State ex rel. McNary v. Stussie

• Decision Date: 12 November 1974
• Docket Number: No. 58785,58785
• Parties: STATE of Missouri ex rel. Gene McNARY, Prosecuting Attorney of the County of St. Louis, State of Missouri, Relator, v. The Honorable Harry J. STUSSIE, Judge of the Circuit Court, St. Louis County, State of Missouri, Respondent, and John C. Danforth, Attorney General, State of Missouri, Intervenor.
• Court: Missouri Supreme Court

Page 630

518 S.W.2d 630

STATE of Missouri ex rel. Gene McNARY, Prosecuting Attorney of the County of St. Louis, State of Missouri, Relator, v. The Honorable Harry J. STUSSIE, Judge of the Circuit Court St. Louis County, State of Missouri, Respondent and John C. Danforth, Attorney General, State of Missouri, Intervenor.

No. 58785.

Supreme Court of Missouri, En Banc.

Nov. 12, 1974.

Motion for Clarification Overruled Nov. 29, 1974.

Ann Frances Carpini, Steven H. Goldman, Asst. Pros. Attys., Clayton, for relator.

George R. Gerhard, St. Louis, for respondent.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for intervenor.

FINCH, Judge.

This is an original proceeding in mandamus to compel respondent to proceed with the trial of a criminal case without requiring that eighteen to twenty year olds be summoned as jurors. At issue is whether Act 70, a statute adopted by the General Assembly in 1974, had the effect of amending § 494.010 ¹ so as to reduce the minimum age for jurors from twenty-one to eighteen. We make peremptory the alternative writ of mandamus heretofore issued.

The statutory provision specifying qualifications for jurors is § 494.010, which provides as follows:

'Every juror, grand or petit, shall be a citizen of the state, a resident of the county or of a city not within a county for which the jury may be impaneled; sober and intelligent, of good reputation, over twenty-one years of age and otherwise qualified.'

Act 70, Senate Bill 438, adopted by the 77th General Assembly, ² which allegedly reduced the minimum age in § 494.010 to eighteen, reads thus:

'SECTION 1. The age of majority in this state is eighteen years, and all persons having attained that age are entitled to all the privileges, rights and immunities, and subject to all the obligations, liabilities and responsibilities of adulthood and are not subject to any of the disabilities of infancy.

2. This act does not apply to any written instrument, contract, deed or trust indenture, conveyance, note or bank account made or executed before this Act becomes effective, nor shall it apply to or affect the rule of law known as the Rule Against Perpetuities or any conveyance made under the Missouri Uniform Gifts to Minors Act.

3. After the effective date of this act, a minor is a person who has not attained the age of eighteen years and whenever the term 'twenty-one years of age' is used as a limiting or qualifying factor it shall be deemed to mean 'eighteen years of age', and the revisor of statutes is hereby authorized to make the appropriate changes in the Revised Statutes of Missouri as they are revised, reenacted or reprinted.

4. The provisions of this act shall not apply so as to affect, change, or modify any laws of this state pertaining to alcoholic beverages.'

The St. Louis County Board of Jury Commissioners utilizes the list of registered voters in the County as the jury list from which the names of prospective jurors are drawn. The list is computerized, and a master jury list is prepared annually by a computer program designed to select prospective jurors at random. Prior to the adoption of the 26th Amendment to the Constitution of the United States, the registration list contained only persons at least twenty-one years old because the age of qualified voters in Missouri was twenty-one. However, after ratification of that Amendment the list of registered voters included persons within the eighteen to twenty age range. In view of that development the computer was programmed so that in drawing names of prospective jurors, those who had not attained their twenty-first birthday would be rejected (to comply with § 494.010). In addition, when notices were mailed to prospective jurors, they contained the statement 'You Must Be At Least 21 Years Old to Serve. If You Are Under 21 Years of Age, Indicate on Card and Return.' As a result, no persons in the eighteen to twenty year range were summoned for jury duty.

The case of State of Missouri v. Dale Fredrick Owens was set for trial before respondent on the morning of August 13, 1974, the date on which Act 70 became effective. When the case was called, counsel for defendant Owens requested a continuance on the ground that there were no eighteen to twenty year olds on the jury array. Respondent heard evidence in connection with that request, after which he took the matter under advisement. The next day he announced that he would grant a continuance on the basis that Act 70 made persons eighteen to twenty years of age eligible to serve as jurors and on the further ground that absence of such individuals on the array would constitute a denial of due process to defendant Owens. However, respondent advised that he would not enter the order until August 26 in order to permit the prosecuting attorney, who contended that Act 70 was unconstitutional, to take any action deemed appropriate. Thereafter, on August 16, 1974, relator filed this proceeding.

At the outset, we consider whether mandamus is appropriate in this situation. We conclude that it is since it is clear that no adequate remedy through appeal was available to relator. Supreme Court Rule 28.04, V.A.M.R., provides that the state may appeal a criminal case prior to judgment only when an indictment is held insufficient and, of course, the state has no appeal from the acquittal of a defendant. Consequently, the State had no vehicle by means of an appeal to test respondent's decision that Act 70 is constitutional and that it requires that eighteen to twenty year olds be included on the list from which jurors are drawn. Mandamus is not usually granted to enforce performance of a discretionary function, absent an abuse of discretion, but the proposed continuance was not based on any exercise of discretion. Rather, respondent proposed to continue the case on the basis that Act 70 is valid and applicable, entitling Owens to have eighteen to twenty year olds on the array. If Act 70 is unconstitutional, respondent had no right to require that the jury include eighteen to twenty year olds as a condition to trying the case against defendant Owens. This presents a purely legal issue which can appropriately be decided in mandamus, particularly in a case such as this involving a matter of considerable public importance which may have substantial and widespread impact.

The first issue asserted by relator is that Act 70, and particularly § 3 thereof, is unconstitutional because it violates Art. III, § 28 of the Missouri Constitution, V.A.M.S. That section provides in part as follows:

'No act shall be amended by providing that words be stricken out or inserted, but the words to be striken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended.'

The foregoing section is substantially the same as Art. IV, § 34, Mo.Const. 1875 and Art. IV, § 25, Mo.Const. 1865.

The historical explanation for constitutional provisions of this type is given in Vol. I of Cooley's Constitutional Limitations (8th ed.), p. 314. After poining out that provisions of this type are found in the constitutions of numerous states, the text quotes from an opinion ³ written by Judge Cooley while a member of the Supreme Court of Michigan as follows "The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation."

Decisions by this court recognize that the purpose of these constitutional limitations on statutory amendment (Art. III, § 28 and its predecessors) is as stated by Judge Cooley. In State v. Chambers, 70 Mo. 625 (1879), the court considered an act which sought to amend a previously existing statute by striking the words 'assault, battery, affray, or other breach of the peace,' in certain lines of the existing statute and inserting therein as replacements the words 'a misdemeanor'. After so providing, the amended act then proceeded to set out the section of the previously existing statute as it would be after the amendment. The court held the amendatory act valid and then said this with reference to Art. IV, § 34 (the predecessor of Art. III, § 28) l.c. 628:

'* * * Section 3 of said act furnishes an illustration of what was intended to be forbidden by section 34, article 4 of the constitution. If said section had only contained the words 'Section 3 of said chapter 186 is hereby amended by striking out the words 'assault, battery, affray or other breach of the peace' in the third and fourth lines of said section, and inserting in lieu thereof the words 'a misdemeanor," the amendment would have been in clear violation of said constitutional provision. The object of the prohibition from making amendments in such a way was to prevent the laws from becoming involved in the confusion which would necessarily result from such legislation; and to prevent the inconvenience it would occasion of hunting through various books to find the act amended and then apply to it the amendatory act to ascertain what the law as amended was.'

In French v. Woodward, 58 Mo. 66 (1874), the court considered a statute which undertook to amend a previous act of the General Assembly incorporating the City of Mexico, Missouri (including a subsequent act which amended the statute...