State v. Burgdoerfer

• Decision Date: 16 November 1891
• Citation: 17 S.W. 646,107 Mo. 1
• Parties: The State, Plaintiff in Error, v. Burgdoerfer
• Court: Missouri Supreme Court

17 S.W. 646

107 Mo. 1

The State, Plaintiff in Error, v. Burgdoerfer

Supreme Court of Missouri, Second Division

November 16, 1891

Error to St. Louis Court of Criminal Correction. Hon. James R Claiborne, Judge.

Reversed and remanded.

C. H Krum on motion to dismiss writ of error.

The motion to dismiss the writ of error should be sustained. (1) By the terms of the statute creating the St. Louis court of criminal correction, as amended March 5, 1869, a writ of erro can only be sued out by a defendant, and such writ will not lie in behalf of the state. Sess. Acts, 1869, sec. 26, p 198. The statute in force at the time of the creation of the court of criminal correction, in regard to writs of error in criminal cases, was section 1, chapter 215, General Statutes, 1865. In State v. Newkirk, 49 Mo. 472, followed in State v. Peck, 51 Mo. 111, and in State v. Cunningham, 51 Mo. 479, it was held that, by virtue of the foregoing statute, a writ of error would lie in behalf of the state in cases where there had not been a trial and acquittal, and, therefore, in a case where a judgment had gone against the state on motion to quash. But, in State v. Copeland, 65 Mo. 497, followed by State v. Cutter, 65 Mo. 503; State v. Hamilton, 65 Mo. 667, and State v. Cox, 67 Mo. 46, it was held that the question involved in State v. Peck and State v. Newkirk was "but lightly considered," and that the statute did not receive a proper construction. The earlier cases were, therefore, expressly and in terms reversed, and the doctrine established that, under the statutes as they then existed, a writ of error would not lie in behalf of the state under any circumstances in criminal cases. Therefore, under the law creating the St. Louis court of criminal correction, the right to an appeal or a writ of error is expressly limited and reserved to the defendant. None is granted to the state in any event. As the law creating that court is a special law and has never in terms been amended, its limited provisions as to appeals and writs of error must be held to override the general provisions of the code of criminal procedure, and hence, by reason of the exclusion of the special act, the most comprehensive enactment of the general law will not apply. State v. Clark, 54 Mo. 17. Especially must such be the rule of construction, when it is considered that when the special law creating the court of criminal correction was enacted, with its limitations as to appeals, the general law was in force, under which, from ordinary criminal courts of general jurisdiction, the state might appeal, under certain specified circumstances. R. S. 1865, ch. 215, secs. 13, 14. (2) But, if the view taken in the foregoing point is too narrow, so that recourse must nevertheless be had to the general provisions of the criminal code, then the writ of error must be dismissed, because the record shows that the judgment rendered below was not based upon any insufficiency of the information, either in substance or in form. It is the settled rule in criminal cases, that an appeal can be taken by the state only where it is allowed by statute. State v. Copeland, 65 Mo. 479; State v. Bollinger, 69 Mo. 577; State v. Risley, 72 Mo. 609. The same rule governs writs of error. State v. Heisserer, 83 Mo. 692. (3) Under Revised Statutes, sections 4289, 4290, the right of the state to prosecute an appeal is limited to those cases where the indictment has been adjudged to be insufficient either on motion to quash, or demurrer, or motion in arrest of judgment, because of defective indictment. It does not appear, nor is it claimed, that the indictment on which the state asks a judgment is insufficient either in form or in substance, but, on the contrary, its sufficiency to support a judgment is admitted. As no review could be had on appeal, none can be had on writ of error. R. S. 1889, sec. 4292; State v. Heisserer, 83 Mo. 692; State v. Bollinger, 69 Mo. 577.

John M. Wood, Attorney General, Bernard Dierkes, Prosecuting Attorney, Chas. P. & J. D. Johnson, Thomas B. Harvey, Chas. T. Noland and Valle Reyburn for the State.

(1) In all cases the courts presume that acts of the legislature are constitutional. The burden is upon him who alleges the contrary to prove it beyond a reasonable doubt. State v. Addington, 77 Mo. 110; State ex rel. v. Laughlin, 75 Mo. 147; State ex rel. v. Ransom, 73 Mo. 78; County Court v. Griswold, 58 Mo. 175. (2) Courts cannot declare an act of the legislature void, however unjust or impolitic it may be, unless it clearly conflicts with specific provision of the constitution, and unless its unconstitutionality appears beyond a reasonable doubt. In re Burris, 66 Mo. 442; State v. Abel, 65 Mo. 357; Ewing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396. (3) The legislature had the authority, under the police power of the state, to enact laws against any particular form of gambling, because any and all gambling, in every form, is destructive of good morals, and against the general welfare of the public. City of St. Louis v. Fitz, 53 Mo. 582; Cooley, Const. Lim. [6 Ed.] 704. (4) In determining whether a title clearly expresses the subject of an act of the legislature, the court should be guided by several well-settled rules of law, to-wit: First. The act is presumed to be constitutional, and that presumption continues until the court is convinced beyond a reasonable doubt that it violates some mandatory provision of the constitution. State ex rel. v. Laughlin, 75 Mo. 147; State ex rel. v. Railroad, 92 Mo. 137; State v. Able, 65 Mo. 362; State v. Hope, 100 Mo. 347; State ex rel. v. Pond, 93 Mo. 606; Kelly v. Meeks, 87 Mo. 396; Cooley, Const. Lim. [6 Ed.] 216; State v. Railroad, 48 Mo. 468; In re Burris, 66 Mo. 442. Second. Words are to be construed according to their usual and ordinary meaning, and, if two constructions are permissible, one of which will sustain the law and the other render it invalid, courts will always adopt that construction which will uphold the law. Courts always construe a law most favorably to its life and purpose. State ex rel. v. Finn, 8 Mo.App. 341; State v. New Madrid, 51 Mo. 82; Phillips v. Railroad, 86 Mo. 540; State v. Leffingwell, 54 Mo. 458 (as to definition of words, how to interpret them); Henry & Coatsworth Co. v. Eans, 97 Mo. 47; Cooley, Const. Lim. 218. Third. "The title of a bill is sufficient if it fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated." The legislature may select its own language and may use few or many words. "It was not intended that the substance of the act should be embraced in the title, but that the subject should be stated in general terms, not specifically." In re Burris, 66 Mo. 442; State ex rel. v. Miller, 100 Mo. 445; St. Louis v. Tiefel, 42 Mo. 588; Ewing v. Hoblitzelle, 85 Mo. 64; Attorney General v. Ransom, 73 Mo. 78; Attorney General v. Mead, 71 Mo. 266; St. Louis City v. Green, 7 Mo.App. 468, affirmed in 70 Mo. 562; Luther v. Saylor, 8 Mo.App. 424; Jonesboro City v. Railroad, 110 U.S. 199; Cooley, Const. Lim. [6 Ed.] 172. (5) With the wisdom, expediency or policy of an act of the legislature courts have nothing to do. The responsibility for the act rests upon the legislature. State ex rel. v. Pond, 93 Mo. 635; County Court v. Griswold, 58 Mo. 192; Hamilton v. County Court, 15 Mo. 3; City of St. Louis v. Fitz, 53 Mo. 582; Cooley, Const. Lim. [6 Ed.] 197, and cases cited; Lake View v. Cemetery, 70 Ill. 194; Cearfoss v. State, 44 Md. 403. (6) Gambling and the keeping of a gambling house, in the form of book-making, are not among the rights, privileges and immunities which the federal constitution says shall not be abridged. And the act, being uniform in its application, operating upon all alike who come within its provisions, does not deny defendant the equal protection of the laws. Barbier v. Connolly, 113 U.S. 27; Missouri v. Lewis, 101 U.S. 22; State v. Fisher, 52 Mo. 174; Cooley, Const. Lim. 14, 489; Slaughter House Cases, 16 Wall. 36; Hayes v. Missouri, 120 U.S. 68. (7) The act in question does not by inference permit pool-selling on events occurring in Missouri; it neither forbids nor permits such pool-selling as to adults; it simply does not refer to it at all, but entirely prohibits gambling with minors.

OPINION

Thomas, J.

The assistant prosecuting attorney of the St. Louis court of criminal correction filed an information in that court on the twenty-sixth day of June, 1891, by which defendant was charged with keeping a pool-room and registering bets in violation of the act of the general assembly of this state, approved April 1, 1891, entitled, "An act to prohibit book-making and pool-selling." Sess. Acts, 1891, p. 122.

Defendant being taken before the court, on proper process, filed a motion to quash the information upon the grounds: First. Because the act upon which the information is based is unconstitutional, in that it violates section 28 of article 4 of the constitution of Missouri. Second. Because the act is unconstitutional, in that it violates section 4 of the bill of rights of the constitution of Missouri, and is against the law of the land.

The motion to quash was sustained by the court, on the ground first above indicated, and the state sued out the present writ of error. Defendant filed a motion in this court to dismiss the writ of error on the following grounds First. That, under the statute creating the court of criminal correction of the city of St. Louis, a writ of error will not lie in behalf of the state to review any judgment against the state in any case cognizable by said court of criminal correction. Second. That, under the code of criminal procedure, a writ of error will not lie in behalf of the state to review a judgment against the state...