Lynch v. Murphy

• Citation: 24 S.W. 774,119 Mo. 163
• Parties: Lynch et al., Appellants, v. Murphy et al
• Decision Date: 23 December 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 774

119 Mo. 163

Lynch et al., Appellants, v. Murphy et al

Supreme Court of Missouri

December 23, 1893

Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.

Affirmed.

A. M Allen for appellants.

(1) The title of both acts are restricted to "the sale of intoxicating liquors in original packages," the word "or otherwise" expresses nothing and means nothing and the subject of said sections of said acts not clearly expressed in the title. Cooley on Constitutional Limitations [5 Ed.], p. 174. St. Louis v. Tiefel, 42 Mo. 592; Town of Cantril v. Savier, 59 Iowa 26; Swayne v Briton, 17 Kansas, 625; State v. Persinger, 76 Mo. 346; Scharp v. Tasker, 21 A. 56; Pierce v. Philadelphia, 21 A. 90; Ins. Co. v. Railroad, 19 Am. St. Rep. 858; In re Goode, 3 Mo.App. 226; State ex rel. v. Lafayette Co., 41. (2) Said acts contain more than one subject. Weaver v. Lapsley, 43 Ala. 224; Hind v. Rice, 10 Bush, 523; Railroad v. Board, 9 Neb. 507; People ex rel. v. Denehy, 20 Mich. 349; Murphy v. State, 9 Lea, 374; Philadelphia v. Railroad, 21 A. 982; Davis v. Board, 50 N.W. 862. (3) Said acts are in conflict with section 53 of said article 4, of said constitution, in this: that it is a special law regulating the affairs of counties, townships, etc., creates new officers, refunds moneys legally paid into the treasury and grants special privileges. State ex rel. v. Herman, 75 Mo. 346, and authorities cited; State ex rel. v. Hammer, 42 N. J. L. 435; Van Ripper v. Parsons, 4 N. J. L. 1; Commonwealth v. Palton, 88 Pa. St. 258; State v. Tolle, 71 Mo. 645; Pell v. Mayor, 40 N. J. L. 530; Morrison v. Backert, 112 Pa. St. 329. (4) Said acts are in conflict with sections 46 and 47, of article 4, of said constitution. Deal v. Mississippi Co., 107 Mo. 464; State ex rel. v. Walker, 85 Mo. 41; Webb v. Lafayette Co., 67 Mo. 353. (5) A valid law cannot be enacted by amending an invalid and void law. Cooley v. Rushville, 60 Ind. 330, and cases cited.

Wash Adams and J. N. Southern for respondents.

(1) The nullity of the act of 1893 must appear beyond a reasonable doubt before it will be declared unconstitutional. Ewing v. Hoblitzelle, 85 Mo. 69; Deal v. Mississippi Co., 107 Mo. 464. (2) The act as amended in 1893 contains but one subject, viz., "dramshop revenue and the distribution thereof" and this subject is clearly expressed in the title. City v. Tiefel, 42 Mo. 592; O'Leary v. Cook Co., 28 Ill. 534; State v. Miller, 45 Mo. 499; State v. Matthews, 44 Mo. 523; City of Hannibal v. Marion Co., 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 266; State v. Morgan, 112 Mo. 212. (3) The act in question being a general and not a special law does not infringe section 53, article 4, of the constitution, which inhibits special laws regulating the affairs of counties. That this act is not a special law is shown by the following authorities: State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Pond, 93 Mo. 606; Ex parte Swann, 96 Mo. 44; Rutherford v. Hamilton, 97 Mo. 543. (4) Sections 46 and 47, art. 4, of the constitution have no application, because the proviso in section 7 of the act of 1893, relates to townships that have compromised their indebtedness and concerns only the license tax derived from saloons situated in such townships. (5) The rule that a void statute cannot be revived by amendment, invoked by appellants, has no relevancy here. The rule invoked by appellants applies only where the whole act is void, or where a new subject is introduced by amendment. Eaton v. Walker, 76 Mich. 579.

Burgess J. Barclay, J., absent.

OPINION

In Banc

Burgess, J.

This is a petition for injunction by plaintiffs, who are resident taxpayers of Jackson county, Missouri, against the defendants, Murphy, Henn and Latimer, who compose the county court of that county, to enjoin and restrain them from appropriating or expending, and from causing to be expended, two-thirds of all revenue for county purposes derived from the tax on dramshop licenses, as a special road fund, in compliance with section 7 of an act of the general assembly of the state of Missouri, entitled: "An act to increase the state dramshop license and to change the distribution of the county dramshop license by amending section 7 of 'an act entitled an act to regulate the sale of intoxicating liquors in original packages or otherwise,' approved March 20, 1891." Approved March 8, 1893. (Laws, 1893, p. 150.)

A demurrer to the petition was sustained by the court below, and judgment rendered for defendants thereon, from which judgment plaintiffs appealed to this court.

Plaintiffs' first contention is, that both of said acts are void, because in conflict with section 28, article 4, of the constitution of the state, which provides: "No bill * * * shall contain more than one subject, which shall be clearly expressed in its title." It is contended by counsel for plaintiffs that the words "or otherwise," as used in the title of the act of 1891, are of no significance, neither adding anything to, nor taking anything from, the scope and meaning of the title; that such words can be of no avail, and that they express nothing and have no force or effect as a compliance with the constitutional requirement. The word "otherwise," as defined by Mr. Webster, means "in a different manner; in any other way or in any other ways; differently; contrarily." It would have been difficult to have made the title to the act more comprehensive in its scope and meaning by the use of any other words, or title. The words "or otherwise," as used in the title of the act, have a more definite, and a very different meaning from the words "or other purposes," as those words are generally used in the titles to legislative enactments. The latter words, when thus used, are laid out of consideration, and are not regarded as amounting to anything, but it is not so with the words "or otherwise."

Section 7, as it originally stood, reads as follows: "Upon every such license there shall be levied a tax, not less than $ 25, nor more than $ 200, for state purposes; not less than $ 250, nor more than $ 400, for county purposes, for every period of six months, the amount of tax, in every instance, to be determined by the court granting the license. It shall be the duty of the county courts of the several counties of this state to cause one-half of all the revenue for county purposes, derived from the tax on dramshop license, to be set apart as a special road fund of such county, and cause the same to be divided among the various road districts in the county, in proportion to the number of miles of public road in each district. Said fund shall be expended on the main lines of road in each district, which lead to the most important towns in the county, in proportion to the public utility of such roads, and shall be expended under the supervision of the road overseer of each district, or some one appointed by the county court for that purpose, who shall be a resident taxpayer of the district, and shall give a like bond and shall receive the same per diem for his services as the road overseer of the district. Provided, that in counties having fifty thousand inhabitants or less, where such license tax is derived from saloons situated in any township that is indebted, and that have compromised, or that may hereafter compromise their indebtedness, then two-thirds of the county tax, so derived from said saloons, shall be applied by the county court to the payment of the interest and principal of such township indebtedness until such debt is fully paid." The only change made by the act of 1893 was in changing the amount of the minimum tax to be levied from $ 25 to $ 50; in providing that two-thirds instead of one-half, of all the revenue for county purposes, derived from the tax on dramshop licenses, be set apart as a special road fund; and in providing "that the courts shall, in their discretion, have the power to use all or any part of said fund in one or more districts." It will thus be observed that there was no material change in the provision of the section now under consideration, by the amendment, which would, in any manner, affect its validity.

The title of the act is very general and is broad and comprehensive enough to embrace within its meaning the sale of intoxicating liquors in any manner and to provide for the appropriation of the revenue arising therefrom in any way unless manifestly not within the meaning of the title to the act. The generality of title is no objection so long as it was not made to cover up legislation incongruous in itself, and which, by no fair construction, could be considered as having a necessary or proper connection with the title. "It has accordingly been held that the title of 'an act to establish a police government for the city of Detroit', was not objectionable for its generality, and that all matters properly connected with the establishment and efficiency of such a government, including taxation for its support, and courts for the examination and trial of offenders, might constitutionally be included in the bill under this general title. Under any different ruling, it was said, 'the police government of a city could not be organized without a distinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended object, from the inherent difficulty in expressing the legislative will when restricted to such narrow bounds.'" Cooley's Constitutional Limitations, p. 172, and authorities cited; Bright v. McCullough, 27 Ind. 223; Annapolis v. State, 30 Md. 112; State ex rel. v. Union...