French v. Woodward

• Decision Date: 31 October 1874
• Parties: J. C. FRENCH, Plaintiff in Error, v. W. H. WOODWARD, et al., Defendants in Error.
• Court: Missouri Supreme Court

58 Mo. 66

J. C. FRENCH, Plaintiff in Error,

v.W. H. WOODWARD, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Audrain Circuit Court.

Ira Hall, for Plaintiff in Error.

McIntyre & Keenan, for Defendants in Error.SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff, French, brought his action in the Audrain Circuit Court, against the defendants, Woodward and Barada, charging them with taking and converting to their own use certain personal property of his. They, in addition to other matter set up in their answer, justified under an execution placed in the hands of Barada, one of the defendants. as deputy constable. It was developed in the pleadings, and also in the evidence adduced at the trial, that Barada, at the time of the levy of the writ, was city marshal of the city of Mexico, and held an appointment also, as the deputy of Roseberry, the constable of Salt River township, in which the levy on and seizure of plaintiff's property under the writ referred to, took place; and the point was distinctly made by the plaintiff in his reply to the defendant's answer, and in objections to the introduction of testimony showing the appointment of Baraba as a deputy under Roseberry, and in an instruction to that effect, which was refused, that the appointment of Barada, under the circumstances, was in violation of the charter of the city of Mexico, and therefore illegal.

The act incorporating that city was approved February 17, 1857, § 3 of Art. VII, of that act among other things providing that the marshal of that city should “hold no other State, county, or city office, nor act as deputy of such other officers during the term for which he shall hold the office of marshal.” The act just referred to was amended by an act approved March 18, 1871. Section 2 of that act is somewhat amendatory of § 3, Art. VII, of the act first mentioned, but not, in any particular, worthy of present notice.

Afterwards, the legislature by an act, approved March 27, 1872, entitled, “An act to amend an act entitled ‘an act to incorporate the city of Mexico’ approved February 17th, 1857, and an act amendatory thereof, approved March 25th, 1871,” effected many changes in the law in relation to that city. But the only section of that act having any bearing on the point in hand, is section four in these words: “That § 3 of Art. VII, of the last named act ( i. e. that of March 1871,) be, and the same is hereby amended so as to authorize the city marshal to act as deputy constable in Salt River township, Audrain County, Missouri, in addition to his present duties.”

It will need but a very cursory examination in order to determine that this section is clearly obnoxious to the charge of unconstitutionality in this particular. It does not set forth, nor publish at length as if it were an original act or provision, “the act or part of act amended,”...