State v. Scott

• Decision Date: 31 January 1853
• Citation: 17 Mo. 521
• Parties: STATE, AT THE RELATION OF DOUGLASS, Respondent, v. SCOTT, Appellant.
• Court: Missouri Supreme Court

17 Mo. 521

STATE, AT THE RELATION OF DOUGLASS, Respondent,

v.SCOTT, Appellant.

Supreme Court of Missouri.

January Term, 1853.

1. Where an act establishing a new county within the limits of an old one is unconstitutional, the sheriff of the old county may proceed by quo warranto against the person assuming to act as sheriff of the new county.

2. It seems, that a clause in a law establishing a new county, requiring it to be submitted to a vote of the people who are to bear the consequent burdens, might not be held unconstitutional.

3. Under the amendments to the state constitution, ratified in 1849, a law establishing a new county, by which an old one was reduced below the ratio of representation, was held unconstitutional, notwithstanding a proviso that, for the purposes of representation, the inhabitants of the new county should continue to vote as in the old one, until the population of the new county should entitle it to a representative.

Appeal from Henry Circuit Court.

Wright and Hicks, for appellant. The sixth section of the act in question providing for its submission to a vote of the people, is not unconstitutional. Commonwealth v. Judges, 8 Barr, 391. Commonwealth v. Painter, 10 Barr, 214. Even if that section is void, the whole act is not thereby rendered void. That section may be considered as stricken out, and the balance of the act may stand. Clark v. Ellis, 2 Blackf. 8. The act did not reduce Bates county below the ratio of representation, within the meaning of the constitution. Vernon county was organized for civil and military purposes only, which is expressly allowed by the amendment to the constitution. It might more properly be termed a district than a county. The act expressly provides that, for the purposes of representation, the inhabitants shall vote as before.

Leonard, Winston and Ballou, for respondent. The act of February 17, 1851, establishing Vernon county, is unconstitutional and void. All legislative power is vested in the general assembly, and cannot be delegated. No legislative power is vested in the body of the people. The act in question is not a law, but a proposition. It does not exist as a law proprio vigore, as it comes from the general assembly, but is enacted into a law at the ballot box. It is not the judgment of the legislative department of the government, but of the people of Bates and Cass counties. Rice v. Foster, 4 Harr. (Del.) Rep. 480. Parker v. Commonwealth, 6 Barr, 507. Holley v. Bengen & Fancher, Code Reporter of April, 1851. Tanner v. Trustees of Albion, 4 Hill's Rep. 138. Again, it reduces the county of Bates below the ratio of representation existing at the time the act was passed, and so violates the amendment to the constitution ratified in 1849.

GAMBLE, Judge, delivered the opinion of the court.

An information in the nature of a quo warranto was filed in the Circuit Court of Bates county, against Scott, charging him with exercising unlawfully the powers, and performing the duties, of the office of sheriff within the limits of the county of Bates, when another person had been duly elected and qualified as sheriff of that county, and was in the discharge of its duties. The defendant pleaded that the general assembly, by an act approved February 17th, 1851, established the county of Vernon out of territory which before had been partly in Bates and partly in Cass counties; that the sixth section of that act provided, that a poll should be opened in all the precincts in the counties of Bates and Cass, on the first Monday in August, 1851, and if the majority of the aggregate votes of the two counties, should be in favor of establishing the new county, then the act should be and remain in force, unless the majority of votes given within the limits of the new county should be ““against its ratification,” in which case, the act should be void and inoperative, and none of the provisions of the act to be in force until after such election. The plea alleged that the vote had been taken, as required by the act, and that the majorities had been in favor of the establishment of the new county, and that, under the provisions of the law, the defendant had been regularly appointed sheriff of the county of Vernon, in which capacity, and in none other, he had performed the functions and exercised the powers of sheriff within that part of the territory of Vernon county which had formerly been within the limits of Bates county. To this plea, there were two replications. The first of which was merely a demurrer, as it alleged that the act of the general assembly, pleaded by the defendant, attempted to confer legislative power upon the people of Bates and Cass counties, and so was contrary to the constitution and void. The second replication alleged, that the county of Bates, at the time of the passage of the said act of assembly, contained a less number of permanent free white inhabitants than the ratio of representation then required--such inhabitants then amounting to the number of three thousand three hundred and thirty, when the ratio of representation was then three thousand six hundred and forty-five and twenty-seven twenty-eighths of permanent free white inhabitants; that by the passage of said act, the number of permanent free white inhabitants of Bates county was reduced to a number below the ratio of representation then required, to-wit: to the number of two thousand five hundred, and so the said act was contrary to the constitution and void. To the first replication, the defendant, in the form of a rejoinder, answered, that the act of assembly was constitutional and not void, and so an issue of law was made in the form of an issue of fact. To the second replication, the defendant rejoined that, by the said act of assembly, it was provided that, for the purposes of representation, the county of Vernon should vote as theretofore; that is, that the citizens of that portion of Vernon, taken from Bates, should vote as in Bates, while the citizens of that territory taken from Cass should vote as in Cass, until the population should entitle Vernon county to a representative. To this rejoinder, the state demurred. There was also a plea, in which the defendant denied that he exercised or usurped the office of sheriff of Bates county, as in the information was supposed, and on this plea issue was joined. The case having been removed by a change of venue to Henry county, was heard by the court upon the demurrers, and the act of the general assembly establishing Vernon county, was decided to be unconstitutional and void, and so the demurrers were decided in favor of the state. The issue of fact being submitted to the court, it was found that the defendant did exercise and execute the office of sheriff within the limits of Bates county, and usurped the liberties and privileges of the office of sheriff within said county, without any legal right or warrant therefor. Judgment of ouster was given against said defendant, and he was fined one cent.

1. Upon the argument of this case, a doubt was suggested whether the present proceeding affords the appropriate remedy for the illegal act of the defendant in exercising the functions of sheriff within the county of Bates, as it was originally organized, when he did not claim to be the sheriff of Bates county, but to hold a commission as...