State v. Roach, 18098.

• Court: United States State Supreme Court of Missouri
• Citation: 167 S.W. 1008,258 Mo. 541
• Docket Number: No. 18098.,18098.
• Parties: STATE ex rel. GARESCHE v. ROACH, Secretary of State.
• Decision Date: 02 June 1914

167 S.W. 1008 258 Mo. 541 STATE ex rel. GARESCHE
v.
ROACH, Secretary of State. No. 18098. Supreme Court of Missouri. June 2, 1914.

1. EVIDENCE (§ 29)—JUDICIAL NOTICE—GENERAL STATUTES.

The court takes judicial notice of the general primary election law.

2. EVIDENCE (§ 41)—JUDICIAL NOTICE—GENERAL STATUTES.

The court takes judicial notice of the fact that the Eighth judicial circuit is composed wholly of the city of St. Louis.

3. ELECTIONS (§ 126)—PRIMARY ELECTIONS— CONSTRUCTION OF STATUTE—PRESUMPTIONS.

The court, in construing Rev. St. 1909, § 5862, providing for the filing of declarations of candidacy for public office at a primary election, will presume that the Legislature had in mind the fact that the Eighth judicial circuit is composed wholly of the city of St. Louis.

4. PLEADING (§ 214) — DEMURRER — ADMISSIONS.

On demurrer, the truth of all matters well pleaded in a petition is admitted.

5. STATUTES (§ 207)—CONSTRUCTION—GENERAL AND SPECIAL PROVISIONS.

The general provisions of a statute yield to special provisions, where there is a conflict, and where the general expressions in one part are inconsistent with the more specific provisions in another part.

6. STATUTES (§ 206)—CONSTRUCTION—MEANING OF LANGUAGE.

The court, in construing a statute, must, if possible, give effect to the whole and every part thereof, provided the interpretation reached is reasonable, and not in conflict with the legislative intent.

7. ELECTIONS (§ 126)—PRIMARY ELECTIONS— DECLARATION OF CANDIDACY — STATUTES — CONSTRUCTION.

Rev. St. 1909, § 5862, providing that no one shall file more than one written declaration of candidacy at a primary election for public office indicating the party designation under which his name is to be printed on the official ballot and that declarations for state officers, representatives in Congress, Courts of Appeals and circuit judges, and those members of the Senate and Assembly whose districts comprise more than one county shall be filed in the office of the Secretary of State, and declarations for officers to be voted for wholly in one county or in the city of St. Louis in the office of the county clerk of such county or the office of the election commissioners of the city of St. Louis, divided officers into classes, and candidates for nomination for circuit judge in the Eighth judicial circuit, comprising only the city of St. Louis, must file their declarations of candidacy with the Secretary of State.

[167 S.W. 1009]

8. STATUTES (§ 125)—TITLE—SUFFICIENCY.

The title of the nonpartisan judiciary act (Laws 1913, p. 334), entitled "An act to provide for the manner of nominating and electing candidates for judges of the circuit courts in counties and cities having three hundred and fifty thousand inhabitants or more and to establish a nonpartisan judiciary in said courts," is sufficient, within Const. art. 4, § 28, providing that no bill shall contain more than one subject, which shall be expressed in the title, to justify provisions in the body of the act for counties and cities which may subsequently have the requisite population and provisions repealing conflicting laws.

9. STATUTES (§ 109)—TITLE—CONSTITUTIONAL PROVISION.

The object of Const. art. 4, § 28, providing that no bill shall contain more than one subject, which shall be expressed in the title, is to require the title to indicate the general contents of the bill; and where the title indicates one general subject, and does not mislead as to what the bill contains, the title is sufficient.

10. EVIDENCE (§ 12) — JUDICIAL NOTICE— POPULATION OF CITIES.

The Supreme Court takes judicial notice of the population of the city of St. Louis.

11. STATUTES (§ 76)—LOCAL AND SPECIAL STATUTES—CONSTITUTIONAL PROVISIONS.

Const. art. 4, § 53, par. 32, prohibiting any local or special law where a general law can be made applicable, prohibits a statute which, while wholly local, contains provisions for classification which will make the act artificially a general law.

12. STATUTES (§ 76)—LOCAL AND SPECIAL STATUTES—CONSTITUTIONAL PROVISIONS.

Const. art. 4, § 53, par. 32, prohibiting any local or special law where a general law can be made applicable, and providing that whether a general law could have been made applicable is a judicial question, to be determined without regard to any legislative assertion on the subject, imposes on the courts the duty to determine whether a statute is local, though it contains provisions for a classification, and, if local, whether necessary, and, if necessary, whether a general law could have been made applicable; and a mere classification for the purpose of legislation, without regard to necessity therefor, must be adjudged invalid as special legislation.

13. STATUTES (§ 76)—SPECIAL OR LOCAL STATUTES—GENERAL STATUTES.

Where the Legislature has adopted a general law applicable to a subject, the court, in determining the validity of a subsequent special law on the subject, need not determine the necessity of a special law, or the applicability or lack of applicability of a general law.

14. STATUTES (§ 76)—LOCAL OR SPECIAL LAWS—NONPARTISAN JUDICIARY ACT.

The nonpartisan judiciary act (Laws 1913, p. 334), providing for the manner of nominating and electing candidates for judges for the circuit courts in counties and cities having 350,000 inhabitants or more, is a local and special law for the filling of a public office, and violates Const. art. 4, § 53, par. 32, providing that no local or special law shall be enacted where a general law can be made applicable.

Bond, J., dissenting in part.

In Banc. Mandamus by the State, on the relation of Vital W. Garesche, against Cornelius Roach, Secretary of State, to compel respondent to receive and file relator's declaration of candidacy on the Republican ticket at the ensuing primary election for the office of circuit judge of the Eighth judicial circuit. Writ granted.

This is a proceeding by mandamus to compel the respondent as Secretary of State to receive and file the declaration of candidacy of relator upon the Republican ticket at the ensuing primary election for the office of circuit judge of the Eighth judicial circuit, which circuit is composed of the City of St. Louis. This is a companion case to that of State ex rel. Garesche v. Drabelle et al., as members of the Board of Election Commissioners, etc., 167 S. W. 1016, likewise submitted at this term. The two cases, for reasons which are obvious, will be considered together, and a mere memorandum made in the latter case, when we shall have ruled this one.

The amended petition in the Drabelle Case, apposite here for reasons hereafter to be set forth, omitting style and formal parts, is as follows:

"Vital W. Garesche, petitioner herein, represents to the court: That he has attained the age of thirty years and more, is and has been a citizen of the United States for five years, has been for more than three years last past and is now a qualified voter of the state of Missouri, and is now and has been for years a resident of the Eighth judicial circuit of the state of Missouri, which consists of the city of St. Louis, and is in all other respects qualified to serve as a circuit judge in said circuit.

"That heretofore, to wit, on the 2d day of February, 1914, he filed with the board of election commissioners of the city of St. Louis, in compliance with section 5862, Revised Statutes of 1909, a declaration paper in words and figures as follows:

"`Declaration Paper.—St. Louis, Mo., February 2, 1914. I, the undersigned, Vital W. Garesche, lawyer, 6121 Westminster Place, a resident and qualified elector of the 16th precinct of the 28th ward of the city of St. Louis, Mo., do announce myself as a candidate for the office of circuit judge for the city of St. Louis, in the Eighth judicial circuit of Missouri on the Republican ticket, to be voted for at the primary election to be held on the 4th day of August, 1914, in the city of St. Louis, and I further declare that if nominated and elected to such office I will qualify. [Signed] Vital W. Garesche. [Address] 709 Wainwright Bldg., St. Louis, Mo.

"`Receipt for Filing Fee.—St. Louis, Mo., February 2, 1914. Received from Vital W. Garesche, of precinct 16, ward 28, of the city of St. Louis, state of Missouri, the sum of twenty-five dollars, being filing fee in accordance with the act of the Missouri General Assembly approved June 1, 1909, relative to primary elections, and particularly in accordance with the provisions of such act; the filing fee being a deposit as evidence of good faith on

[167 S.W. 1010]

the part of Vital W. Garesche in connection with his declaration as a candidate for the nomination as circuit judge, for the city of St. Louis, in the Eighth judicial circuit of Missouri, on the ticket of the Republican party, the said primary election to be held on the 4th day of August, 1914. Thos. K. Niedringhaus, Treasurer Republican State Committee.

"`Notice.—Name, occupation, and address of applicant must be inserted in typewriting or print, and application must be signed by applicant.'

"That before the filing thereof he paid to the treasurer of the Republican state committee the sum of twenty-five dollars as provided by law and as shown in said declaration papers as hereinabove set out.

"That the said board of election commissioners of the city of St. Louis consists of John W. Drabelle, chairman, Joseph A. Wright, secretary, Sidney S. May, and Oscar E. Buder.

"That said board of election commissioners refused to receive said declaration of your petitioner or to file the same.

"That your petitioner, being in doubt as to the meaning of section 5862, Revised Statutes 1909, as to the place where said declaration should be filed, also tendered and offered to file the same with the Secretary of State of the state of Missouri, and that the said Secretary of State refused to receive or file the same.

"That petitioner is still in doubt, under the...