Henderson v. Koenig And City of St. Louis

• Citation: 68 S.W. 72,168 Mo. 356
• Parties: HENDERSON, Appellant, v. KOENIG and CITY OF ST. LOUIS
• Decision Date: 02 May 1902
• Court: United States State Supreme Court of Missouri

68 S.W. 72

168 Mo. 356

HENDERSON, Appellant, v. KOENIG and CITY OF ST. LOUIS

Supreme Court of Missouri, Second Division

May 2, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Reversed and remanded.

Adiel Sherwood, W. M. Williams, Morton Jourdan and W. R. Gentry for appellant.

(1) The Act or March 20, 1897, offends the organic law, in this, that it is a "local law" "indirectly" enacted "by the partial repeal of a general law." Sec. 53 art. 4, Constitution; State v. Buchardt, 144 Mo. 84; Cooley, Const. Lim. (6 Ed.), 482; State v. Hill, 147 Mo. 68; Holden v. James, 11 Mass. 396; Lewis v Webb, 3 Me. 326; Wally's Heirs v. Kennedy, 2 Yerg. (Tenn.) 544; Calder v. Bull, 3 Dal. 388; In re Picquet, 5 Pick. 65; Durham v. Lewiston, 4 Greenl. (Me.) 140; Budd v. State, 3 Hump. (Tenn.) 483; Officer v. Young, 5 Yerg. (Tenn.) 320; Van Zant v. Waddell, 2 Yerg. (Tenn.) 260 Daly v. State, 13 Lea (Tenn.) 231; Woodward v. Brien, 14 Lea (Tenn.) 523. (2) The act violates section 53, article 4, Constitution, in this, that it is a law local with respect to the city of St. Louis, and special with respect to the judge of probate in said city. (a) The act, taking from the judge of probate the fees allowed under the general statutes for probate business, is not only applicable, at the present time, solely to the probate judge of the city of St. Louis, but can never, under our Constitution and laws, apply in the future to any other probate court in the State. St. Louis is the only city having a probate court; and there is no provision for such a court in any other city. The act referred to, under its terms, does not include the judge of the probate court of a county, notwithstanding such county may hereafter have a population of three hundred thousand inhabitants or more. It is limited to the probate judge in a city having or that may hereafter have the specified number of inhabitants. The fees for probate business may be just as great, and the number of inhabitants in the territory over which such court has jurisdiction as large, as in the case of the probate court of the city of St. Louis, but the law regulating the one will, under this act, be different from that regulating the other. This enactment for the present and the future must apply to only one judge. Constitution, sec. 20, art. 9. (b) "Statutes which are restricted in their application to one or more counties or cities, with no provision by which those subsequently attaining the specified number of inhabitants might enjoy the benefits or powers conferred by the act, have been held to fall under the prohibition. . . . But, mere form of legislation without regard to its operation will not suffice to relieve it of its special or local character. If in its practical operation it can only apply to particular persons or things of a class, then it will be a special or local law, however carefully its character may be concealed by its form of words." Dunne v. Railroad, 131 Mo. 5; State ex rel. v. County Court, 89 Mo. 237; Rutherford v. Heddens, 82 Mo. 90; State ex rel. v. Hermann, 75 Mo. 340; Ex parte Lucas, 61 S.W. 221; State ex rel. v. Hammar, 42 N. J. L. 435; State ex rel. v. City of Des Moines, 31 L R. A. 186; State ex rel. v. Somers Point, 52 N. J. L. 32; s. c., 6 L. R. A. 57; School Dist. v. Osborne School District, 6 Pa. Dist. Rep. 211; s. c., 27 Pa. L. J. 440; Sutton v. State, 96 Tenn. (12 Pickle) 696; State v. Hennan, 65 N.H. 103; State v. Pennoyer, 65 N.H. 113; Rudolph v. Wood, 49 N. J. L. 88; Brown v. Haywood, 4 Heisk. (Tenn.) 363; People v. Knopf, 183 Ills. 420; s. c., 57 N.E. 22; People v. Martin, 178 Ill. 624; State ex inf. v. Borden, 164 Mo. 221; State v. Covington, 29 Ohio St. 102; Devine v. Comrs., 84 Ill. 590; State ex rel. v. Judges, 21 Ohio St. 11; State ex rel. v. Hermann, 75 Mo. 340; People v. Board, 43 N.Y. 21. It can not be doubted that "the amount of compensation to be attached to a local office is a question in its nature local." Cricket v. State, 180 Ohio St. 22; State ex rel. v. Judges, supra. An act which by its terms can apply to but one county in the State, although purporting to be a general law applicable to all counties having a certain population, is special legislation. Devine v. Comrs., supra. A law which purports by its terms to be made for the entire State, but which then proceeds by exceptions and provisos to withdraw from its operation all but one or a few persons of a special class of persons, or all but one of a few cities and counties, is in reality a private or local law, and the courts will so declare. State ex rel. v. Hermann, supra; State v. Mayor, 45 N. J. L. 247; Railroad v. Gregory, 15 Ill. 20; Coutieri v. Mayor, 44 N. J. L. 58; Woodward v. Brien, 14 Lea 520; Topeka v. Gillett, 32 Kas. 431; s. c., 4 P. 800. (c) There must be some reason, growing out of the nature of the regulation, for putting the city of St. Louis in a class by itself. Special acts regulating the practice and proceeding in certain courts in said city and elsewhere, where the same matter could be governed by general laws, have been held invalid. State v. Kring, 74 Mo. 612; State v. Buchardt, supra; State v. Hill, 147 Mo. 63; State v. Thomas, 138 Mo. 95; Ashbrook v. Schaub, 60 S.W. 1085; Campbell's Appeal, 7 L. R. A. 193; Edmunds v. Herbrandson, 14 L. R. A. 725; Appeal of Ayres, 2 L. R. A. 577; s. c., 122 Pa. St. 266; King v. State, 87 Tenn. 304; s. c., 3 L. R. A. 210. (3) A statute fixing the compensation of an officer in a particular locality upon a basis entirely different from that of all other persons filling like offices in the State, is not a general law, and comes within the constitutional prohibition against special legislation. Gibbs v. Morgan, 39 N.J.Eq. 126; Commonwealth v. McMichael, 8 Pa. Dist. Rep. 157. (4) Section 53, article 11, Constitution, prohibits the passage of a special or local law where a general law "can be made applicable," and makes the determination of this question a judicial question, "any legislative assertion to the contrary notwithstanding." Clearly, a general law could have been made applicable in this instance, and the best proof thereof is that for twenty years we have had a general law, which the Legislature, by the Act of March 20, 1897, have attempted by indirection to partially repeal. State v. Granneman, 132 Mo. 331; Durkee v. Janesville, 28 Wis 471; Shreveport v. Levy, 26 La. Ann. 671; State v. Gritzner, 134 Mo. 529; State v. Walsh, 136 Mo. 407; State v. Higgins, 38 L. R. A. 561; s. c., 51 S.C. 51; Conlin v. San Francisco Supervisors, 33 L. R. A. 752; s. c., 114 Cal. 404; State v. Thomas, 138 Mo. 95. A general law having been once enacted, there can no longer be any question whether a general law can be made applicable, and this is true in cases where the determination of the matter is not vested exclusively in the courts as by our Constitution. State ex rel. v. Supervisors, 25 Wis. 339; State ex rel. v. Riordan, 24 Wis. 484; Walsh v. Dausman, 28 Wis. 541. (5) The judge of probate is a county officer within the meaning of the Constitution and said Constitution requires an uniform rule in laws regulating fees. Sec. 12, art. 9, Constitution. This section excludes any other method of regulation except by classification by population, and any such law (of regulation) must be uniform in its operation. The rule, Expressio unius exclusio alterius, applies. Ex parte Arnold, 128 Mo. 256; State v. Seibert, 123 Mo. 424; Heidelberg v. St. Francois Co., 100 Mo. 75; Suth., Stat. Const., secs. 325, 326, 327, 328; Bishop Stat. Cr. (2 Ed.), sec. 249; Barber v. People, 20 John. 249; Hyde v. State, 52 Miss. 665; State v. Francis, 88 Mo. 557.

B. Schnurmacher, Chas. Claflin Allen and Chas. W. Bates for respondents.

(1) An act of the Legislature must appear to be unconstitutional beyond a reasonable doubt before the courts will pronounce it invalid on that ground. Every presumption is in favor of its validity. State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Henderson, 60 S.W. 1093; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. Yancy, 123 Mo. 391; Ewing v. Hoblitzelle, 85 Mo. 64. (2) The act in question, which limits and fixes the compensation of probate judges in cities of three hundred thousand inhabitants and over, is not unconstitutional, but is a valid enactment. State ex rel. v. Mason, supra; Kansas City v. Stegmiller, 151 Mo. 189; Spaulding v. Brady, 128 Mo. 653; Kenefick v. St. Louis, 127 Mo. 1; State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. Yancy, 123 Mo. 391; Ewing v. Hoblitzelle, supra; State ex rel. v. Tolle, 71 Mo. 645; Monahan v. Walton, 69 Mo. 556; Berry v. Shields, 4 Mo.App. 259; Connor v. The Mayor, etc., 5 N.Y. 285.

SHERWOOD, P. J. Burgess, C. J., Robinson, Brace, Marshall and Gantt, JJ., concur; Valliant, J., absent.

OPINION

In Banc

SHERWOOD P. J.

-- 1. This case had its origin in these circumstances: Section 34, article 6 of the Constitution of 1875, declares that: "The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected," etc.; which section concludes with this proviso: "That until the General Assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established shall remain as now provided by law."

Section 35 Ibid, still continues the thought of the uniformity of the organization of such courts.

In 1877, the Legislature (Laws 1877, p. 229) pursuant to the behests of the Constitution as contained in the above sections, established in every county in this State, a probate court and gave such courts uniformity of organization.

Section 1 of the act just cited (which was approved April 9, 1877) provides that: "A probate court, which...