State ex rel. Maggard v. Pond

• Decision Date: 19 December 1887
• Parties: The State ex rel. Maggard v. Pond et al., Judges of the County Court of Grundy County, Appellants
• Court: Missouri Supreme Court

6 S.W. 469

93 Mo. 606

The State ex rel. Maggard v. Pond et al., Judges of the County Court of Grundy County, Appellants

Supreme Court of Missouri

December 19, 1887

Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed.

R. A DeBolt, P. C. Stepp, Geo. Hall, A. G. Knight, Luther Collier O. M. Shanklin and A. H. Burkholder for appellants.

(1) The demurrer admits the facts set up and pleaded in the answer or return of defendants to the alternative writ of mandamus. McKenzie v. Matthews, 59 Mo. 99; Plant Seed Co v. Michel Seed Co., 23 Mo.App. 579; State to use v Finn, 19 Mo.App. 560. (2) While it is conceded that the legislators cannot divest themselves of the responsibility of enacting laws by a reference of the question of their passage to their constituents, it is equally well settled that a law may be passed by the legislature to take effect on the happening of a future event or contingency. State ex rel. v. Wilcox, 45 Mo. 465; Lammert v. Lidwell, 62 Mo. 191; Cooley's Const. Lim. [3 Ed.] 117, 123-124; City v. Alexander, 23 Mo. 483. (3) And it makes no difference what the nature of the contingency is, so that it be a moral and legal one, not opposed to sound policy. Such contingency is a vote of a majority of the people immediately interested or affected. State v. Parker, 26 Vt. 357; Smith v. Janesville, 26 Wis. 291; State ex rel. v. O'Neill, 24 Wis. 149; State v. Noyes, 10 Fost. [N. H.] 293; Hobart v. Supervisor, 17 Cal. 32-33; Locke's Appeal, 13 Am. Rep. 719-720; Dome v. Wilcox, supra; St. Louis v. Alexander, supra; Township Organization Law, 55 Mo. 295; State ex rel. v. Mayor St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450; State v. Winkelmeier, 35 Mo. 103. (4) Upon principle, it makes no difference whether the majority is expressed by ballot at an election, or in the form of a petition or certificate. It is for the legislature to prescribe the mode in which it shall be done. State ex rel. v. Ct. Com. Pleas, 13 Am. Rep. 424. (5) The state has the right, under the exercise of its police power, to license or prohibit altogether the sale of intoxicating liquors, or to confer such authority on the local authorities of incorporated towns or cities. Trall v. Hudson, 78 Mo. 302; St. Louis v. Fitz, 53 Mo. 585; Spitler v. Young, 63 Mo. 44; State v. Binder, 38 Mo. 450; Inhabitants v. Fox, 84 Mo. 59; Cooley on Const. Lim. 123-4, and note 1; State v. Ct. Com. Pleas, 13 Am. Rep. [N. J.] 425; Commonwealth v. Bennett, 108 Mass. 27; State v. Simonds, 3 Mo. 414. (6) By its charter, under which it was incorporated, such police powers were conferred on the town of Trenton. See Powers of Council, sect. 1, art. 3, par. 9; Laws of Mo., 1872, p. 482. Assuming, then, the right of the legislature to confer such powers upon cities and towns, can it be seriously contended that the legislature may not confer the power to adopt, by a vote of the people within such municipalities, a law drawn up and regularly enacted by that body? 3 Cooley's Const. Lim. 123-124, and note; State v. Noyes, 10 Fost. 293; Bank v. Brown, 26 N.Y. 467; People v. Salomon, 51 Ill. 37; People v. Reynolds, 5 Gil. 1; Alcorn v. Hill, 38 Miss. 652; Attorney Gen'l v. O'Neal, 24 Wis. 155. (7) But if this law be construed as an act authorizing towns by a majority vote to prohibit the sale of intoxicating liquors, it may still be supported under the power of police regulations. State ex rel. v. Ct. Com. Pleas, 13 Am. Rep. 425; License Cases, 5 How. [U.S.] 589; 3 Cooley's Const. Lim. 583; State v. Donehey, 8 Ia. 396; One Hause v. State, 4 Green [Iowa] 172. (8) Nor is the constitutionality of the act affected for the reason that it declares that any person violating its provisions shall be deemed guilty of a misdemeanor, and fixes a penalty therefor. State v. Ct. Com. Pleas, 13 Am. Rep. [N. J.] 422; Locke's Appeal, 13 Am. Rep. [Pa.] 716; State v. Wilcox, 19 Am. Rep. [Conn.] 536; Fell v. State, 20 Am. Rep. [Md.] 83; Commonwealth v. Weller, 29 Am. Rep. [Ky.] 408; State v. Cook, 31 Am. Rep. [Minn.] 344; Boyd v. Bryant, 37 Am. Rep. [Ark.] 7; Santo v. State, 2 Ia. 165; Caldwell v. Barrett, 73 Geo. 604. (9) A law will not be declared unconstitutional, unless its invalidity clearly appears. Stephens v. Bank, 43 Mo. 390; State ex rel. v. Railroad, 48 Mo. 468; State v. Able, 65 Mo. 362; State ex rel. v. Laughlin, 75 Mo. 149; Ewing v. Hoblitzelle, 85 Mo. 70; Phillips v. Railroad, 86 Mo. 540; Kelly v. Meeks, 87 Mo. 400; State v. Addington, 77 Mo. 110. (10) The law under consideration is not a special law, for "it is a settled construction of similar constitutional provisions that a legislative act which applies to and embraces all of a class of persons who are, or may come into, like situations and circumstances, is not partial." Phillips v. Railroad, 86 Mo. 540; Humes v. Railroad, 82 Mo. 221; Mayor v. Dearmon, 2 Snead, 104; Davis v. State, 3 Lea, 379; Snyder v. Warford, 11 Mo. 517; State ex rel. v. Tolle, 71 Mo. 650. (11) Acts similar to the one here involved have elsewhere been held constitutional. State ex rel. v. Ct. Com. Pleas, 13 Am. Rep. [N. J.] 422; State v. Wilcox, 19 Am. Rep. [Conn.] 538; Commonwealth v. Bennett, 108 Mass. 27; Commonwealth v. Dean, 110 Mass. 357; Fell v. State, 20 Am. Rep. 83, 85; State v. Cooke, 31 Am. Rep. [Minn.] 344; Boyd v. Bryant, 37 Am. Rep. [Ark.] 6; Erlinger v. Boneau, 51 Ill. 94; People v. Salomon, 51 Ill. 37, 53; People v. Reynolds, 5 Gilm. 1; Santo v. State, 2 Ia. 206; Bank v. Brown, 26 N.Y. 467; Railroad v. Com'rs, 1 Ohio St. 77; Hobart v. Supervisors, 17 Cal. 32; People v. Nalley, 49 Cal. 478; Bull v. Reed, 13 Gratt. [Va.] 78; Gloversville v. Howell, 70 N.Y. 290; Groesch v. State, 42 Ind. 547; Bancroft v. Dumas, 21 Vt. 456; State v. Parker, 26 Vt. 357; Smith v. Jaynesville, 26 Wis. 291; State v. Noyes, 10 Fost. [N. H.] 279; Hill v. Mayor, 72 Ga. 314; Caldwell v. Barnett, 73 Ga. 604; St. Louis v. Alexander, 23 Mo. 483; State ex rel. v. Wilcox, 45 Mo. 458; Township Organization Law, 55 Mo. 295; State v. Winkelmeier, 35 Mo. 103; State ex rel. v. Pennock, 37 Mo. 270.

Stephen Peery, E. M. Harber and J. H. Shanklin for respondent.

(1) The act in question is not a general law of the state, but in effect it is local and within the limitations of legislative power prescribed by our constitution. Const., art. 4, sec 53. (2) No local law can be enacted when a general law can be made applicable, and whether a general law could have been made applicable, is a judicial question, and is not left to legislative judgment or discretion. Const., art. 4, sec. 53. (3) There can be no question that a general law could have been made applicable to the subject-matter of this act. (4) If this law has any binding force in the counties or cities where a majority vote "against the sale of intoxicating liquors," it has such force locally by the repeal or partial repeal of several general statutes, and is, therefore, expressly prohibited by the last paragraph of the section of the constitution referred to, which says, "Nor shall the General Assembly indirectly enact such special or local law by the partial repeal of a general law." (5) The enactment, if a law, is either general or local and special. A general law or act is defined to be, "An act of the legislature which regards the whole community; a universal rule; of which the courts of law are bound to take notice judicially and ex officio." 1 Burrill's Law Dictionary, 681; 1 Blackstone's Com., 85-86. This act has no such general application. (6) The act adds new sections to our criminal code -- declares new offences and prescribes new and harsher punishments, which can never be imposed, except in those counties or cities of over twenty-five hundred inhabitants, where a majority of the qualified voters vote "against the sale of intoxicating liquors." Acts 1887, pp. 181-2, secs. 6 and 9. We understand the rule to be that a law declaring an offence or providing a punishment, or repealing an existing law which depends for its vital force upon the consent or approval of any person or body of persons, is clearly unconstitutional. City v. Alexander, 23 Mo. 514. (7) The act necessarily repeals or suspends existing laws, and such repeal or suspension is limited to those counties or cities where a majority of the qualified voters vote "against the sale of intoxicating liquors." (8) While it may be admitted that repeals by implication are not favored by the law, and that a later statute, which is general and affirmative does not repeal a former one which is particular, unless negative words are used, or unless the two acts are irreconcilably inconsistent, yet we apprehend that no one will assert that the act under examination, if it has any binding force in those counties and cities, voting "against the sale," etc., does not repeal or suspend within the county or city so voting, the dram-shop law, commonly called the Downing law, and the law in respect to merchants, as well as all laws affixing penalties for the sale of intoxicating liquors, for this act is irreconcilably inconsistent with them all. (9) The Downing law and the law in relation to merchants' license are in force in Chariton county -- they are repealed or suspended and not in force in Daviess. By what power was this repeal or suspension effected? Certainly not by a general statute passed by the General Assembly. The qualified voters of Daviess county have accomplished the work of repeal, and it but remains to determine whether they had the constitutional power to do so. (10) The provisions of the act and the manner provided for putting it in force, constitute a delegation of legislative power to the qualified voters of the counties and cities to whom it may be referred by petition. This examination does not involve the principle of local option, which has been a...