certain districts of such territory or to certain individual persons or corporations. Henderson v. Koenig, supra; State v. Anslinger, supra. It makes Jackson county liable for costs which are taxed in a case, although the matter may be purely one arising from the violation of a city ordinance, using county funds for city purposes, and placing on county burden of a civil matter. Conlin v. Board, 114 Cal. 404; Morrison v. Bachert, 112 Pa. 322. (4) A general law being applicable, the power to pass a local or special act is absent. State v. Anslinger, 71 S.W. 1044; Henderson v. Koenig, 168 Mo. 377; State v. Hill, 147 Mo.; State v. Granneman, 132 Mo. 331. (5) It is nugatory and void for want of adequate provisions in the law to carry out its execution. State ex inf. v. Railroad, 145 Mo. 155.

Roland Hughes, Gardiner Lathrop, James. P. Gilmore, J. V. C. Karnes, Alfred Gregory, Seddon & Blair and J. Henry Altschu for respondent.

(1) The act is not in violation of section 53, article 4, of the Constitution of the State of Missouri. Ex Parte Lucas, 160 Mo. 218; Kansas City v. Stegmiller, 151 Mo. 189; State ex rel v. Marion County Court, 128 Mo. 427; State ex rel. v. Wofford, 121 Mo. 61; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Tolle, 71 Mo. 645; Lynch v. Murphy, 119 Mo. 163; Rutherford v. Hamilton, 97 Mo. 543; Rutherford v. Heddins, 82 Mo. 388; sec. 16, art. 9, Constitution. (2) The act is not in violation of sections 1 and 10, article 10, of the Constitution. State ex rel. v. Owsley, 122 Mo. 68; Young v. Kansas City, 152 Mo. 661; State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Board, 141 Mo. 45; State ex rel. v. Field, 119 Mo. 593; State ex rel. v. Pike County, 144 Mo. 275; State ex rel. v. Holladay, 70 Mo. 137; State ex rel. v. County Court, 34 Mo. 546. (3) It is the duty of the court to uphold this act unless it plainly and clearly violates the Constitution. State ex rel. v. Aloe, 152 Mo. 477; State v. Thompson, 144 Mo. 322; State ex rel. v. Pike County, 144 Mo. 277; Kelly v. Meeks, 87 Mo. 396; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Able, 65 Mo. 357.

OPINION

In Banc

Habeas Corpus.

FOX, J.

The facts in the case at bar are practically admitted. The petitioner, James Loving, was arrested and charged with petit larceny, committed in Jackson county. The petitioner is a boy eight years of age, and was brought before the juvenile court of Jackson county. The case was heard by the judge of the juvenile court, who, having heard the facts, found the defendant guilty, and thereupon the following judgment was made and entered of record in the records of said county:

"The State of Missouri v. James Loving.

"Now on this day comes the prosecuting attorney of Jackson county, Missouri, and files information charging said James Loving with petit larceny, upon which information a warrant was issued and said defendant was brought into court, and Frank Gordon, Esq., appears in court as attorney for said defendant, and in his behalf pleads not guilty.

"And the court, after hearing all of the evidence adduced, and being fully advised in the premises, finds that the defendant is guilty of a misdemeanor, that he is a delinquent child and that he is eight years of age. The court further finds that the parents...