State ex rel. Dome v. Wilcox

• Decision Date: 28 February 1870
• Citation: 45 Mo. 458
• Parties: STATE OF MISSOURI ex rel. JOSEPH DOME et al., Defendant in Error, v. ORVILLE WILCOX, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 458

STATE OF MISSOURI ex rel. JOSEPH DOME et al., Defendant in Error,

v.ORVILLE WILCOX, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1870.

Error to Fifth District Court.

McFerran, Collier, and Broaddus, for plaintiff in error.

I. Chapter 47, Gen. Stat. 1865, is unconstitutional. It is not a law of its own force, but depends for its vitality upon a vote of the people of the locality, which vote can neither make it a law nor repeal the general law under which the plaintiff in error claims a right to the office of school director. (State v. Scott, 17 Mo. 521, 530; Const. Mo., art. 3, § 1, art. 4; 23 Barb. 355; 4 Seld. 483; 4 Ind. 347; 10 Ind. 72; Barto v. Himrod, 8 N. Y. 483; 5 Iowa, 496; Sedgw. on Stat. and Const. Law, 165; 2 Iowa, 205-6, confirmed in 9 Iowa, 203; 8 N. Y. 489, 490; 23 N. Y. 456; 1 Ohio St. 622; 16 U. S. Dig. 130, § 8; 19 U. S. Dig. 130, § 8; id. 128, § 19; 18 U. S. Dig. 138; Lafayette v. Jenners, 10 Ind. 70; Parker v. Commonwealth, 6 Barr. 507; Rice v. Foster, 4 Harr. 479.)

II. It is a special law, in cases for which provision can be and is required to be made by general laws, by the constitution of the State. (Const. Mo., art. 4, § 27; id. art. 8, §§ 4, 5; 5 Ind. 557; 10 Ind. 72; 23 N. Y. 447; 13 Cal. 175; Sedgw. on Stat. and Const. Law, 62, 482-7; 2 Bouv. Dic. 538, word “special;” 9 Cal. 502.)

III. The constitution requires equal provision to be made for all the children in the State between the ages of five and twenty-one years, in the matter of free schools; but chapter 47 destroys the equality of the constitution, and provides special privileges for the children, and imposes special burdens on the citizens in towns and villages not imposed upon other citizens of the State. (Const. Mo., art. 9, p. 40; Gen. Stat. 1865, ch. 47, p. 274.)

IV. Chapter 47 is unconstitutional and void, because in conflict with section 14, article 11, of the constitution, in this: that it authorizes the school corporation to loan its credit without the assent of two-thirds of the qualified voters.

Blenis & Collins, for defendant in error.

I. Chapter 47 is constitutional and valid. (State ex rel.Hixon v. Lafayette County Court, 41 Mo. 39-41; Blair v. Ridgley, 41 Mo. 63-175; Const. Mo., art. 8, § 4; Sess. Acts 1867, p. 160, § 5; 1 Blackst. 86; People v. Rogers, 13 Cal. 165; People v. Coleman, 4 Cal. 49; Smith v. Judge of Twelfth District, 17 Cal. 552; City of St. Louis v. Russell, 9 Mo. 512.)

II. Chapter 47 is a general law. (Sedgw. on Stat. and Const. Law, 15, 176; 1 Blackst. 86; Bouv. Law Dic., “special statutes;” Const. Mo., art. 4, § 27; Smith v. Judge of Twelfth District, supra.)

III. It is no delegation of legislative power to so frame a law that by its terms it must be submitted for approval and be approved by those for whom it was made before it can bind them. (Hobart v. The Supervisors of Butts County, 17 Cal. 25-30, 35-6; Blanding v. Burr, 13 Cal. 357; Sedgw. on Stat. and Const. Law, 463; Moers v. City of Reading, 21 Penn. St. 189; Sharpless v. The Mayor of Philadelphia, 21 Penn. St. 157; Gibbons v. Ogden, 9 Wheat. 1; 4 Wheat. 122; Cincinnati R.R. Co. v. Commissioners of Clinton County, 21 Ohio, 77; Clark v. The City of Rochester, 14 Barb. 447; 18 U. S. Rep. 38; 1 Sto. Com. 411; Starin v. Town of Genoa, 23 N. Y. 446, 452-3, 499; The City of St. Louis v. Russell, 9 Mo. 512.)

IV. The provisions in chapter 47, for levying a tax for school purposes on all property found within the limits of any school district organized under it, are constitutional and general. (Blanding v. Burr, 13 Cal. 343, 390; Sedgw. on Stat. and Const. Law, 413, 463, 501, 554; Sharpless v. The Mayor of Philadelphia, 21 Penn. St. 147; Moers v. City of Reading, 21 Penn. St. 188; Const. Mo., art. 1, § 30; id. art. 9, §§ 7, 8; Sess. Acts 1867 p. 162, § 10; The People v. Coleman, 4 Cal. 49, 62.)

WAGNER, Judge, delivered the opinion of the court.

The relator instituted a proceeding in the nature of a quo warranto, in the Livingston County Circuit Court, to determine his right to the office of school director for the town of Utica, it being a school corporation organized pursuant to chapter 47 of the General Statutes of 1865. His right to the office was resisted by the defendant, who was a director under the township organization, formed under the general law of this State in relation to common schools.

It is not denied that the town of Utica organized under chapter 47, and that all the necessary forms and conditions prescribed by the act were fully complied with; nor is it denied that the relator was legally elected as a director, in pursuance of its provisions. But the resistance to his right is placed wholly and exclusively on the ground that the chapter in controversy is unconstitutional, and therefore utterly invalid. The court below sustained the validity of the law, and the question is brought here for review by writ of error.

A question of more grave and paramount importance to the people of this State could hardly be brought in this court. Nearly every town and village has organized under the law referred to. Acting in accordance with its authority, they have built school-houses, employed teachers, incurred debts, and systematized and put in operation rules and regulations, which have greatly redounded to our educational interests. Before a court would be justified in pronouncing against this system, and producing the inextricable confusion which must necessarily follow, it should furnish reasons for its decision, at once clear, cogent, and convincing. The first position assumed by the counsel for the plaintiff in error, to invalidate the proceedings, is that the chapter whence the authority is derived is not a law of its own force, enacted by the law-making power of the land, but depends for its existence upon a vote of the people of the locality where it is sought to be made operative.

The statute under which this contest arises authorizes the various cities, towns, and villages in this State to organize for school purposes, with special privileges. In order to do this, it provides that the qualified voters of the district, at an election to be held for that purpose, shall first vote to adopt the chapter. (See 2 Wagn. Stat. 1262-63, §§ 1-2 et seq.)

It is undoubtedly true that under our form of government, laws must be enacted by the legislative bodies to which the legislative power is committed by the constitution. The legislators can not divest themselves of the responsibility of enacting laws by a reference of the questions of their passage to their constituents.

One of the earliest cases on the subject is Barto v. Himrod, 4 Seld. 483, where the Legislature of New York framed a law concerning free schools. The Legislature did not enact or adopt the law; but the tenth section of the act declared that the electors should determine by ballot, at the next annual election, whether the act should or should not become a law. There it will be perceived that the Legislature merely proposed the law, and left its enactment to the people. The Court of Appeals held that the law having never been passed by the Legislature--the only body under the constitution that was competent to pass a law--it was void and of no effect.

In 1851, the Legislature of this State enacted a law concerning roads, the thirty-third section of which declared that “if the County Court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force, as the special acts on the subject of roads and highways in the several counties of this State, that might take effect and be in force after the 4th of July next.” The above section, giving the County Courts power to suspend the law at their pleasure, was adjudged by this court to be unconstitutional and void. (State v. Fields, 17 Mo. 529.)

The court said that the act was submitted to the control of every County Court, to make such order for its being in force in their county as they in their discretion might think proper. In other words, the act, by its own provisions, repealed the inconsistent provisions of a former act, and yet left it to the County Court to say which act should be in force in their county. The act did not submit the question to the County Court as an original question, to be decided by the tribunal, whether the act should commence its operation in the county; but it became, by its own terms, a law in every county not excepted by name in the act. It did not require, then, the County Court to do any act in order to give it effect. But being the law in the county, and having, by its provisions, superseded and abrogated the inconsistent provisions of previous laws, the County Court was by the section empowered, for such time as they might think proper, to suspend the act and revive the repealed provisions of the former act. When the question was before the County Court for that tribunal to determine which law should be in force, its action was the exercise of a legislative power which, under the constitution, could not be delegated to the County Court or any other body of men in the State. The law was a positive enactment, and sought to give a tribunal the power to virtually repeal it, and revive another law in its stead. But in the same volume, in the case of State v. Scott, p. 521, it was intimated that a clause in a law establishing a new county, requiring it to be submitted to a vote of the people who were to bear the consequent burdens, might not be unconstitutional.

We have a general law on our statute book in regard to the incorporation of towns, investing the County Courts with the power to declare them incorporated upon the performance of certain...