Gross v. Gentry County

• Decision Date: 21 June 1928
• Docket Number: 28408
• Citation: 8 S.W.2d 887,320 Mo. 332
• Parties: R. L. Gross v. Atchison and Gentry Counties et al.; Gentry County and Paul Brown, Sheriff, Appellants
• Court: Missouri Supreme Court

8 S.W.2d 887

320 Mo. 332

R. L. Gross v. Atchison and Gentry Counties et al.; Gentry County and Paul Brown, Sheriff, Appellants

No. 28408

Supreme Court of Missouri

June 21, 1928

Motion for Rehearing Denied July 3, 1928.

Appeal from Gentry Circuit Court; Hon. John M. Dawson Judge.

Reversed and remanded (with directions).

J W. McKnight and George P. Adams for appellants.

(1) The court erred in holding that Sec. 2862, R. S. 1899, was not void and was not in conflict with Sec. 8, Art. 11 Constitution of 1875. (2) The court erred in holding that Sec. 4423, R. S. 1889, was repealed by Section 34 of an Act of 1899. (3) Section 34 of the Act of 1899, the same being Sec. 2862, R. S. 1899, was intended for a revision, and amendment and re-enactment of Sec. 4423, R. S. 1889, and was in conflict with Section 8 of Article 11 of the Constitution, and was void, and by reason thereof Sec. 4189, R. S. 1899, did not have the effect of repealing said Section 4423, the purpose of the amendment having failed. (4) By the provisions of Secs. 4183-4190, R. S. 1899, Section 4423 was continued in force and effect, for the reason that Section 34 of Act of 1899, the same being Sec. 2862, R. S. 1899, was void, because in conflict of Art. 11, Sec. 8, of Constitution, and did not have the effect of repealing Sec. 4423, R. S. 1889, and because a void statute could not be repugnant to or in conflict with a valid existing statute. (5) By Sec. 8, Art. 11, of Constitution, and statutes in force at the time of the adoption of said section, the proceeds of forfeited recognizances were required to be paid into the treasury of the county where incurred, for the use and benefit of the county public school fund. Since the adoption of said section of Constitution, no valid statute has been adopted by the Legislature changing said policy. (6) The proceeding by scire facias to enforce said forfeiture was the institution of a new suit and not a continuation of the criminal action and was a civil action accruing in Gentry County, and was required to be instituted by the Prosecuting Attorney of Gentry County, and the Prosecuting Attorney of Atchison County had no power or authority to institute and prosecute the same. It would be against public policy to require the Prosecuting Attorney of Gentry County to prosecute said scire facias proceeding for the use and benefit of Atchison County, and to require the costs of such proceeding in so far as not payable by principal and sureties of the bail bond, to be borne by Gentry County and its officers.

W. R. Littell for respondents.

(1) Under the law and the pleadings, Atchison County is entitled to the forfeiture fund herein and the court properly decided the case in its favor. Sec. 8, Art. 11, Mo. Constitution; Secs. 3708, 4189, 4190, R. S. 1919; State v. Rose, 78 Kan. 600; Washington County v. State, 43 Ark. 264; Findley v. Erwin, 6 N.C. 244; In re Speer, 54 Ga. 40; County of Rock Island v. County of Mercer, 24 Ill. 135; County of Galveston v. Noble, 56 Tex. 575. (2) The disposition of the proceeds collected upon forfeited bail bonds or recognizances is generally regulated by constitutional or statutory provisions, and if there is none it would be governed by regulations governing other similar matters, such as fines or penalties. The constitutional and statutory provisions governing the disposition of fines, penalties and costs in criminal cases in change of venue cases are found in the following citations: Secs. 4189, 3988, 4190, 11165, 736, R. S. 1919; Mo. Constitution, Art. 11, sec. 8. (3) In the absence of a statute or constitutional direction as to the county to which the proceeds of forfeitures in criminal cases go, the county in which the criminal cause originated and in which the costs of finding the indictment and bearing the burden of the expense of investigation, as a matter of public policy, is entitled to the fund. County of Galveston v. Noble, 56 Tex. 575; County of Rock Island v. County of Mercer, 24 Ill. 135; Washington County v. State to use of Benton County, 43 Ark. 267; Foley v. Erwin, 6 N.C. 244; State v. Rose, 78 Kan. 600. (4) Admitting that Secs. 15, 5 and 19, Laws 1842, were passed as contended by appellants, they are not inconsistent with respondents' contentions. They would have to be read together and harmonized, and when that is done their meaning and purpose is that all fines, penalties and forfeitures shall be paid into the treasury of the county in which the indictment was originally found or the proceedings were originally instituted, when change of venue is taken. (5) The effect of the adoption of the revising bill of the Senate in 1899 was to repeal Sec. 4423, R. S. 1889, even though Section 2682 of the revising bill was void. A revised bill which undertakes to amend a former law will repeal such former law, though the revised bill be unconstitutional. State ex rel. v. Wardell, 153 Mo. 319. When a revised bill covers a whole subject, such sections of the old law as are omitted from the revised bill, are repealed. Butler v. County, 108 Mo. 630; State ex rel. v. Woodson, 128 Mo. 497; Belfast Inv. Co. v. Curry, 264 Mo. 496.

Walker, C. J. White, Blair and Atwood, JJ., concur; Ragland and Gantt, JJ., dissent.

OPINION

WALKER

This is a suit brought by a surety on a judgment rendered on a forfeited recognizance. Its purpose is to determine ownership between two counties of a sum of money paid by the surety into court in satisfaction of the judgment, upon the condition that the counties be required to interplead to determine the ownership of the forfeited fund. This was done. The claims of the respective counties were heard and considered and a finding in favor of one of them was made and the other perfected an appeal to this court.

One Charles Gross was charged by indictment in the Circuit Court of Atchison County with a felony. He applied for a change of venue and the same was granted and the case was ordered sent for trial to Gentry County. Following the granting of the change of venue he entered into a recognizance in the Circuit Court of Atchison County, with the plaintiff as surety, for his appearance in answer to said charge before the Circuit Court of Gentry County. He failed to appear before the latter court and a forfeiture was entered and a judgment rendered thereon against him and his surety. The latter paid into court the amount of the judgment rendered, with the result stated. The question at issue, is, does the forfeited fund belong to Atchison County where the criminal action originated and the recognizance was entered into, or to Gentry County, where the case was taken by change of venue and the judgment on the forfeiture was rendered?

I. There is no dearth of authority, constitutional or statutory, as to the manner in which the funds, derived from judgments rendered on forfeited bonds or recognizances, are to be disposed of when collected or paid into court, in the county where the criminal action was commenced. There is, however, no express statute directing such disposition where a forfeiture is taken in the circuit court of a county to which the criminal action has been transferred by change of venue, as in the instant case. Despite the general terms of the Constitution and the statute it cannot be said, under a liberal interpretation of the same, with a view to a necessary and reasonable disposition of the matter at issue, that we are confronted with a casus omissus. The words employed in the authority granted in the organic and statutory law may, without straining their meaning, be so construed as to provide a means for the determination of this case with a proper regard for the rights of the respective counties. In the disposition of this case, therefore, we are not attempting to supply what the framers of the Constitution or the Legislature omitted in enacting the law, the result of which would be to usurp the law-making power; but we are construing the meaning of general words, which cursorily considered only apply to cases in the county where the criminal action was commenced and not to those in which a change of venue has been granted. This, under the rules of interpretation, we regard as permissible where, as at bar, the importance of the subject and the necessities of the case demand judicial action.

II. The contention is made by Gentry County in its intervening petition, but is abandoned in its brief and argument, that the entire Article XV (Chap. 16, R. S. 1899), is invalid in that it contains more than one subject and that the matter contained therein is not clearly expressed in its title, as required by Section 28 of Article IV of the State Constitution. The title to the revised bill embodying this article, as shown by the original rolls, is as follows:

"An act to revise and amend Article 14, relating to 'costs in criminal cases,' of Chapter 48, entitled 'Criminal cases, practice and proceedings' of the Revised Statutes of Missouri, 1889, and the acts amendatory thereto."

This title discloses that the provision of the Constitution that a bill shall consist of one subject, which shall be clearly expressed in its title, is in general terms sufficiently complied with. It not only defines the chapter of which the article is a part but designates it in the exact words employed in the title to this article in former revisions of the statute. It does not, therefore, mislead but serves as a guideboard to indicate not only the subject-matter but the purpose of the article. Being sufficiently comprehensive in its terms and enacted as a revised bill with all of the formality required for the adoption of any other law, in that it was required to be read and authenticated by the Legislature and signed by the Governor in the same manner as any other bill, we...