State v. Campbell

• Decision Date: 24 November 1908
• Citation: 113 S.W. 1081,214 Mo. 362
• Parties: STATE v. CAMPBELL.
• Court: Missouri Supreme Court

113 S.W. 1081

214 Mo. 362

STATE v. CAMPBELL.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

COURTS (§ 231)—APPELLATE JURISDICTION— CONSTITUTIONAL QUESTION — DEBATABLE QUESTION.

The Supreme Court will not take jurisdiction on the ground that a constitutional question is involved, though a statute, the constitutionality of which had prior to the appeal been finally adjudicated in numerous other cases, is attacked as unconstitutional.

Appeal from Circuit Court, Dallas County; Argus Cox, Judge.

C. H. Campbell was convicted, and appeals. Transferred to Court of Appeals.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the Dallas county circuit court for a violation of what is commonly known as the "Local Option Law." The defendant was charged in the indictment with selling one gallon of brandy, in the month of February, 1907, in violation of the local option law, which it was alleged had been adopted in that county. The defendant was duly arraigned, and entered a plea of not guilty, and on October 8, 1907, was put upon his trial, which resulted in a verdict of guilty, with punishment assessed at a fine of $300. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. An appeal was prayed for and granted to this court upon the theory that a constitutional question was involved. At the trial there was evidence offered on both sides by the respective parties to this proceeding. We deem it unnecessary, with the views we entertain as to the jurisdiction of this court to determine this cause, to set out in detail any of the testimony introduced upon the trial. It is sufficient to say that the principal contest in the trial of the cause was as to the adoption of the local option law; that is to say, as to whether or not the records, notices of election, and proof of publication introduced concerning such election were sufficient to give it vitality and force. This is a sufficient indication of the nature and character of the cause disclosed by the record.

J. W. Farris, for appellant. Herbert S. Hadley, Atty. Gen., and Frank Blake, Asst. Atty. Gen., for the State.

FOX, P. J. (after stating the facts as above).

The record before us in this cause discloses that the constitutionality of the local option law was assailed, and by reason of this fact it is sought to require this court to take jurisdiction of this cause and finally determine it. The constitutionality of the local option law long prior to the date of the appeal in the case at bar had been settled by a long line of decisions by this court. State v. Pond, 93 Mo. 606, 6 S. W. 469; Ex parte Swann, 96 Mo. 44, 9 S. W. 10; State v. Handler, 178 Mo. 38, 76 S. W. 984; Ex parte Handler, 176 Mo. 383, 75 S. W. 920; State v. Dugan, 110 Mo. 138, 19 S. W. 195; State v. Watts, 111 Mo. 553, 20 S. W. 237; State v. Searcy, 111 Mo. 236, 20 S. W. 186.

Confronted with this long line of decisions in which the constitutionality of the local option law has been exhaustively treated and finally settled, will this court take jurisdiction of the case at bar, the appeal having been taken long subsequent to the adjudications herein indicated? In the very recent case of Dickey v. Holmes et al., 208 Mo. 664, 106 S. W. 511, the appeal was granted to this court, and it was sought to have this court retain jurisdiction by reason of a constitutional question being involved. Judge Burgess, in a very exhaustive opinion, reviewed all of the authorities applicable to the proposition now confronting us. The constitutional question raised in that case had, previous to the appeal, been finally adjudicated in numerous other cases, and this court declined to take jurisdiction of the same. It was pointed out in the discussion of the proposition that there were some cases which held that, when a constitutional question has once been decided in a case, it can be raised in a subsequent case, and when so raised in the trial court it is so far in the case as to direct the course of the appeal to the Supreme Court. Judge Burgess, in commenting upon those cases, said that: "This is not an ironclad rule to which there are no exceptions. In the very nature of things, the constitutional question involved must be a live one, not expressly foreclosed by prior decisions of this court, otherwise no such question could ever be settled, no matter how often adjudicated by this court."

In Gabbert v. Railroad, 171 Mo. 84, 70 S. W. 891, it was ruled that the amendment to the Constitution allowing nine jurors to return a verdict was legally adopted and was constitutional, and this court has uniformly since declined and refused to consider cases where the appeal was taken solely on the ground of the alleged unconstitutionality of that amendment, except where the appeal was taken prior to that decision, December 24, 1902.

In Murray v. Railroad, 176 Mo. 183, 75 S. W. 611, this court retained jurisdiction solely upon the ground that the appeal was taken prior to the decision in Gabbert v. Railroad, supra. The same rule was announced by this court in banc in Tandy v. Transit Company, 178 Mo. 240, 77 S. W. 994, and by division 1 of this court in Portwright v. Railroad, 183 Mo. 72, 81 S. W. 1091.

In Lee v. Jones, 181 Mo. 291, 79 S. W. 927, 103 Am. St. Rep. 596, there was a verdict for the plaintiff for $1,500 upon which there was a judgment rendered, and the defendant appea...