State ex Inf. Crain v. Moore
| Decision Date | 31 October 1936 |
| Docket Number | No. 34166.,34166. |
| Citation | 99 S.W.2d 17 |
| Parties | STATE OF MISSOURI on the information of JOE C. CRAIN, Prosecuting Attorney of Christian County, at the relation of E.K. PEEBLES, Appellant, v. L.L. MOORE. |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. — Hon. Robert L. Gideon, Judge.
AFFIRMED.
G. Purd Hays and Tom R. Moore for appellant; Seth V. Conrad of counsel.
(1) That the court should have given Declaration of Law, numbered A. That said declaration is the law under the evidence in this case. Art. IV, Sec. 28, Mo. Const.; Art. III, Mo. Const.; Art. IX, Sec. 12, Mo. Const. (2) That the court erred in failing and refusing to declare the law passed by the Fifty-seventh General Assembly of Missouri, Session Acts, 1933, page 360, unconstitutional as set forth by the petitioner, as such act of the Legislature of the State of Missouri, passed by its General Assembly, as aforesaid, is unconstitutional and void. (a) That such act is violative of Article IV, Section 28, which is, "No Bill passed by the Legislature shall contain more than one subject, which shall be clearly expressed in the Title." That there is more than one subject expressed in the Bill, but not all the subjects are in the said Bill which renders it violative of said Art. IV, Section 28 are expressed in its Title, which renders said Bill Session Acts, 1933, page 360, unconstitutional and void. Sherrill v. Brantley, 62 S.W. (2d) 529; State v. Sloan, 258 Mo. 305; State ex rel. v. Gideon, 210 S.W. 358; State ex rel. v. Becker, 47 S.W. (2d) 781. (b) That said Act of the Legislature of 1933, page 360, and all sections thereof, namely, 11526, 11528, 11529, 11534, 11535 and 11541, are unconstitutional and void, as violative of the Constitution of the State of Missouri, and especially Article III, thereof, and is an encroachment upon the judicial powers granted to courts of general jurisdiction, as circuit courts and undertakes to delegate such powers to the county courts. Art. III, Mo. Const.; State v. Field, 17 Mo. 529; Merchants Exchange v. Knott, 212 Mo. 616; Cavanaugh v. Gerk, 280 S.W. 51. That county courts cannot be empowered by the Legislature to adopt or reject a law as is delegated to them by Section 11538, Session Acts, 1933, page 360. State v. Field, 17 Mo. 529; Merchants Exch. v. Knott, 212 Mo. 616. (c) That Christian County, the county in which this case originated has no office of recorder of deeds. Then how can there be a recorder ex officio or otherwise of an abolished office? Then in Section 11529 has the circuit clerk giving bond as recorder and taking over the records, books, papers, writings, seals, furniture and apparatus, which is all enjoined upon him by law as recorder, of an abolished office. That all of the sections of law in the Acts of 1933, page 360 to and including Sections 11526 to and including Section 11541. That said sections of law are unreasonable, contradictory of each other, unconstitutional and void. That the title to said Bill, Session Acts, 1933, page 360, does not point out or state what the bill contains. Art. IV, Sec. 28, Mo. Const.; Sherril v. Brantley, 66 S.W. (2d) 529; State v. Sloan, 258 Mo. 305; State ex rel. v. Gideon, 210 S.W. 358; Art. IV, Sec. 53, subdivisions 32, 33; State ex rel. Mosley v. Lee, 5 S.W. (2d) 83; Butler v. Board of Education, 16 S.W. (2d) 44; Cavanaugh v. Gerk, 280 S.W. 51; State ex rel. Dept. of Penal Institutions v. Becker, 47 S.W. (2d) 781.
Jacob Hartley for respondent.
Quo Warranto. The appellant, E.K. Peebles, was elected recorder of deeds of Christian County at the general election in November, 1934, but the Secretary of State refused to commission him because of the enactment recently theretofore of Laws 1933, page 360, making the circuit clerk ex officio recorder in counties containing less than 20,000 inhabitants. Christian County is one of these, its population according to the census of 1930 being 13,169. The respondent, L.L. Moore, was elected circuit clerk at the same election. In due course he qualified and was commissioned as circuit clerk and ex officio recorder under the new law, and entered upon the performance of the duties of both offices. Thereupon the appellant, through the prosecuting attorney, instituted this quo warranto proceeding in the Circuit Court of Christian county to oust the respondent Moore from the office of recorder. The cause was submitted on an agreed statement of facts presenting only one question — whether Laws 1933, page 360 is constitutional. The circuit court upheld the law and the relator has appealed presenting that sole question in his brief. The provisions of the State Constitution claimed to be violated are Article III; Section 28 and subdivisions 32 and 33 of Section 53 of Article IV; and Section 12 of Article IX.
[1] We take up first appellant's challenge of the act, under Section 28, Article IV of the Constitution providing that "no bill ... shall contain more than one subject, which shall be clearly expressed in its title." The caption of the act as it appears in Laws 1933, page 360, reads as follows:
As we understand it, the first point made by appellant under this head is that the bill shows on its face it contains more than one subject, because the "title" as printed in the Session Acts, aforesaid, starts out in heavier type: "RECORDER OF DEEDS: Relating to Office, Term, Bond and Election of Recorder of Deeds." Appellant's view apparently is that these catch words are parts of the title, and that each is a separate subject, thereby proving the bill contains more than one subject. He says the "original bill" as found in Article 1, Chapter 74, Revised Statutes 1929, has only the single title "Recorder of Deeds."
This contention is without merit. Catch words prefixed by the compiler of our Session Acts to the legislative title of a bill are not parts of the title in a constitutional sense. [State v. Thomas, 301 Mo. 603, 615, 256 S.W. 1028, 1029; Willhite v. Rathburn, 332 Mo. 1208, 1215, 61 S.W. (2d) 708.] The legislative title shows the act is one to repeal ten named sections of the Revised Statutes of 1929, relating to recorder of deeds, and to enact in lieu thereof seven new sections pertaining to the same subject. This was sufficient. [Asel v. City of Jefferson, 287 Mo. 195, 205, 229 S.W. 1046, 1048; State ex rel. Mueller Baking Co. v. Calvird, 338 Mo. 601, 92 S.W. (2d) 184, 188.] The combining in one bill of provisions creating the office of recorder of deeds in all counties containing 20,000 inhabitants or more, with provisions making the circuit clerk ex officio recorder in counties of less population, and other provisions concerning the term, bond and election of recorders of deeds, did not make the act double. All these matters have a natural connection with the general subject of the bill, which is recorders of deeds, and properly could be embodied in one act: Ewing v. Hoblitzelle, 85 Mo. 64, 71; Thomas v. Buchanan County, 330 Mo. 627, 634, 51 S.W. (2d) 95, 97.
[2] Another point made by appellant, if we properly interpret his brief, is this. Section 11526, Revised Statutes 1929, provided "there shall be an office of recorder in each county in the state, to be styled `the office of the recorder of deeds.'" The repealing section in the 1933 act is identically the same, except that after the word "state" there is inserted a limiting phrase, "containing 20,000 inhabitants or more." Appellant says this is merely an amendment of the former section, and not a repeal of it as the title of the bill declares; and he asserts that the title of the act is for that reason misleading. This contention, if we are correct in thinking appellant makes it, does not call for extended discussion. The repeal of a law means its complete abrogation by the enactment of a subsequent statute. 59 C.J., sec. 498, p. 899; St. Louis v. Kellman, 235 Mo. 687, 695, 139 S.W. 443, 445; whereas the amendment of a statute means an alteration in the law already existing, leaving some part of the original still standing. [59 C.J., sec. 421, p. 850; State ex rel. Gamble v. Hubbard, 148 Ala. 391, 394, 41 So. 903, 905; Aldridge v. Commonwealth, 192 Ky. 215, 218, 232 S.W. 619, 620.] In the present instance there was an express repeal of the former section.
[3] Still another contention made by the appellant is this. As already stated the reenacted Section 11526 provides there shall be an office of recorder in each county in the State containing 20,000 inhabitants or more. Reenacted Section 11528 says the clerks of the circuit courts shall be ex officio recorders in counties containing less than that population. Applying the maxim expressio unius est exclusio alterius appellant argues that Section 11526 by implication abolishes the office of recorder in counties of less than 20,000 population; and then asks how the circuit clerk can be recorder ex officio in a county where the office of recorder has been abolished! By this course of reasoning appellant arrives at the conclusion that the 1933 act is so conflicting and contradictory that it should be declared unconstitutional because the subject matter thereof cannot be clearly expressed in the title. We think we need not follow this line of argument further. The meaning and intent of the present law are too plain.
There is nothing novel in the 1933 act...
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