State, on Inf. of Wallach v. Beckman

• Decision Date: 05 March 1945
• Docket Number: 39223
• Citation: 185 S.W.2d 810,353 Mo. 1015
• Parties: State of Missouri, at the Information of Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri, v. Bernard V. Beckman, Appellant
• Court: Missouri Supreme Court

185 S.W.2d 810

353 Mo. 1015

State of Missouri, at the Information of Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri, v. Bernard V. Beckman, Appellant

No. 39223

Supreme Court of Missouri

March 5, 1945

Appeal from Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Affirmed.

Louis L. Hicks for appellant.

(1) An information in the nature of a quo warranto is a civil action whether under the statute or independent of statute. State ex rel. v. Lawrence, 38 Mo. 535; State ex inf v. Lbr. Co., 260 Mo. 212, 169 S.W. 145. (2) Relator in quo warranto must have an interest in the subject of the prosecution peculiar to himself as distinguished from that of the general public and leave of court must be obtained for the filing of the information or the institution of the suit. State ex rel. Pickett v. Cairns, 305 Mo. 333; State ex inf. v. Hefferman, 243 Mo. 442, 148 S.W. 90. (3) The circuit court had no jurisdiction to hear this case because the prosecuting attorney of St. Louis County, Missouri, had no authority to file an information in the nature of a quo warranto. Section 1782, R.S. 1939; Sec. 12991, R.S. 1939. (4) A statute limiting a thing to be done in particular form includes in itself a negative, namely, that it shall not be done otherwise. State ex rel. Barlow v. Holtcamp, 14 S.W.2d 646; 25 C.J. 220, note 16 (c). (5) Respondent Beckman, was elected Justice of the Peace of University City Clayton Township, St. Louis County, Missouri, by virtue of Section 2522, R.S. 1939, which has never been repealed or amended. Sec. 2530, R.S. 1939; Mo. Constitution, Art. XIII, Sec. 5. (6) The functions of a justice do not terminate until his successor is elected and qualified. Knight v. Mersman, 66 Mo.App. 219; State ex rel. Atty. Genl. v. Ransom, 73 Mo. l.c. 91. (7) Judgment of the county court establishing additional justices in Clayton Township in the City of University City of thirty thousand inhabitants cannot be repealed by Legislature as the court acted judicially in establishing this office precluding an attack in quo warranto except for fraud. State v. Tolliver, 315 Mo. 746, 287 S.W. 312; State ex rel. v. McElroy, 309 Mo. 595, 274 S.W. 749; Mo. Constitution, Art. VI, Sec. 36; Bingham v. Kollmar, 256 Mo. 573. (8) The Justice of the Peace Court is created by the Constitution and the Legislature can only regulate the "powers, duties and duration in office." Mo. Constitution, Art. VI, Sec. 37. (9) In all other cases where general law can be made applicable in any case is hereby declared a judicial question and as such shall be judicially determined without regard to any legislative assertion on that subject. Mo. Constitution, Art. IV, Sec. 53, Par. 32. In this case the general law used all over Missouri, except in Kansas City and St. Louis, is expressed in Sec. 2522, R.S. 1939. (10) Judgment and decree assume that Sec. 2572, R.S. 1939, also Sec. 2572, Laws 1941, applied to office of respondent. These acts do not apply for three reasons: (a) Both acts of the Legislature were in violation of the Missouri Constitution, Sec. 28, Art. 4, by invalidities made to appear beyond a reasonable doubt on their face. (b) They did not apply to Clayton Township, which had only 61,309 population in the 1940 U.S. Census. (c) The Act of 1941, under which the suit was brought, was repealed by the Legislature on July 16, 1943, and the judgment of ouster was rendered on May 15, 1944. (11) State of Missouri is estopped from complaining as to the validity of the office of respondent when the evidence showed that the State of Missouri, at the relation of the Attorney General, was using respondent's justice court to file over forty cases at the time that respondent was served with the information in the nature of quo warranto. (12) The title and subject matter of the original act, on which respondent relies, had already been judicially determined by this court, and did not apply to Clayton Township, which had only 61,309 inhabitants. Forgrave v. Buchanan County, 282 Mo. l.c. 606, 222 S.W. 755. (13) The motion to strike relator's reply, "Relator states that the subject matter of the bill was 'Justices' and that the subject was clearly expressed in the title of said act," was overruled and exception saved on the ground that this statement was a conclusion of law and an erroneous statement as to the law. Laws 1915, p. 324; R.S. 1939, Art. VIII, Chap. 11; Laws 1939, p. 340; Laws 1941, p. 417 (repealed before judgment rendered in this case by the circuit court); Laws 1943, p. 623 (ex post facto); State ex rel. Greene County v. Gideon, 210 S.W. 360. (14) The judgment and decree of the court is in direct violation of the Missouri Constitution and the United States Constitution. It denies to respondent due process of law and the equal protection of the laws. U.S. Constitution, Amend. XIV, Sec. 1; Sec. 28, Art. 4, Mo. Constitution. (15) It is based on an ex post facto law passed six months after information was filed (Laws 1943, p. 623). U.S. Constitution, Sec. 10, Art. I; Mo. Constitution, Sec. 15, Art. II. (16) It is the power and duty of the judiciary to declare null and void a statutory enactment which conflicts with the Constitution. Marbury v. Madison, 1 Cranch, 2 L.Ed. 60; State ex rel. Elsas v. Mo. W.C. Comm., 318 Mo. 1004, 2 S.W.2d 796, 251 Mo. 146, 158 S.W. 29; State v. McBride, 4 Mo. 303; State ex rel. Donnell v. Osburn, 347 Mo. 469, 147 S.W.2d 1065. (17) If Sec. 2572, R.S. 1939, is void, then respondent has a right to hold office as there was a general election in 1942 and respondent received 6 votes at a "time when and place where" the Legislature intended an election to be held for Justice of the Peace for City of University City of Clayton Township, and was therefore duly elected; relying on Sec. 2522, R.S. 1939, the general law of the State. All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. Article II, Sec. 9, Mo. Constitution. (18) Names other than regular party nominee may be written in. Bradley v. Cox, 197 S.W. 88, 271 Mo. 438.

Stanley Wallach, Prosecuting Attorney of St. Louis County, and Roy McKittrick, Attorney General, for respondent.

(1) The rule in this State which has been consistently followed by our Supreme Court is that in case of doubt as to whether subject of statute is clearly expressed in title, within requirement of Constitution, Article IV, Section 28, doubt is resolved in favor of validity of act, if the challenged legislation is germane to the title and relates either directly or indirectly to the main subject of the act. State ex rel. Lorantos, etc., v. Terte, 23 S.W.2d 120; State v. Miller, 45 Mo. 496; State ex rel v. Mead, 71 Mo. 266; De Both v. Coal & Mining Co., 141 Mo. 497, 42 S.W. 1081; St. Louis v. Tiefel, 42 Mo. 578; State ex rel. v. Slover, 134 Mo. 10, 31 S.W. 1054, 34 S.W. 1102; State ex inf. v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S.W. 595, 45 L.R.A. 363; State v. Doerring, 194 Mo. 398, 92 S.W. 489. (2) The underlying purpose of the constitutional provision was to aid the lawmakers so that they might be apprised of the general contents of a bill from the language of the title. State v. Burgdoerfer, 107 Mo. 30, 17 S.W. 654; 1 Cooley on Constitutional Limitations (8 Ed.), pp. 295, 296. (3) The provisions of Section 28, Article IV of the Constitution relating to the subject matter and title of an act should be construed liberally to uphold proper legislation, all parts of which are reasonably germane to each other. Bergman v. Ry., 88 Mo. 678, 1 S.W. 384; State v. Miller, 45 Mo. 495; State ex rel. v. Thomas, 313 Mo. 160, 282 S.W. 34; State ex rel. v. Buckner, 38 Mo. 390, 272 S.W. 940; Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369; State ex rel. v. Becker, 329 Mo. 1041, 47 S.W.2d 781; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543. (4) The constitutional provision "does not forbid the inclusion in one bill under one general title of subjects naturally and reasonably related to each other." Burge v. Ry., 244 Mo. 76, 148 S.W. 925; State ex rel. v. Danuser, 319 Mo. 799, 6 S.W.2d 907; Levee Dist. v. Dorroh, 316 Mo. 398, 289 S.W. 925; Bottling Co. v. Mosby, 289 Mo. 462, 233 S.W. 446; Booth v. Scott, 276 Mo. 1, 205 S.W. 508. (5) Respondent was an unsuccessful candidate for the office of Justice of the Peace, Clayton Township, in the primary election in August, 1942, and was not nominated to said office. Not being a nominee for that office at the November election, 1942, respondent was in the position of one not interested in the subject of the statute and could not be injuriously affected thereby and could not, therefore, attack its provisions. State v. Kramer, 222 S.W. 822. (6) Respondent having no constitutional rights denied by statute involved could not raise constitutional questions in respect thereto. Thompson & Co. v. Connan-Gideon, etc., 19 S.W.2d 1049, 323 Mo. 953; State v. Williams, 266 S.W. 484; State ex rel. Abbott v. Adcock, 124 S.W. 1100, 225 Mo. 335. (7) Where the constitutionality of legislation is challenged, it will be presumed to be constitutional till the contrary plainly appears. In cases of doubt every possible presumption, not directly and clearly inconsistent with the language and subject matter, is to be made in favor of the statute. State ex rel. Harris v. Laughlin, 75 Mo. 158. (8) The Prosecuting Attorney of St. Louis County had authority to file an information in the nature of a quo warranto. Secs. 12942, 12991, 12992, R.S. 1939. (9) Laws, whether state or municipal, are presumed to have been passed in a spirit of justice and for the welfare of the community and should be interpreted, if possible, to further that purpose. Stark v. General Co., 223 S.W. 89, 283 Mo. 396; ...