State v. Mills

• Decision Date: 17 December 1910
• Citation: 231 Mo. 493,133 S.W. 22
• Parties: STATE ex rel. CROUSE et al. v. MILLS, Judge of Probate Court et al.
• Court: Missouri Supreme Court

133 S.W. 22

231 Mo. 493

STATE ex rel. CROUSE et al. v. MILLS, Judge of Probate Court et al.

Supreme Court of Missouri.

December 17, 1910.

1. STATUTES (§ 168)—REPEAL—IMPLIED REPEAL.

A later act which is unconstitutional, cannot, by implication, repeal a former valid act, and hence Rev. St. 1899, § 3650, giving probate courts jurisdiction to inquire into the cases of insane persons, was not impliedly repealed by Acts 1903, p. 200 (Ann. St. 1906, p. 2060), which sought to amend it; the amendatory act having been declared unconstitutional.

2. STATUTES (§ 168) — REPEAL — INVALIDITY OF REPEALING ACT.

The repealing clause of an unconstitutional act, which expressly repeals former acts, must be held invalid, unless it shall appear that the Legislature would have passed the repealing clause, even if it had not provided a substitute for the act repealed.

3. PROHIBITION (§ 3)—WANT OF JURISDICTION—RIGHT OF PROBATE COURT TO DETERMINE ITS JURISDICTION.

Where the jurisdiction of the probate court with respect to proceedings to inquire as to the sanity of a person under Rev. St. 1899, § 3650 (Ann. St. 1906, p. 2060) depends upon a question of fact, the court has the right to investigate the necessary facts to determine its jurisdiction, and prohibition could not be granted to prevent this; appeal being the appropriate remedy.

4. PROHIBITION (§ 5)—NATURE OF REMEDY— PREVENTION OF JUDICIAL ACTS.

Prohibition lies to prevent a court from acting, but not to undo what has been done; and hence, prohibition will not be granted to review a judgment which has become final.

5. PROHIBITION (§ 11)—GROUNDS—ERRORS— IRREGULARITIES—FINAL JUDGMENT.

In a proceeding in the probate court for an inquiry as to the sanity of a person under Rev. St. 1899, § 3650 (Ann. St. 1906, p. 2060), the defendant appeared and attacked the jurisdiction of the court, and the court determined this question against her, and an appeal was taken. Held, that as the probate court had a right to determine these facts and enter judgment upon them, this judgment, whether erroneous or not, was final, and not subject to attack by a writ of prohibition.

6. PROHIBITION (§ 26)—ERRORS—IRREGULARITIES—FINAL JUDGMENT—ADMISSION IN RETURN.

Where final judgment has been had in an insanity proceeding in the probate court and a writ of prohibition is sued out, an admission in the return made by the respondents, one of whom is judge of said court, cannot destroy the conclusive effect of the judgment.

7. PROHIBITION (§ 5) — GROUNDS—PROCEEDINGS UNDER VOID JUDGMENT.

Prohibition will lie to prevent proceedings under a void judgment.

8. INSANE PERSONS (§ 9)—INQUISITION—PROBATE COURT—STATUTES—NONRESIDENCE.

Under Rev. St. 1899, § 3650 (Ann. St. 1906, p. 2060), conferring on probate courts jurisdiction to inquire into the sanity of persons, and providing that "if information in writing be given to the probate court that a person in the county is an idiot, lunatic, or person of unsound mind," the court shall assume jurisdiction. In the case of residents of the state, the probate court of the county in which the insane person resides, and not the county in which he is found, has jurisdiction; but in the case of nonresidents of the state, the court of the county in which an insane person, who is not a pauper, is found, has jurisdiction.

In Banc. Original proceedings for prohibition upon the relation of Margaret B. Crouse and another against Edwin W. Mills, Judge of the Probate Court of the County of St. Louis, State of Missouri, and another. Writ refused.

John Lally, for relators. F. W. Imsiepen and Bernard Greensfelder, for respondents.

GRAVES, J.

By our writ of prohibition the relators seek to prohibit the defendant Edwin W. Mills, judge of the probate court, from further entertaining jurisdiction of the person and estate of relator Margaret B. Crouse. Upon application being filed, a preliminary rule was entered requiring respondents to show cause and they in due time made their return. Relators then move for judgment upon the pleadings.

The petition and return are both long, but the apparent facts admitted by the pleadings are as follows: In 1882 the relator Margaret B. Crouse was married to one William C. Crouse under the name Maggie Jessie Bulfin. She was the daughter of Jessie Bulfin, now deceased, and is a sister of her co-relator, John F. Bulfin. The marriage was in the city of St. Louis and whilst they were so living the relator, from the year 1896, was being treated for insanity. In the year 1905, her husband caused her to be confined in St. Vincent's asylum in St. Louis county, for treatment. Up to January, 1907, the residence of the husband, W. C. Crouse, was in St. Louis. From January, 1907, to March, 1908, his residence was in Philadelphia, Pa. The mother of relators died in 1904, leaving some property in the city of St. Louis, in which each relator has an undivided one-third interest. William C. Crouse in fact never lived in St. Louis county, nor did his wife ever own any property or estate in such county. August 7, 1907, one C. H. Kern, charged to have been counsel for the husband and acting under his direction, filed an affidavit in the probate court of St. Louis county charging "that one Jessie B. Crouse, in the county of St. Louis, aforesaid, is a person of unsound mind and incapable of managing her affairs, and prays that an inquiry thereinto be had, according to the statutes in such case made and provided. Informant further states that said Jessie B. Crouse is the owner of property of the value of about $2,000." Upon this information the probate court caused a notice to be issued in the name of Jessie B. Crouse, which notice was personally served upon relator in the asylum aforesaid by the sheriff of the county. On September 16, 1907, a jury in the said probate court returned a verdict in this language: "We, the jury, find the respondent Jessie B. Crouse to be of unsound mind and incapable of managing her affairs." Upon the return of this verdict the said court entered a judgment in accordance with the verdict aforesaid, and appointed the respondent, Joseph B. Greenfelder, "as guardian of the person and estate of the said Jessie B. Crouse." Greenfelder qualified and gave the bond required by the court. Later, in October, 1907, Jessie B. Crouse, by John Lally, her attorney, filed a motion asking, for certain named reasons, that the judgment and order of the court aforesaid be set aside. This motion was overruled and an appeal was taken to the circuit court of St. Louis county, where by its judgment that court dismissed the said appeal. From such judgment, an appeal was taken to the St. Louis Court of Appeals, and the judgment of the circuit court was affirmed. In the matter of Jessie B. Crouse, non compos, 140 Mo. App. 545, 120 S. W. 666. Later it appears that, acting under the direction of the probate court of St. Louis county, the said respondent, Greensfelder, instituted a partition suit in the city of St. Louis, to divide the property left to relator Margaret B. Crouse and her brother and sister by the mother. All court records and pleadings, both in the probate and circuit courts, are attached to either the petition or the return in the case at bar, but further details may well be omitted. This sufficiently states the case for a disposition of the points made by the respective parties.

1. The constitutionality of section 3650, Rev. St. 1899 (Ann. St. 1906, p. 2060), as amended in 1903, is challenged. Prior to the amendment the statute read as it now reads, with the words of the proviso left out. It now reads: "If information in writing be given to the probate court that any person in its county is an idiot, lunatic or person of unsound mind, and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury: Provided, that the probate court shall not have jurisdiction to inquire into the insanity of any person who is the owner of no property." Acts 1903, p. 200. This amended statute was the act of the General Assembly in 1903, as above indicated.

In Redmond v. Railroad, 225 Mo. 731, 126 S. W. 162, we said: "We hold that the act of the General Assembly entitled, `An act to amend section 3650, chapter 39, of the Revised Statutes of Missouri, 1899, entitled Insane Persons,' approved March 25, 1903, is unconstitutional." This language is broad, but when it is taken with the context our meaning is clear. What was really held is that the proviso clause was violative of constitutional provisions and that such clause was void.

But even if it be conceded, which we do not concede, that the void proviso rendered the whole act of 1903 void, yet we would have a law empowering probate courts to hold inquiries as to lunacy. The old section 3650 would be the law. This act of 1903 contained no repealing clause, but even had it contained such clause, there would be no difference. The rule, well buttressed by authority, is thus stated in 36 Cyc. 1098: "An act, unconstitutional in itself, may contain a valid clause repealing another act. The rule is well settled, however, that an unconstitutional enactment will not repeal a former valid law by mere implication. And the rule is the same where the subsequent unconstitutional act declares the repeal of all acts or parts of acts inconsistent therewith, and it is apparent that the repealing statute is to be substituted for the one repealed; there being nothing that can conflict with a void statute. So where an act expressly repealing another act and providing a substitute therefor is found to be invalid, the repealing clause must also be...