State v. Slover

• Decision Date: 12 July 1895
• Citation: 31 S.W. 1054,134 Mo. 10
• Parties: STATE ex rel. KESHLEAR v. SLOVER, Circuit Judge.
• Court: Missouri Supreme Court

31 S.W. 1054

134 Mo. 10

STATE ex rel. KESHLEAR v. SLOVER, Circuit Judge.

Supreme Court of Missouri, Division No. 2.

July 12, 1895.

CRIMINAL COURT — JURISDICTION — TITLE OF ACT.

1. The provision in Act Feb. 1, 1871, that "all contested elections for" county marshal of Jackson county "shall be prosecuted before" the criminal court of said county, is sufficient to confer jurisdiction on said court to hear and determine all contested elections for such office.

2. Act Feb. 1, 1871, entitled "An act establishing the office of marshal of Jackson county, and defining his duties and powers," does not, by conferring jurisdiction on a particular court to hear and determine contested elections for such office, violate Const. 1865, art. 4, § 32, providing that an act shall not embrace a subject not expressed in its title.

3. Act Feb. 1, 1871, conferring on the criminal court of Jackson county jurisdiction of contested election cases for marshal of that county, was not repealed by Rev. St. 1889, § 4706, providing that "the several circuit courts shall have jurisdiction in cases of contested elections for county officers."

Application upon the relation of J. B. Keshlear against James H. Slover, judge of the circuit court, for writ of prohibition to restrain defendant from taking jurisdiction of a contested election case. Writ issued.

Elijah Robinson, Garner & Walsh, and Flournoy & Flournoy, for relator. Johnson & Lucas, for respondent.

GANTT, P. J.

On the 5th day of June, 1895, the relator, J. B. Keshlear, filed his information for a writ of prohibition to prevent the respondent, who is one of the judges of the circuit court of Jackson county, from entertaining jurisdiction of a certain contested election case commenced by William M. Sloan against the relator in said circuit court for the office of marshal of Jackson county, Mo. From said information it appeared: That at the general election held on the 6th day of November, 1894, the relator received a majority of the votes cast for marshal of said county. That thereupon William M. Sloan began a contest against relator for said office before the circuit court of Jackson county, and said contest was then pending in said county before Judge Slover, as judge of said court, and said respondent was about to proceed to hear and determine said cause. That said court and Judge Slover, as judge thereof, had no jurisdiction of said contested election. That the jurisdiction to hear and determine contests affecting and concerning said office of marshal of Jackson county is vested in the criminal court of said Jackson county, under and by virtue of an act of the legislature of the state of Missouri approved February 1, 1871, entitled: "County Officers; Marshal of Jackson County. An act establishing the office of marshal of Jackson county, and defining his powers and duties." That the jurisdiction of said court to hear and determine the contests for said office is exclusive of all other courts. That relator had moved said circuit court to dismiss said contest, for the reason that it had no jurisdiction; but said court overruled his motion, and is proceeding to assert jurisdiction thereof. To this information the judge of the circuit court demurred, for the reason that the information did not state facts sufficient to authorize the issuance of a writ of prohibition. The issue is the jurisdiction of the circuit court of Jackson county to hear and determine the said contest. If the criminal court had and has exclusive jurisdiction, then the writ must go; otherwise not.

The respondent relies upon three propositions: First, that the act of February 1, 1871, establishing the office of marshal of Jackson county, did not confer upon the criminal court of Jackson county jurisdiction to hear and determine contested elections for said office; second, that section 16 of said act is in contravention of the provisions of section 32, art. 4, of the constitution of 1865; third, that section 16 of said act is repealed by section 4706, Rev. St. 1889. We will consider these in the order named.

1. As this whole controversy depends upon the construction of the act of February 1, 1871 (Laws Mo. pp. 87, 88), and its constitutionality, the section of that act relating to the question now under discussion is here set out in full:

"Sec. 16. In all elections of marshal, when two or more persons shall have an equal number of votes, and a higher number than any person, the judge of the criminal court of Jackson county shall decide which of said persons shall have such office. All contested elections for such office shall be prosecuted before said court as in cases of contested elections for sheriff."

The first contention is that the language of section 16 does not confer jurisdiction on the criminal court; that, being a court of limited jurisdiction, it can take no power by implication. To be more specific, counsel argues, both orally and in brief, that the legislature must needs have used some language expressly granting jurisdiction to the criminal court; that it should have said: "The criminal court of Jackson county shall have jurisdiction to hear and determine all contested elections for the office of marshal of said county." We regard this contention as extremely hypercritical verbal criticism. There is no set form of words required to confer jurisdiction. To hold that this act was not a grant of jurisdiction because formal words, such as those above indicated, were omitted, would be sacrificing substance to form. The courts have held that, in the absence of constitutional requirement, no particular form of words is necessary. Our imperative duty is to ascertain, if possible, the intention of the legislature, from the language employed; and when we consider the clause, "All contested elections for said office shall be prosecuted and conducted before said court," we have no doubt whatever that it was the intention of the legislature to confer jurisdiction upon the criminal court of Jackson county to hear and determine all contests for this particular office. It was clearly competent for the legislature to create the office of marshal of Jackson county, and to provide a tribunal to hear and determine contests therefor; and having done so, in one and the same act, the jurisdiction thus conferred is exclusive, unless otherwise expressed or plainly manifested. "When, by a statute, a new right is given and a specific remedy provided, or a new power and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute." Sedg. St. & Const. Law, 343. This rule in no sense conflicts with the well-defined doctrine that the jurisdiction of a court of equity is not impaired by a statute conferring a jurisdiction upon other courts which has previously been exclusively equitable, unless the statute expressly takes away the jurisdiction from the chancery courts. Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035. Nor does it collide with that other general principle stated by Sedgwick in these words: "If a statute gives a remedy in the affirmative, without a negative, express or implied, for a matter which was actionable at common law, the party may sue at the common law, as well as upon the statute, for this does not take away the common-law remedy." Sedg. St. & Const. Law, 342; State v. Bittinger, 55 Mo. 596. A contested election is a purely statutory proceeding in Missouri, both as to the tribunal and the character of the proceeding, and was unknown at common law. As to this point, our conclusion is that the language of the act was amply sufficient to confer jurisdiction upon the criminal court of Jackson county to hear and determine said contest.

2. But, notwithstanding the grant of jurisdiction is plain enough, section 16 of the act of 1871 may still be inoperative as a law if it contravened the constitution when it was enacted, as is charged by the respondent's counsel. Section 32 of article 4 of the constitution of 1865, in force when this act was passed, is as follows: "No law enacted by the general assembly can relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not embraced in the title, such act shall be void only as to so much thereof as is not so embraced." The contention here, briefly stated, is that the title to this act of 1871, which is in these words: "County Officers; Marshal of Jackson County. An act establishing the office of marshal of Jackson county, and defining his duties and powers," — does not indicate an intention to confer jurisdiction upon any court to decide a contested election for said office, and hence said section is not a valid enactment. This provision of the constitution is mandatory, and was designed to correct a vicious system which then prevailed in legislative bodies, which often resulted in laws productive of fraud and plunder, of which the legislature had no notice until too late to remedy the wrong. This section has often been construed by this court, and it has been uniformly ruled that it should be given a liberal construction, "so as not to limit or cripple legislative enactments any further than was necessary by the absolute requirements of the law." State v. Miller, 45 Mo. 495. The general spirit of the cases is well illustrated by Sherwood, J., in State v. Blackstone, 115 Mo. 427, 22 S. W. 370, when he says: "The constitution does not require that the title to an act should descend to minute details, and thus anticipate the body of the act; it is sufficient if the title be so comprehensive as to embrace all matters incident and germane to the subject which the bill contains." A similar construction was put upon this section of the constitution in Lynch v. Murphy, 119 Mo. 170, 24 S. W. 774; State v. Bennett, 102 Mo. 364, 14 S. W. 865; State v. Bronson, 115 Mo. 276, 21 S. W. 1125; Ewing v. Hoblitzelle, 85 Mo....