State v. Fort

• Citation: 210 Mo. 512,109 S.W. 737
• Parties: STATE ex rel. JUDAH v. FORT, Judge.
• Decision Date: 12 March 1908
• Court: United States State Supreme Court of Missouri

109 S.W. 737

210 Mo. 512

STATE ex rel. JUDAH v. FORT, Judge.

Supreme Court of Missouri.

March 12, 1908.

1. PROHIBITION — GROUNDS—PROCEEDINGS OF COURTS.

The writ of prohibition, in the exercise of judicial discretion, may go to confine a court within the limits of its jurisdiction, whether it has no jurisdiction at all, or is exercising powers in excess of its rightful jurisdiction.

2. CONSTITUTIONAL LAW — STATUTES — PRESUMPTION OF CONSTITUTIONALITY.

There is a strong presumption in favor of the constitutionality of a statute, and it will not be declared void, unless the violation of the Constitution is so palpable as to leave no room for reasonable doubt.

3. SAME—TITLE OF ACT AS GUIDE.

The title of an act is a valuable aid in determining the scope and constitutionality of the act itself.

4. STATUTES — VALIDITY — LOCAL OR SPECIAL STATUTES.

Legislation authorized by the Constitution cannot be regarded as local or special, within the prohibition of the Constitution, merely because its application is purely local, but whether it is such a local or general law must be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates; and if it affects equally all persons within its range, it is neither special nor local within the prohibited sense, and hence the act to create an additional division of the criminal court of Jackson county (Laws 1907, p. 209), authorized by Const. art. 6, § 31 (Ann. St. 1906, p. 237), giving power to establish criminal courts in counties of over 50,000 population, is not a local or special law in the objectionable sense, though including in its scope but one court, since, though it does not apply to all the courts of like nature, it affects the judicial system of the state, which is a whole.

5. CRIMINAL LAW — JURISDICTION—TRANSFER OF CAUSES.

The act to create an additional division of the criminal court of Jackson county, etc., "and to provide for changes of venue from said court and from each division thereof" (Laws 1907, p. 210), by section 2 provides that when, in the opinion of the judge of division 1 of the criminal court, the business requires the assistance of an additional judge, the judge of another specific court, upon notice of that fact, shall open division 2 of the criminal court, and shall proceed with its business until, in the opinion of the judge of division 1, no further assistance is needed, when division 2 shall be adjourned finally. Section 8, p. 211, provides that change of venue shall be allowed by the court from one division to the other. Held, that the judge of division 1 is not required to call division 2 into session in order to receive cases on change of venue, but either division shall receive and try changes of venue from the other, independent of the will of the judge of division 1.

6. SAME.

The grant of power to try changes of venue carried with it, by necessary implication, everything necessary to make the grant effectual, including the power to meet, open court, try the case, and adjourn.

Gantt, C. J., and Burgess and Valliant, JJ., dissenting.

In banc. Petition by the state, on the relation of A. Judah, for a writ of prohibition, prohibiting James L. Fort, judge, from trying a criminal case. Writ awarded.

A. L. Cooper and Frank M. Lowe, for relator. I. B. Kimbrell and R. H. Field, for respondent.

LAMM, J.

This is an original proceeding in prohibition. Such preliminary and intermediate steps were had in the cause that, when finally submitted, it stood on an implied concession that allegations of fact well pleaded in the petition were true. Respondent's counsel make a statement of the case, admirably fair and colorless, full and brief. We borrow and use it for the purposes of this opinion, viz.:

"The relator, A. Judah, was indicted in the criminal court of Jackson county, Mo., at the September term, 1907, for running a Sunday theater in Kansas City, Mo. Afterwards, on or about October 24, 1907, by affidavit of himself and two witnesses, relator disqualified Hon. William H. Wallace, the judge of the criminal court, to try said cause. Afterwards, on November 30th, the Jackson county criminal court made an order, setting the case down for trial January 7, 1908, before Hon. James L. Fort, of Stoddard county, Mo., judge of the Twenty-Second judicial circuit in this state, and notified and requested Judge Fort to appear and try the said cause in the Jackson county criminal court. The relator asks, in the petition for prohibition herein, that Judge Fort be prohibited from trying the said cause in the criminal court, on the sole ground that Hon. William H. Wallace, judge of the criminal court, was, by the Missouri legislative act, approved March 19, 1907 (Laws 1907, p. 209), not then allowed to call in Judge Fort, or any judge of another circuit, under the general statute (section 2597, Ann. St. 1906, p. 1538), and was not then allowed to call in any judge to try said cause, except Hon. E. E. Porterfield, judge of division No. 7 of the circuit court of Jackson county, Mo., at Kansas City."

Referring to the foregoing statement, we shall assume that counsel mean by "section 2597" of the General Statutes a new section of that number, substituted for the old section repealed in 1905. Laws 1905, p. 131. We shall assume, also, that counsel, when they say that Judge Wallace can only call in Judge Porterfield, judge of division No. 7 of the circuit court of Jackson county, Mo., mean to say that he can only call in the judge of division No. 7, whomsoever he may be at the time. It serves a wholesome purpose—a judicial purpose—to say that whatever fervor or color crept into the case in any of its preliminaries or in oral argument has been cast aside, and it is now put to us by briefs presenting merely a serene and dignified legal question relating to a change of venue statute, to be determined dispassionately, by the aid of right reason alone, to be settled, moreover, on the theory that vexed questions relating to the "sacredness of the natural right to labor," on the one hand, and the sacredness of the Christian Sabbath of our fathers, on the other, are not in the case at bar at all, and hence may be safely left to take care of themselves when a concrete case involving questions of law relating to either reaches this court in due course. When such vexed questions reach this court, they will receive in the future, as they have in the past, a judicial consideration, suited to their solemn character—such consideration as is due from the highest court of a free and Christian people on questions which (to borrow the animated language of Sir John Culpepper in the Long Parliament) "sup in our cup, dip in our dish, and sit by our fire." The case itself, the parties litigant, the learned counsel on both sides, and this court are to be felicitated not a little on this happy status quo; for, in the forum, Reason and Passion are an ill-assorted pair of hand-maidens.

It will do to say, also, that the issue here comes close home to the administration of the whole body of the criminal law in Jackson county. This is so because, until the question shall be settled as to whether a change of venue goes from Judge Wallace, of division 1, to Judge Porterfield, of division 2, of that court, or vice versa, there is left a wide, open, and anxious proposition—a proposition which may be injected, by astuteness and desire, into the trials of indictments on every grade of offense known to the criminal law in a great city. Therefore it becomes a question that appeals, sua sponte, to the final and controlling source of judicial power; and therefore it ought to be settled out of hand, and not left to be determined this way or that, nisi, subject to the hazard of being determined contrary to our views, and thus lodge reversible error in criminal trials in that county at the beck and call of defendants who seek changes of venue from division 1 of that court. This is no fanciful dilemma. A change of venue is no unusual incident in a case. A change of venue, in a criminal case where the trial judge is basing his ruling on the unconstitutionality of the statute relating to the change of venue, would become an ordinary incident; for such ruling is an implied invitation to inject the question into the record, to the end that an exception may be saved, and a judgment against defendant be reversed, if, peradventure, an appellate court finally sustains the constitutionality of the law. Such considerations as these have appealed powerfully to us to exercise our discretion in taking cognizance of this case. A stitch in time saves nine; an ounce of prevention is better than a pound of cure, in law, as in everyday life.

1. It cannot be doubted that (subject to a judicial discretion, to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction, whether such court has no jurisdiction at all, or is exercising powers in excess of its rightful jurisdiction. So much is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its power in any particular matter, as well as to prevent the excess of jurisdiction in a cause not given to it by law. State ex rel. v. Foster, Judge, 187 Mo. 590, 86 S. W. 245; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037; State ex rel. v. Eby, Judge, 170 Mo. 497, 71 S. W. 52; State ex rel. v. Bradley, Judge, 193 Mo. 33, 91 S. W. 483; State ex rel. v. Fort, Judge, 178 Mo. 518, 77 S. W. 741.

2. As presently seen, the constitutionality of certain provisions of the act of 1907 (Laws 1907, p. 209), creating division 2 of the criminal court of Jackson county, and providing for the distribution of cases between the two divisions for...