State v. Field

• Citation: 17 Mo. 529
• Parties: STATE, Plaintiff in Error, v. FIELD, Defendant in Error.
• Decision Date: 31 January 1853
• Court: Missouri Supreme Court

17 Mo. 529

STATE, Plaintiff in Error,

v.FIELD, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

1. In a general law affecting private rights, which takes effect by its terms, a clause authorizing the county courts to suspend it at pleasure in their several counties, is unconstitutional and void, and may be stricken out of the act. So, the thirty-third section of the act concerning roads, approved March 3, 1851, is void.

Error to Saline Circuit Court.

Gardenhire, (attorney general) for the State. The legislature organizes corporations and authorizes them to make by-laws for their government. So courts are organized and authorized to make rules for their government. What is the difference between these by-laws and rules of court, and the order of the Saline county court? Corporations make the law of streets and alleys; and why may not county courts make the law of roads?Hayden, for defendant in error. The court below properly quashed the indictment, for the reason that the act of 1851 repealed the act of 1845, which made the offence charged indictable. The order of the Saline county court, professing to suspend the operation of the act of 1851, was a nullity, because the legislature had no power to delegate such authority to that court. The order is in the nature of a legislative and not a judicial act. The constitution of our state assigns to the three branches of government their respective powers, and neither can delegate its powers, nor exercise powers confided to another. Rice v. Foster, 4 Harrington, 479. 6 Barr, 507.

GAMBLE, Judge, delivered the opinion of the court.

Field was indicted in the Circuit Court of Saline county for neglect of duty as a road overseer, under the sixty-sixth section of the act concerning roads and highways, R. C. 969. He moved to quash the indictment because the act of March 3, 1851, in the twenty-seventh section, (Sess. Acts, 279,) provided a different and inconsistent mode for the recovery of penalties, and therefore repealed the sections of the act in the Revised Code which imposed the penalties and provided for their recovery by indictment. To this it was replied, that the thirty-third section of the act of March 3d, 1851, provided that, “if the county court of any county should be of opinion, that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force, or the special acts on the subject of roads and highways in the several counties of this state, that might take effect and be in force after the 4th of July then next.” It was alleged that, under this section, the county court of Saline county made an order at the November term, 1851, suspending the operation of the act until the second Monday in June, 1852, and that the offense for which the defendant was indicted, was committed within the period for which the act was suspended. It was rejoined by the defendant, that the act, notwithstanding the order of the county court suspending its operation, continued in force, because the section of the act which authorized the county courts to make such order, was a delegation of legislative power to the county courts which was inconsistent with the constitution; and that, therefore, the section itself and the action of the county court of Saline county under it, were unconstitutional and void. Of this opinion was the Circuit Court, and the indictment was quashed, which decision the State now brings before this court for review and reversal.

1. Without a minute examination and recapitulation of the various provisions of the act of March 3d, 1851, it is sufficient to say, that it embraces very many of the provisions necessary to a road system. It provides the mode of laying out roads, taking relinquishments from the proprietors of lands, condemning such as the owners refuse to relinquish, and ascertaining and paying the damages thereby incurred; it designates the persons liable to work on roads, and provides for their being taxed, as well as for a tax upon property, in order to keep the roads in repair; it provides for the collection of the taxes and their disbursement, for the appointment of overseers and compelling them to serve, and for penalties to be incurred by them for neglect of duty, and for the recovery of such penalties by prescribed judicial proceedings.

On all the different points on which provision is made, it professes to be the declaration of the legislative will, and the subject it regulates is one of vast importance, not only to the people of the county, but to the people of the state at large.

Yet this act is submitted to the control of every county court, to make such order for its being in force in their county as they, in their discretion, may think proper. In other words, this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be in force in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became, by its own terms, a law in every county not excepted by name in the act. It did not then require the county court to do any act, in order to give it effect. But being the law in the county, and having, by its provisions, superseded and abrogated the inconsistent provisions of previous laws, the county court is, by the thirty-third section, empowered, for such time as they may think proper, to sustain this act, and revive the repealed provisions of the former act. When the question is before the county court, for that tribunal to determine which law shall be in force, it is urged before us, that the power then to be exercised by the court is strictly legislative power, which, under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the...