State v. Nast

• Decision Date: 27 February 1908
• Parties: STATE ex rel. BOARD OF EDUCATION OF CITY OF ST. LOUIS v. NAST et al.
• Court: Missouri Supreme Court

108 S.W. 563

209 Mo. 708

STATE ex rel. BOARD OF EDUCATION OF CITY OF ST. LOUIS v. NAST et al.

Supreme Court of Missouri.

February 27, 1908.

1. FINES — IMPOSITION BY LEGAL COURT.

The imposition of a fine as a punishment can only be done by a legally constituted court.

2. SAME — DISPOSITION OF PROCEEDS — CONSTITUTIONAL PROVISION.

Const. art. 11, § 8 [Ann. St. 1906, p. 299], provides that the clear proceeds of all fines collected in the several counties for any breach of the penal laws shall belong to the public schools of the several counties. Held, that a law directing the clerk of a lawfully constituted court to pay all fines into the city treasury is unconstitutional; but, if the court is not lawfully constituted, a board of education cannot compel payment to it of the fines collected.

3. COURTS — CREATION — POWERS OF LEGISLATURE.

Const. art. 6, § 1 [Ann. St. 1906, p. 212], provides that the judicial power of the state, except as otherwise therein provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts, and municipal corporation courts. Section 31 [page 237] limits the power of the General Assembly to establish criminal courts to counties having a population exceeding 50,000. Section 37 [page 240] provides for the election of justices of the peace. Section 22 [page 234] confers jurisdiction on circuit courts. Section 28 [page 236] gives the General Assembly power to provide for additional justices for any circuit composed of a single county. The Constitution was amended in 1884 by creating the Kansas City Court of Appeals, and providing for its jurisdiction and that of the St. Louis Court of Appeals, and giving the Legislature power to create an additional Court of Appeals. The Constitution of 1875 provided for the continued existence of all criminal courts existing under the laws of the state and not specially provided for in the Constitution. Held, that the Legislature may apportion among the courts provided for the judicial power vested in them by the Constitution, and that act of April 15, 1907, creating "the St. Louis court of general sessions" (Laws 1907, p. 212), giving the court exclusive jurisdiction in the city to hear and determine all preliminary charges of felony, making the judge a conservator of the peace, and giving him power to issue writs of habeas corpus and administer oaths and affirmations, and take and acknowledge recognizances, and receive a plea of guilty by one charged with a misdemeanor, and impose sentence, and making the fines received payable into the city treasury, is unconstitutional; it not being within the power of the Legislature to create such court.

4. SAME — POWERS OF CONGRESS.

Const. U. S. art. 3, § 1, vesting the judicial power of the United States in a Supreme Court and such other courts as Congress may establish, is a grant and distribution of the judicial power of the United States.

5. SAME — JURISDICTION — CONSENT OF PARTIES.

There can be no valid prosecution for crime unless the court in which the prosecution takes place is legally created and has jurisdiction of the offense and the defendant, as jurisdiction cannot be conferred by consent, and the authority of a court as to the trial of civil or criminal cases is determined by the class of cases it is given jurisdiction to try, rather than by the name used to designate it.

6. SAME — SOURCE OF JUDICIAL POWER — PRELIMINARY EXAMINATION.

Judicial power, under Const. art. 6, § 1 [Ann. St. 1906, p. 212], providing that the judicial power of the state shall be vested in certain courts specified, is the power which vests in a court to try and determine causes, as distinguished from the judicial function to examine and discharge or commit for trial, and Rev. St. 1899, § 2441 [Ann. St. 1906, p. 1478], vesting in justices of the peace the power to make a preliminary examination of one accused of felony, is not a grant of the judicial power of the state.

7. CRIMINAL LAW — FORMER JEOPARDY — NATURE OF PROSECUTION — PRELIMINARY EXAMINATION.

The conclusion of a committing magistrate is in no sense a judgment, and is no bar to further prosecution.

8. COURTS — SOURCE OF JUDICIAL POWER — STATUTORY PROVISIONS.

Act April 15, 1907, creating the St. Louis court of general sessions (Laws 1907, p. 212, § 4), gives the judge the power to issue writs of habeas corpus in matters of a criminal nature and determine the same. Held, that as the power is not granted to the tribunal itself, no part of the judicial power of the state is conferred on the tribunal, and the power given the judge would not make his court a criminal court.

9. HABEAS CORPUS — NATURE OF REMEDY — CIVIL PROCEEDINGS.

The proceeding by habeas corpus is civil.

10. STATUTES — EFFECT OF PARTIAL INVALIDITY.

Where an unconstitutional section in an act is the consideration for the entire act, or so interwoven into it that it is fair to presume that the Legislature would not have enacted the statute but for that section, the whole act must fail.

In Banc. Application for a writ of mandamus by the state, on the relation of the board of education of the city of St. Louis, against Adolph Nast, clerk of the circuit court for criminal causes in the city of St. Louis, and the city of St. Louis. Writ denied.

E. M. Grossman, for relator. Arthur N. Sager, Loomis C. Johnson, Charles W. Bates, and Charles P. Williams, for respondents.

GANTT, C. J.

This is an application in this court for a writ of mandamus against the clerk of the circuit court for criminal causes in the city of St. Louis and against the city itself, to require the defendant Nast, as clerk of said court, to pay over to the board of education of the city of St. Louis all fines, penalties, and forfeitures heretofore collected by him, and which may hereafter be collected by him as clerk of the St. Louis court of general sessions. The petition set forth that the board of education is a public corporation, organized and existing under the laws of the state of Missouri, and as such is in charge of the public schools and of the school fund of the city of St. Louis; that the defendant Nast is the duly elected, qualified, and acting clerk of the circuit court for criminal causes in the city of St. Louis, and that the defendant city of St. Louis is the municipal corporation of that name in the state of Missouri. It is then alleged that the Forty-Fourth General Assembly of the state of Missouri, at its general session at Jefferson City in 1907, passed an act creating "the St. Louis court of general sessions" (Laws 1907, p. 212), and that by section 5 of said act the clerk of the circuit court for criminal causes in the city of St. Louis is constituted ex officio clerk of the said court of general sessions, and that, pursuant to said provision, defendant Adolph Nast is the qualified and acting clerk of said St. Louis court of general sessions. That by virtue of section 10 of said act said court is given power to declare forfeitures, and by section 11 of said act said court is given power to assess such punishment as may be fixed by law whenever a defendant shall plead guilty to a misdemeanor, and by section 17 in said act the clerk of said court is directed to pay all fines, penalties, and forfeitures collected by him, into the city treasury. That said section 17 violates section 8, article 11, of the Constitution of the state of Missouri [Ann. St. 1906, p. 299], which provides: "All * * * the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of penal or military laws of the state * * * shall belong to and be securely invested and sacredly preserved in the several counties as a county school fund; the income of which shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of the state." That on or about the 2d day of July, 1907, one Peter Reiser pleaded guilty in the said court of general sessions to a misdemeanor, and was fined by said court in the sum of $100; that on or about the 31st of August, 1907, one Michael Forster pleaded guilty in the said court to a misdemeanor, and was fined in the sum of $10; that on or about the 25th of September, 1907, one Carrie Hegel pleaded guilty in said court to a misdemeanor, and was fined in the sum of $89; that on or about the 4th of October, 1907, one John Jones pleaded guilty in said court to a misdemeanor, and was fined in the sum of $50; and on the 15th of October, 1907, Charles Brooks pleaded guilty, and was fined in the sum of $25. That the defendant Adolph Nast, clerk, as aforesaid, had collected all of the above fines, amounting in the aggregate to the sum of $283, and has audited said sum to the benefit of the defendant the city of St. Louis, and has refused and still refuses to turn over the sum to the board of education of the city of St. Louis, though often requested to do so. The prayer of the petition is that a writ of mandamus be awarded against the said defendant, requiring him to pay over the amount of said fines, and all fines which may hereafter be collected by him as the clerk of said court, to the board of education.

This court awarded the alternative writ of mandamus, and the defendants waived the service of the same and entered their respective appearances in the cause and filed separate demurrers to the alternative writ. The circuit attorney, appearing for the clerk, demurred, on the general ground that the petition did not state the facts sufficient to constitute a cause of action against the clerk. The city of St. Louis, by the city counselor and his assistant, in its demurrer, assigns the following special reasons why the writ should not be made peremptory: "(1) Because the facts stated in said writ are not sufficient to entitle the relator, the board of education of the city of St. Louis, to any relief whatever, and because the same does...