State ex rel. Henderson v. Cnty. Court of Boone Cnty.

• Decision Date: 31 July 1872
• Parties: THE STATE OF MISSOURI ex rel. JAMES A. HENDERSON, ON INFORMATION OF A. J. BAKER, ATTORNEY-GENERAL, Relator, v. THE COUNTY COURT OF BOONE COUNTY, Defendant.
• Court: Missouri Supreme Court

50 Mo. 317

THE STATE OF MISSOURI ex rel. JAMES A. HENDERSON, ON INFORMATION OF A. J. BAKER, ATTORNEY-GENERAL, Relator,

v.THE COUNTY COURT OF BOONE COUNTY, Defendant.

Supreme Court of Missouri.

July Term, 1872.

For statement of case see dissenting opinion of Judge Wagner.

P. E. Bland, with A. J. Baker, for relator.

I. The act of the general assembly of April 1, 1872, creating the office of Probate Court for Boone and other counties, is not in violation of section 27, article IV, of the State constitution. The general prohibition in the latter clause of said section has reference to the whole section, and embraces those subjects that are of the same general class as those already enumerated in the first clause, and comes within the doctrine of ejusdem generis as settled by this court in The City of St. Louis v. Laughlin, 49 Mo. 559. Without the application of this well-settled doctrine of ejusdem generis to the general clause of this section, the framers of the constitution would have committed the egregious folly of embodying in the fundamental law of the State a principle which would necessarily operate to create an iron conformity throughout the State, of relief as applied to circumstances and interests most widely dissimilar; and, without any possible good resulting therefrom, would have either deprived the people of the more wealthy and populous counties of the judicial facilities absolutely required by them, or required of more sparsely settled and poorer counties the burden of supporting a system of which they had no need.

II. The next question is, was there a vacancy in the office of probate judge in Boone county after the first of June, 1872? that being the day fixed by law for the act of April 1, 1872, to take effect. The act did not create a new office. It simply detached from the County Court of the counties named in the act a part of their jurisdiction as conferred by the General Statutes, to-wit: probate jurisdiction, and conferred it upon another officer to be styled the ““judge of the probate court.” After the act took effect there was an office of probate judge without any incumbent, and no such incumbent could be elected prior to the general election. The performance of very important duties required of that officer might be required ad interim. But the County Court, neither by its justices or clerk, could any longer perform these duties.

III. The third and last question is, was it the duty of the governor to fill this vacancy by appointment? This duty is made clear by section 8, article v, of the State constitution. (Wagn. Stat. 50.)H. C. Pierce and W. Gordon, for defendant.

I. The act establishing Probate Courts in Boone and other counties is a special law, enacted in a case for which provision is required to be made by a general law. It is in violation of article IV, section 27, of the constitution of Missouri, and therefore null and void. (See 45 Mo. 464; 5 Ind. 557; 10 Ind. 72; 40 Mo. 186; 48 Mo. 468.)

II. Although the act aforesaid took effect from and after June 1, 1872, yet it is plain from section 21 of same act, that no court was contemplated to be held by virtue of said act until January, 1873. No vacancy, therefore, existed at the time the governor appointed said Henderson.

III. This is not a case in which the governor is authorized to fill a vacancy under article v, section 8, of the constitution of the State of Missouri. That section says “when any office shall become vacant,” etc. In this case the office of probate judge was never filled under said act by election, and hence it could not have become vacant.

IV. The Boone County Court had jurisdiction of probate matters, even under said act, until January, 1873.

ADAMS, Judge, delivered the opinion of the court.

1. The first question presented by this record is the constitutionality of the act of the Legislature establishing a Probate Court for Boone county. It is urged that the Legislature is prohibited from passing such an act by the provisions of section 27 of article IV of the constitution of this State. The section referred to, after enumerating many cases where the Legislature is positively prohibited from passing a special law, contains this clause: “The general assembly shall pass no special law for any case for which provision can be made by a general law, but shall pass general laws providing, so far as it may deem necessary, for the cases enumerated in this section and for all other cases where a general law can be made applicable.” The new constitution containing this section took effect the fourth day of July, 1865. Since that time the Legislature, by special acts, has created in various parts of the State many Probate and Common Pleas Courts. These courts have been in full operation for many years, and have transacted a great deal of business, and are still transacting business. Large investments have been made, and titles to property acquired and transferred, on the faith that these courts were legally established, and that their acts and proceedings were valid. If they have no legal existence, all their acts and proceedings are coram non judice and absolutely void. A tribunal for the transaction of judicial business can only be created by the supreme power of the State. No person on his own motion has the power to erect himself into a court. He may without any authority assume the office of judge of a court which has a legal existence, and preside as such, and all the acts of a court presided over by him will be valid. But where there is no law authorizing such court to be held, and the judge assumes to create a court and preside over it, the tribunal so created and all its proceedings are absolutely void. Can the office of judge of a court be assumed where there is no such office and no such court in existence? Such a proposition seems to me to be wholly untenable.

Can there be such a thing as a de facto court where there is a rightful government? If the government itself is a usurpation, as long as such government lasts the courts established by it are de facto courts, because the only existing government is de facto; and when the rightful government is restored, the acts of such courts, as a matter of necessity, must be held to be valid. That is not the case in a rightful government. The authority to establish the court must emanate from the supreme power, otherwise the court itself is an absolute nullity and all its proceedings utterly void. In the State of Maine a probate judge assumed to hold a court at a place where he was not authorized by law to hold this court, and even in such case the Supreme Court of that State held the acts of the court a nullity. (See 27 Me. 114.)

These observations belong to the cause, and are not made because I consider the act of the Legislature irreconcilable with the constitution, but to indicate the deep magnitude to the people, as well as to individuals, of the question presented by this record. In Illinois the Supreme Court of the State refrained from looking into the constitutionality of certain acts of a local character on account of the long-continued practice of the Legislature and the far-spread ruin it would produce to declare them void. (See Johnson v. Joliet & Chicago R.R. Co., 23 Ill. 202.) We are not without authority in support of the constitutionality of this law. So far as legislative action can give sanction to such a law, it has received it from the uniform practice of the Legislature ever since the constitution was framed. It has also received the sanction of this court in the many cases which have been brought here from those courts by appeal and writ of error, in which solemn judgments have been pronounced without objection, and which would be void if the court of original jurisdiction had no legal existence. In the case of The State v. Ebert, 40 Mo. 186, this court sustained the act creating the St. Louis Court of Criminal Correction and providing for the trials of misdemeanors by information, on the ground that it was necessary in a large city like St. Louis. So in the case of The State ex rel. Dome v. Wilcox, 45 Mo. 458, the same question was raised and decided in the same way in regard to the statute authorizing cities, towns and villages to organize for school purposes. How was it any more necessary in these cases to resort to special laws than in the cases of Common Pleas Courts and Probate Courts? Either class of enactments might be supplied by general laws, but the special laws are deemed much better, and therefore are considered necessary. Who is to decide when such necessity arises? The word “necessary” admits of all degrees of comparison. But a special law is scarcely absolutely necessary in any case, as in almost every case the particular end in view might be attained by a general law. The Supreme Court of Indiana, in the case of Thomas v. Board of Commissioners, 5 Ind. 4, stood upon the superlative degree and required the strictest construction of a similar clause in the constitution of that State, and said that in no case could a special law be resorted to where a general law would cover the case. I cannot see the force of the reasoning of the Indiana court in this case, and indeed the authority of the case is very much shaken, if not entirely set aside, in a subsequent case, where an act creating a new judicial circuit was upheld. (See Stocking v. The State, 7 Ind. 328.) It will be observed that the Indiana constitution, like our own, inhibited certain local and special acts of legislation, and then in a subsequent section (§ 23, art. IV) it was provided that all laws should be general whenever a general law could be made applicable. In speaking of the law creating the judicial circuit, the court said: “This does not seem to us to be such a case, and even if we doubted we should be bound to throw the benefit of our doubt in favor of the constitutionality of the law.”

If the court had been governed by the reasoning in the fiftn volume, this...