State v. Buckner

• Decision Date: 17 February 1925
• Docket Number: No. 25787.,25787.
• Citation: 272 S.W. 940
• Parties: STATE ex rel. GARVEY v. BUCKNER, Circuit Judge.
• Court: Missouri Supreme Court

272 S.W. 940

STATE ex rel. GARVEY v. BUCKNER, Circuit Judge.

No. 25787.

Supreme Court of Missouri, en Banc.

February 17, 1925.

Motion for Rehearing Overruled May 23, 1925.

Application by the State, on the relation of Ray B. Garvey, for a writ of prohibition against Thomas B. Buckner, Judge of the Circuit Court of Jackson County, Criminal Division C. Writ denied.

Charles M. Howell, Daniel V. Howell, C. P. Le Mire, E. M. Tipton, Joseph S. Brooks, and M. E. Casey, all of Kansas City, for relator.

J. C. Rosenberger and William S. Hogsett, both of Kansas City, for respondent.

ATWOOD, J.

This is an original proceeding in prohibition. The relator is Roy B. Garvey, who is defendant in the criminal case of the State of Missouri v. Roy B. Garvey, pending in division No. 1 of the Circuit court of Jackson county, Mo. The respondent is judge of division No. 1 of said circuit court. Relator stands charged with first degree murder, alleged to have been committed on September 6, 1922. He seeks to prohibit respondent from entertaining jurisdiction and proceeding with the trial of said cause.

Relator was first proceeded against by indictment filed September 27, 1922. After numerous continuances, resettings, and one change of venue, the case was dismissed on February 18, 1924. On May 28, 1924, the prosecuting attorney filed an information against relator, charging him with the same crime, upon which information defendant was arraigned, pleaded not guilty, and the case was set for trial June 16, 1924, thereafter set for July 28, 1924, thereafter continued on defendant's application to September 8, 1924, thereafter reset for September 15, 1924, when relator filed application for change of venue from Judge Austin's division, which was division No. 9 and designated as criminal division A, which change of venue was granted, and the case transferred to Judge Buckner's division, which was division No. 1, and designated as criminal division C. On September 16, 1924, relator filed application for continuance, which was overruled, and the case set down for trial on the 22d day of September, 1924. On September 18, 1924, relator filed his petition here for writ of prohibition, and assigned the following grounds:

(1) That Act March 11, 1921, is unconstitutional and void, because (a) it contains more than one subject, in violation of section 28, art. 4 of the Constitution of Missouri; (b) no notice of intention to apply for the passage of said bill Was published, in violation of section 54, art. 4 of said Constitution.

(2) That the transfer of the case by division No. 9 to division No. 1 was in violation of court rules 46 and 48, pertaining to criminal causes, and therefore void.

(3) That the rule adopted by circuit court on January 1, 1923, and the said rule thereafter adopted, are null and void, and in direct conflict with said act of the Legislature.

(4) That relator's application for continuance, filed on September 16, 1924, was improperly overruled.

Preliminary writ was issued. Respondent's return denies the existence of the grounds specified and relator's right to the relief prayed, and sets up new matter mainly relating to additional court rules or orders. After issue joined by relator's reply, Hon. William C. Lucas, was appointed by this court as special commissioner, who took and returned testimony on issues of fact. Relator's claims will be considered in the order pleaded.

He first says that Act March 11, 1921, is unconstitutional and void because it contains more than one subject, in violation of section 28, art. 4 of the Constitution, which provides that—

"No bill * * * shall contain more than one subject, which shall be clearly expressed in its title."

It is uniformly held that this provision should be liberally construed, that the title need only indicate the general contents of the act, and, if the contents of the act fairly, relate to and have a natural connection with the subject expressed in the title, they fall within the title. State v. Mullinix, 301 Mo. 385, 257 S. W. 121; Ex parte Harvey Karnstrom, 297 Mo. 384, 249 S. W. 595; State ex rel. v. Hackmann, 292 Mo. 27, 237 S. W. 742; State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S. W. 806; Coffey v. Carthage, 200 Mo. 616, 98 S. W. 562; 36 Cyc. 1017, 1028.

The act in question consists of eleven sections, found on pages 220-222 of the Laws of Missouri 1921, and the title reads as follows:

"An act in relation to the administration of justice in Jackson county; abolishing the criminal court of Jackson county and the office of judges and clerk thereof, abolishing the office of marshal of said county, and vesting the jurisdiction of said criminal court in the circuit court of Jackson county, and providing for the performance of the duties now performed by said clerk of the criminal court and said marshal of Jackson county."

This act relates to the "administration of justice in Jackson county." The act deals with this single, general subject. True, this subject is amplified, but it is singly and clearly expressed in the title. Every provision of the act fairly relates to, and has a natural connection with, the subject expressed in the title, and therefore falls within the title. There is no multiplicity. Moreover, the provisions enacted are all harmonious and compatible, and therefore not incongruous. Where the contents of the act are harmonious, and have a natural connection with one subject, singly and clearly expressed in the title, it is of no consequence that the General Assembly may not have fully legislated on the subject, that some provisions of the act are not specifically named in the title, or that, by refinement of terminology, the minutiae of the act itself can be separately catalogued. This point is ruled against relator.

Relator further says that the act is a local or special law, in violation of section 53, att. 4 of the Constitution, which provides that the General Assembly shall not pass any local or special law in some thirty-two specified cases. This section has frequently been here for construction, and the unvaried holding is that legislation authorized by the Constitution cannot be regarded as local or special, although its application is purely local. It is also held that whether an act be local or special must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates, and, if it affects equally all persons who come within its operation, it cannot be local or special within the meaning of the Constitution. State ex rel. Judah v. Fort, 210 Mo. 512, 109 S. W. 737; State v. Etchman, 189 Mo. 648, 888. W. 643; State ex rel. v. Yancy, 123 Mo. 391, 27 S. W. 380; State ex rel. v. Hughes, 104 Mo. 459, 16 S. W. 489.

Section 22 of article 6 of the Constitution provides that the circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; section 24 of said article 6 provides that judicial circuits may be changed, enlarged, diminished, or abolished, from time to time, as public convenience may require; and section 4 of the schedule provides that all criminal courts, organized and existing under the laws of this state, and not specially provided for in this Constitution, shall continue to exist until otherwise provided by law. These provisions undoubtedly constitute an express grant to the Legislature of power to pass Act March 11, 1921, and, the act having been passed in pursuance of such express grant of authority in the organic law, it cannot be regarded as local or special. Furthermore, the law affects all persons alike who come within its operation, and hence it is not local or special. Every citizen of the state is interested in the operation of this law, because he does not know in what hour he may need its protection.

Having held that Act March 11, 1921, is not local or special, it follows that relator's contention that the act is in violation of section 54, art. 4, of the Constitution, which requires that notice of intention to apply for the passage of a local or special bill must be published, is also without merit.

Relator also says that the transfer of the case by division No. 9 to division No. 1 was in violation of court rules 46 and 48, pertaining to criminal cases, and therefore void. In his return, respondent pleads rules or orders subsequently made by the court en banc for the apportionment and dispatch of its business, which he says should be considered and construed in connection with printed rules 46 and 48. In reply, relator says that, because these subsequent rules or orders had not all been spread on the clerk's permanent record when relator's petition was filed, they should not be considered in this proceeding.

Relator errs; failing to observe the sound distinction that exists between rules framed to guide and govern litigants, and rules or orders made to aid the court in the apportionment and dispatch of its business. Formal promulgation should precede the effective date of the former, but such need does not exist, nor does such legal requirement obtain, as to the latter. 15 Corpus Juris, 911-913. The latter class of court rules or orders, made for the more convenient dispatch of the court's business, is fully authorized by sections 7 and 10 of Act March 11, 1921, and the answer to relator's objection is well expressed under similar conditions in State ex rel. v. District Court, 49 Mont. 158, 141 P. 151:

"The question has been removed from the realm of doubt or uncertainty by positive statutory enactment. The members of the Legislature must have appreciated fully that the matter of distributing the business of a court between the judges...