State ex rel. Major v. Patterson

• Decision Date: 21 June 1910
• Docket Number: 1
• Citation: 129 S.W. 894,229 Mo. 364
• Parties: THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. JOSEPH M. PATTERSON et al
• Court: Missouri Supreme Court

129 S.W. 894

229 Mo. 364

THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. JOSEPH M. PATTERSON et al

No. 1

Supreme Court of Missouri

June 21, 1910

Record quashed.

Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for relator.

(1) (a) When the county court of Jackson county, under the direction of the Legislature, as contained in section 3805, R. S. 1899 divided Jackson county into eight justice of the peace districts, it discharged and exercised the authority confided to it by the Legislature. It created eight justice of the peace districts, the officers of which became constitutional officers. The county court is without jurisdiction or authority either to abolish any of the districts or to redistrict the county without further authority from the Legislature. Constitution, sec. 37, art. 6; R. S. 1899, sec 3805; State ex rel. v. Simmons, 35 Mo.App. 381; State ex rel. v. Mosman, 112 Mo.App. 540. (b) Section 37, art. 6 of the Constitution, provides that "in each county there shall be appointed or elected as many justices of the peace as the public good may require whose powers, duties and duration in office shall be regulated by law." Under this power and authority given by the Constitution, the Legislature exercised its will and established in Jackson county not to exceed eight justices of the peace. The county court, under the legislative will within the time named by the Legislature, to-wit, March 1, 1890, established the eight districts and these justices became constitutional officers. The establishment of the courts being a matter for the exercise of the legislative will, and the county court having complied with the exercise of such will and in the manner as provided, the matter became final and the county court had no further authority or jurisdiction. R. S. 1899, sec. 3805; State ex rel. v. Higgins, 125 Mo. 364. (c) The county court cannot, by changing township lines or consolidating townships as it attempted in May, 1910, give life to an exhausted authority or jurisdiction. This species of legerdemain cannot give it a jurisdiction it did not possess before the doing of such act. (2) (a) Certiorari brings up the record proper and is the proper procedure to review the records of the county court of Jackson county in redistricting both justices-of-the-peace and legislative districts. State ex rel. v. Reynolds, 190 Mo. 588; State ex rel. v. Henderson, 160 Mo. 190. (b) Appeals and review must be allowed by statute. The statutes have provided no review nor appeal in proceedings of this kind. Haynes v. Cass County, 135 Mo.App. 112. (c) The Supreme Court will act in any case where it is of unusual importance or affects the public interests generally, or the political division of the State. State ex rel. v. Wilson, 90 Mo.App. 154; State ex rel. v. Walbridge, 116 Mo. 656.

Scarritt, Scarritt & Jones and C. C. Madison for respondents.

(1) If section 3805, R. S. 1899, is construed to mean that the county court could exercise the authority therein given on or before the 1st day of March, 1890, and not thereafter, then it is void as being obnoxious to section 53, article 4, of the State Constitution. State ex rel. v. County Court, 89 Mo. 237; State ex rel. v. Herrmann, 75 Mo. 340. It is the duty, however, of the court to so construe a law, if possible, as to escape such a conclusion, and if it is susceptible of a construction that would render it valid, it is the duty of the court to give it such construction. State ex rel. v. Laughlin, 75 Mo. 147; Phillips v. Railroad, 86 Mo. 540; State v. Hope, 100 Mo. 347; Deal v. Mississippi County, 107 Mo. 464. This conclusion can be avoided by a sensible and reasonable construction of the act, that is, by giving full force and effect to the words "or that may hereafter contain," so that it would include Kaw township as it might thereafter exist, or any other township in the State which might thereafter come within the purview of the act. (2) The power granted by this section to the county courts is a legislative power, and as such must be held to be a continuing power, unless there is something in the law which clearly enacts to the contrary. Estes v. Owen, 90 Mo. 113; Smith v. Tobener, 32 Mo.App. 601; McCommach v. Parchin, 53 Mo. 33; Farrar v. St. Louis, 80 Mo. 379.

VALLIANT, J. Fox, C. J., Gantt and Graves, JJ., concur; Lamm, J., dissents; Burgess and Woodson, JJ., not sitting.

OPINION

In Banc.

Certiorari.

VALLIANT J. -- On the application of the Attorney-General a writ of certiorari issued to the respondents, judges composing the county court of Jackson county, commanding them to send a certified transcript of the record of that court containing its proceedings had at its February term, 1890, dividing Kaw township into eight justice-of-the-peace districts, and also its proceedings had at its May term, 1910, in reference to dividing Kaw township into six justice-of-the-peace districts.

In obedience to the writ, respondents have sent up the records called for, by which it appears that on the 24th day of February, 1890, the county court of Jackson county divided Kaw township into eight justice-of-the-peace districts, defining their metes and bounds, and that on May 3, 1910, the court made and entered of record an order dividing Kaw township into six justice-of-the-peace districts.

As if in response to the writ, respondents have also sent up transcripts of the record containing various other orders relating to the same subject at different periods and different terms of that court between the February term, 1890, and the May term, 1910, besides certain ordinances of the city council.

I. A motion is filed by the Attorney-General to strike out all that part of the return showing the proceedings of the court between the dates and terms last mentioned, and the other extraneous matter. That motion is sustained. There can be no return to a writ of certiorari except the record called for by the writ. In response to an alternative writ of mandamus or preliminary rule on an application for a writ of prohibition the respondent is called on to show cause why the writ should not issue, but not so in the case of a writ of certiorari. In such case the writ is peremptory from the first and the only duty that devolves on the court to which it is addressed is to send up the record called for, the validity of which when it comes is to be adjudged by what it shows on its face.

II. The question presented by the record before us is, did the county court of Jackson county have authority at its May term, 1910, to divide Kaw township into justice-of-the-peace districts?

The dividing of the State into political subdivisions, and the dividing of counties into districts for the election of officers called for by the law of the State, is legislative in its character, and, as such, devolves on the legislative department of the State government, and it cannot be exercised otherwise unless by express grant of power or delegation of authority. Under the provisions of section 3 of article 4 of our Constitution, the duty of dividing a county into representative districts, when it is entitled to more than one representative, is imposed on the county court, and under section 6 of article 4 the duty of dividing the county into senatorial districts, when it is entitled to more than one Senator, is devolved on the circuit court, but those are express constitutional grants of authority, without which those duties would devolve on the General Assembly, and they are granted in that article of the Constitution under the title "Legislative Department," showing that the framers of the Constitution understood it to be work legislative in its character. A full discussion of that feature of the case will be found in the opinion of this court by Judge Graves in the case of State ex rel. Attorney-General v. Patterson, decided at this term, and reported at page 373 of this Report.

But this case differs essentially from the case just mentioned because there is no constitutional authority conferred on the county court to divide a county into districts for the election of justices of the peace. All the authority that the county court has or ever had for dividing a township into justice-of-the-peace districts...