State v. Murray

• Decision Date: 14 November 1911
• Citation: 140 S.W. 899,237 Mo. 158
• Parties: THE STATE, Appellant, v. ELMER MURRAY and H. F. SCHMIDT
• Court: Missouri Supreme Court

140 S.W. 899

237 Mo. 158

THE STATE, Appellant, v. ELMER MURRAY and H. F. SCHMIDT

Supreme Court of Missouri, Second Division

November 14, 1911

Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.

Reversed and remanded (with directions).

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Harvey D. Dow of counsel.

(1) The amendment of 1881 does not contravene section 28, article 4 of the Missouri Constitution. Burgdoerfer Case, 107 Mo. 30. (2) The amendment to the act of the Legislature, approved March 26, 1881 (Laws 1881, p. 114), prohibiting persons removing or placing in public roads or highways, or in the streams or water courses other than the Missouri or Mississippi rivers, is presumed to be constitutional. If there is a doubt existing as to the constitutionality of the act, it must be resolved in favor of its validity. Ex parte Loving, 178 Mo. 203. Every presumption is to be indulged in favor of the validity of the act. State ex rel. v Aloe, 152 Mo. 477; State v. Cantwell, 179 Mo 261; State ex rel. v. Railroad, 48 Mo. 471; State ex rel. v. Pike County, 144 Mo. 280; Kesleart v. Shoer, 134 Mo. 10; County v. Griswold, 58 Mo. 192; State v. Walbridge, 119 Mo. 383; State v. Able, 65 Mo. 357; Manker v. Faulhaber, 94 Mo. 430; Endlich on Int. of Stat., sec. 178, p. 246; Railroad v. Van Horn, 57 N.Y. 473; French v. Teschemaker, 24 Cal. 518; Attorney-General v. Eau Claire, 37 Wis. 400; State ex rel. v. Shelton, 136 Mo. 429; Brown v. Buzan, 24 Ind. 194; Slack v. Jacob, 8 W.Va. 612. (3) The title to the act does not violate section 28, article 4, of the Constitution. One of the purposes of this section is to prevent the vicious practice of conjoining in the same bill incongruous matter and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title. State ex rel. v. Heege, 135 Mo. 119; State ex rel. v. Ranson, 73 Mo. 86; State ex rel. v. County Court, 102 Mo. 537; Knight Templars' Indemnity Co. v. Jarman, 187 U.S. 206; State v. County Court, 128 Mo. 427; State ex rel. v. Bronson, 115 Mo. 271; State v. Miller, 45 Mo. 495. (4) Another acknowledged reason for section 28, article 4, found in the Constitution, was to have the title to an act to indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or greater number of words, if they did not mislead as to what the bill contained, and are not designed as a cover to vicious and incongruous legislation. St. Louis v. Witzel, 130 Mo. 616; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller, 100 Mo. 439; Cooley's Const. Lim. 175; People v. Mahoney, 13 Mich. 495; State v. Bengsch, 107 Mo. 105; State v. Bockstruck, 136 Mo. 335; Bishop's Stat. Crimes (2 Ed.), sec. 36a. (5) Any section of the statute may be amended provided it be fully set forth. Sec. 34, Art. IV, Constitution 1875, State v. Thurston, 92 Mo. 325; State v. Hendrix, 98 Mo. 374; State v. Bennett, 102 Mo. 356. Where the amendatory act in its prefatory clause says that a certain section of the Revised Statutes is amended by adding certain words thereto, naming them, and the whole clause is set out in full, that clause of the Constitution referring to the amendment of statutes, by inserting or striking out words, is fully complied with. Cox v. Railroad, 174 Mo. 588; State v. Merlin, 137 Mo. 297. (6) The information is not duplicitous. It would be impossible to charge this offense without charging that the offender removed, or caused to be removed, and placed the nuisance in or near a public road or highway or in any stream, etc. State v. Quinn, 94 Mo.App. 59; State v. West, 157 Mo. 309; State v. Hendrickson, 165 Mo. 262; State v. Hall, 164 Mo. 528; State v. Thierauff, 167 Mo. 429.

Holmes Hall and George F. Longan for respondents.

(1) Taking the statute as we find it, beginning with 1855 and down to and including the revision of 1879, a careful reading of the information will show that it does not state facts sufficient to constitute a crime, unless it be charged that dead animals, etc., were placed "in" a public road; and there was never any contention that any filth was placed "in" a public road, but that it was placed "near" a public road, which was not an offense under the statute up to and including the revision of 1879. (2) The amendment of 1881 (Laws 1881, p. 114) is in violation of the Constitution of Missouri, as the subject-matter of the bill introduced is not clearly expressed in its title. Sec. 28, Art. IV, Constitution; State v. Burgderfer, 107 Mo. 30; St. Louis v. Weitzel, 130 Mo. 600; State v. Coffee and Tea Co., 171 Mo. 634; Shively v. Lankford, 174 Mo. 535; State ex rel v. Vandiver, 222 Mo. 254. (3) If the information charges any offense at all, and respondents still contend it does not, two separate offenses are charged in each count. The putting of each dead hog, dead chicken, dead turkey, and each quantity of blood, offal and other filth near the public road (as charged in the first count of the information) or into a watercourse (as charged in the second count of the information) constituted a separate offense. And the information, in each count, further charges that defendants did then and there knowingly permit the dead hogs, etc., to "remain" in and near the public road" (first count) and to "remain in said watercourse" (second count) for a period of sixty days and from thence until the filing of the information, or from October until April, or a period of six months; and as the statute since 1865 has provided that if such nuisance is not removed in three days thereafter, it shall be deemed a separate offense, two separate alleged offenses are charged in each count -- putting it there is one offense, and allowing it to remain three days is another. Bishop's New Crim. Proc. (4 Ed.), sec. 432; State v. Bridges, 24 Mo. 353; State v. Green, 24 Mo.App. 227; State v. Healy, 50 Mo.App. 243; State v. Harrison, 62 Mo.App. 112; State v. Boyd, 108 Mo.App. 518; State v. Boyd, 196 Mo. 60; State v. Fox, 148 Mo. 517; State v. Blakely, 184 Mo. 187.

KENNISH, P. J. Ferriss and Brown, JJ., concur.

OPINION

KENNISH, P. J.

This is an appeal from a judgment of the circuit court of Pettis county, quashing an information which charged the defendants with the misdemeanor of creating and continuing a public nuisance. An appeal was taken by the prosecuting attorney to the Kansas City Court of Appeals, in which court, on the motion of the respondents, the case was transferred to this court upon the ground that the appeal involved a construction of the Constitution of this State, and the case comes thus before us for decision. No question is raised as to the regularity of the appeal or as to the sufficiency of the record.

The information is in two counts, the first being as follows:

"Comes now Harvey D. Dow, Prosecuting Attorney for the State of Missouri, within and for the body of the county of Pettis, and upon his oath of office as such Prosecuting Attorney, informs the court:

"That, Elmer Murray and H. F. Schmidt on the -- day of October, 1909, at the county of Pettis and State of Missouri, did unlawfully remove and place a great number of dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth in and near a certain public road and highway there situate and running from the Sedalia and Longwood road to the new Sedalia and Beaman road, said strip of road being known as the old Sedalia and Beaman road; and did then and there knowingly permit and suffer the said dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth then and there to remain in and near said public road for the space of sixty days thereafter, and from thence until the filing of this information, to the annoyance of the citizens of this State then and there upon said public road working, passing and repassing; contrary to the form of the statute in such cases made and provided; against the peace and dignity of the State."

The second count charges an offense in the same form as the first, the only difference being that the place of the offense is alleged to be a certain watercourse and stream, instead of a public highway, as in the first count.

The information is based upon section 4795, Revised Statutes 1909, which provides: "If any person or persons shall put any dead animal, carcass or part thereof, the offal or any other filth into any well, spring, brook, branch, creek, pond or lake, every person so offending shall, on conviction thereof, be fined in any sum not less than ten nor more than one hundred dollars. If any person shall remove, or cause to be removed and placed in or near any public road or highway, or upon premises not his own, or in any of the streams or watercourses other than the Missouri or Mississippi river, any dead animal, carcases or part thereof, or other nuisance, to the annoyance of the citizens of this State, or any of them, every person so offending shall, upon conviction thereof, be fined for every such offense any sum not less than ten dollars nor more than fifty dollars, and if such nuisance be not removed within three days thereafter, it shall be deemed a second offense against the provisions of this section."

The respondents' motion to quash the information was as follows:

"Come now the above named defendants, and move the court to quash the information filed herein, for the following reasons to-wit:

"First: Said information does not state facts sufficient to constitute a crime under the laws of the State of Missouri.

"Second Section number 2234 of the Revised Statutes of the State of Missouri of 1909, under which this action is brought, is unconstitutional and void, for the following...