State ex rel. Donham v. Yancy

• Decision Date: 25 June 1894
• Parties: The State ex rel. Donham, Appellant, v. Yancy
• Court: Missouri Supreme Court

27 S.W. 380

123 Mo. 391

The State ex rel. Donham, Appellant, v. Yancy

Supreme Court of Missouri

June 25, 1894

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

Henry C. Young, George Pepperdine, T. J. Delaney and J. M. Harrell for appellant.

(1) The act of the legislature under which respondent holds is in conflict with sections 53 and 54, article 4, constitution of Missouri, prohibiting local and special legislation. First. The act creating the criminal court of Greene county, though valid, was special and local. Under the provisions of section 27, article 4, of the constitution of Missouri, 1865, similar acts were held to be local and special, but sustained upon the ground that the legislature was the sole judge as to whether a general law would apply. State v. County Court, 50 Mo. 324; Hall v. Bray, 51 Mo. 294; State v. Ebert, 40 Mo. 190; Smith v Howard, 53 Mo. 88; State v. Daniels, 66 Mo 192; State ex rel. v. County Court, 51 Mo. 82. Second. The framers of the constitution and the people in adopting it are presumed to have had these decisions in view when they amended the old section of the constitution and inserted the present provisions in lieu thereof. Endlich on Interpretation of Statutes, secs. 517, 530; State v Daniels, 66 Mo. 192; Sedgwick on Const. St. and Const., 235, 236; Freeholders v. Stevenson, 46 N. J. L. 173; Tiger v. Common Pleas, 42 N. J. L. 631; Saunders v. Anchor Line, 97 Mo. 26; State ex rel. v. Owsley, 122 Mo. 68. Third. And the statute assailed being an amendment of a special and local law, is necessarily special and local, and void because no notice of intention to apply therefor was given. Ex Parte Pritz, 9 Iowa, 30; Davis v. Woolnaugh, 9 Iowa, 104; Hetherinyton v. Bissel, 10 Iowa 145; Tiger v. Common Pleas, 42 N. J. L. 631; State v. Kring, 74 Mo. 612. (2) First. The act is special and local within the meaning of the recognized and accepted authorities on the subject. State v. Hermann, 75 Mo. 341; State v. Kring, 74 Mo. 612; State v. County Court, 89 Mo. 238; State v. Tolle, 71 Mo. 645. Second. It is special, because it selects an individual from a class, and is leveled at him. State v. Hermann, 75 Mo. 341; State ex rel. v. Pond, 93 Mo. 640; State v. Hammer, 42 N. J. L. 435; Skinner v. Collector, 42 N. J. L. 407; Pell v. Newark, 40 N. J. L. 77; Tiger v. Morris, 42 N. J. L. 631. Third. It is special, because it does not "include all and exclude none of a class." Weinman v. Railroad, 12 A. 288; Mitchell v. KcCorkle, 69 Ind. 184; Bingham v. Gibbs, 46 N. J. L. 513; State ex rel. v. Common Council, 25 A. (N. J) 113; Van Riper v. Parsons, 40 N. J. L. 123; Davis v. Clark, 106 Pa. St. 377; Gilson v. Board, 27 N.E. 235. Fourth. It is special, because it establishes a novel tenure of office, which is peculiar to the appointee of this office and applicable to no other clerk. R. S. 1889, sec. 1964; State ex rel. v. Blakemore, 104 Mo. 340. Fifth. It is special, because it vacates the office of clerk of the criminal court, of Greene county, before the expiration of his term and affects, the term of office of no other clerk. R. S. Mo., sec. 1988; Cooley's Const. Law [5 Ed.], pp. 483, 485; State ex rel. v. Hermann, 75 Mo. 340; Montgomery v. Com., 91 Pa. St. 125; Devine v. Board, 84 Ill. 590; Weinman v. Railroad, 12 A. 288; 118 Pa. St. 192; Sutherland on Stat. Const., secs. 127, 129. (3) The act is a regulation of the internal affairs of Greene county. Gibbs v. Morgan, 39 N.J.Eq. 126; State ex rel. v. Henning, 110 Mo. 82; Commonwealth v. Patton, 88 Pa. St. 258; State ex rel. v. Hammer, 42 N. J. L. 435. (4) The act is one prescribing the powers and duties of an office in a county. Farrell v. Board, 24 P. 868. (5) A general law could have been made applicable. See point (2), supra, subpoints second, third and fourth; R. S. 1889, secs. 1964, 1988. (6) The causes of State ex rel. v. Fields, Hughlett v. Hughes, and the ones upon which they are based do not apply, because: First. There is no specific constitutional requirement that the legislature shall enact the law under discussion, and the court affected is a creature of the statute purely. State ex rel. v. Smith, 82 Mo. 53; State ex rel. v. Laughlin, 73 Mo. 447; People v. McCann, 16 N.Y. 60; Williams v. People, 24 N.Y. 405. Second. The constitutional grant of power or requirement to legislate upon a given subject, does not, of necessity, authorize special legislation with relation to that subject in all cases. Hyott v. Allen, 54 Cal. 353; Sedg. on Stat. Const., 19; People ex rel. v. Potter, 47 N.Y. 379. Third. A different construction would nullify, or at least cripple the effect of the constitutional provisions in relation to special legislation. Sec. 32, art. 6, Const. Mo.; sec. 10, art. 8, Const. Mo.; secs. 1, 3, 5, art. 9, Const. Mo.; secs. 12, 14, 27, art. 12, Const. Mo.; secs. 7, 9, art. 14, Const. Mo.; sec. 15, schedule under art. 15, Const. Mo. Fourth. And the following cases relied upon by respondent have either been held to be general laws, within the recognized acceptation of the term, or fall literally within the rule invoked, that the exercise of the power could not be had, except by special legislation. State ex rel. v. Hughes, 104 Mo. 461; Ewing v. Hoblitzelle, 85 Mo. 74. (7) The act violates section 5, article 14, section 39, article 6, constitution, under which relator was entitled to hold his office for the full term for which he was commissioned. State v. McAdoo, 36 Mo. 453; State v. Stonestreet, 99 Mo. 361; People v. Jewett, 6 Cal. 291; State ex rel. v. Harrison, 113 Ind. 435. (8) The act, while preserving the duties and emoluments of the office intact, attempts to remove the officer and devolve the office upon another. State v. Leonard, 7 S.W. (Tenn.) 453. (9) The act violates section 39, article 6, constitution, which makes the office of clerk of all courts of record, except the supreme court and courts of appeal, elective. Young v. Bordman, 97 Mo. 181; State ex rel. v. Blakemore, 104 Mo. 340; Town v. Harris, 3 S.W. 614; Sill v. Village, 15 N.Y. 301; Opinion of Justices, 117 Mass. 613. (10) The act is void, because passed in violation of the constitutional mandates relative to the form and manner of adoption of a bill. First. The bill as it passed the house, had no title, and its title was not read and not agreed to in the house. Const. Mo., sec. 28, art. 4; State ex rel. v. Mead, 71 Mo. 266; State v. Wray, 109 Mo. 594; Dart v. Bagley, 110 Mo. 42; Sutherland on Const. Stat. and Const. Second. Bill was not reported from committee. Sec. 27, art. 4, Const. of Mo. Third. Motion to reconsider was not entertained immediately after the bill failed to pass. Const. of Mo. sec. 35, art. 4. Fourth. Bill was not signed by speaker before it was presented to the governor and could not then be recalled. Const. of Mo., sec. 38, art. 4; People v. Devlin, 88 Am. Dec. (N. Y.) 377. (11) The commission issued before the law went into effect and is void. State ex rel. v. McGrath, 64 Mo. 140; State ex rel. v. Harrison, 113 Ind. 434. (12) The act creating the criminal court of Greene county also created the separate office of clerk of said criminal court. 19 Am. and Eng. Encyclopedia of Law, p. 380; State ex rel. v. Walker, 97 Mo. 162. But it matters not whether a separate office was provided for or not, the act assailed is still void. Sec. 12, art. 9, Const. of Mo. (13) The New York authorities cited by respondent as to what constitutes a local law are shown to be inapplicable to this case by other authorities drawn from the same state. Kerrigan v. Force, 68 N.Y. 381.

Goode & Cravens for respondent.

(1) If there was such an office as clerk of the criminal court of Greene county prior to the act of April 7, 1893 (which we deny, and insist that the office was first created as an independent function by that act) this would not render the act void on the ground that it impaired a vested right of the defendant. All offices of merely statutory origin are but creatures of the legislative will, and the legislature may at any time abolish, abridge the term, or diminish the emoluments of, an office created by statute or pursuant to the authority given by statute (but not of one created by the constitution) and the incumbent whose interest is affected has no ground of complaint. Primm v. Carondelet, 23 Mo. 22; Advisory Opinion of Judges, 38 Mo. 419; State ex rel. v. Davis, 44 Mo. 129; State ex rel. v Straat, 41 Mo. 45; State ex rel. v. Herman, 11 Mo.App. 43; Schulenburg v. Evans, 59 Mo. 41; Westburg v. Kansas City, 64 Mo. 493; Givens v. Daviess Co., 107 Mo. 603. (2) The act creating the office of clerk of the criminal court of Greene county, Missouri, is not within the constitutional inhibition against local laws, for the same reasons that the act creating the criminal court of Greene county is not within the inhibition. "No law is special or local within the meaning of the constitutional inhibition, when the constitution contains a special grant of power to pass such a law." State ex rel. v. County Court, 50 Mo. 317; State ex rel. v. Walton, 69 Mo. 556; State ex rel. v. Tolle, 71 Mo. 645; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Shields, 4 Mo.App. 259. The effect of article 6, section 31, has been construed to be a direct grant of power to the legislature. Ex parte Renfrow, 112 Mo. 591. This clearly gave the general assembly the power to create a criminal court in Greene county when it saw proper. "The power to provide for a clerk and to define his duties is necessarily incident to the power to establish a court." Ex parte Gustav Kiburg, 10 Mo.App. 442. (3) This is not a local act within the meaning of the constitutional inhibition, because it affects the judicial department of the state, which is a unit and any particular court is identified with the...