State v. Slover

Decision Date31 March 1896
Citation34 S.W. 1102,134 Mo. 10
CourtMissouri Supreme Court
PartiesSTATE ex rel. KESHLEAR v. SLOVER, Circuit Judge.

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. 31 S. W. 1054, affirmed.

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. 31 S. W. 1054, affirmed.

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on the criminal court of Jackson county jurisdiction of contested election cases for marshal of that county, was not repealed by Rev.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." 31 S. W. 1054, affirmed.

Barclay, Sherwood, and Robinson, JJ., dissenting.

In banc. Application on 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. Decision of the court in division (31 S. W. 1054), allowing the writ to issue, affirmed by court in banc.

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

PER CURIAM.

The foregoing opinion (31 S. W. 1054) handed down in division No. 2 is adopted as the opinion of the court in banc. BRACE, C. J., and MACFARLANE and BURGESS, JJ., concurring with GANTT, P. J., therein. BARCLAY, SHERWOOD, and ROBINSON, JJ., dissenting. Writ of prohibition will therefore issue as therein directed.

BARCLAY, J. (dissenting).

The demand for a writ of prohibition is based on the theory that the local act of 1871, "establishing the office of marshal of Jackson county," etc., excludes the jurisdiction of the circuit court in a statutory contest for the said office. The plaintiff's case depends on the force possessed by the following provision of the sixteenth section of that act: "All contested elections for such office shall be prosecuted and conducted before said court [namely, the criminal court], as in cases of contested elections for the office of sheriff." Plaintiff claims that, because the act of 1871 is local, it continues in force, notwithstanding the later general law contained in section 4706, Rev. St. 1889, first enacted in 1879 as section 5528 of the revision of that year. Plaintiff construes the words "all contested elections," etc., in the marshal's act, as conferring an exclusive jurisdiction on the criminal court of Jackson county. Whether or not a general law repeals by implication an earlier special or local law touching the same topic is a question to be determined on ascertaining the intent of the legislation. Nusser v. Com. (1855) 25 Pa. St. 126; State v. Butcher (1894) 93 Tenn. 679, 28 S. W. 296; Bogardus v. Gordon (1894; N. J. Ch.) 30 Atl. 812. That intent is to be gathered from a variety of indications. A number of rules of interpretation, sanctioned by experience, point out the relative values of these indications. But if the interpreter becomes satisfied, from a careful view of the laws and of the history of the subject, that the general law was designed to supplant the local law, that result may properly be declared, as it has often been declared in this state and elsewhere. 23 Am. & Eng. Enc. Law, 426. It appears from a mass of local laws in force at various periods prior to the constitution of 1875 that it was a common practice, during that epoch of our state's history, to make special provisions for contesting elections for offices. We shall not attempt to give any extended list of statutes of that sort. Sufficient time is not at our command at present to permit a full examination of the session acts for that purpose. But a cursory glance at the small volume of annual laws (1871) in which appears the marshal's act of 1871, discovers several illustrations of that sort of legislation. See provisions for contest of election of judge of the criminal court of Jackson county (Laws 1871, p. 111, & 7), of probate judge of Bates county (Id. p. 113, § 4), of a similar office in Saline (Id. p. 121, § 4), and for recorder of Canton (Id. p. 140, art. 3, § 3). A similar glance at the laws in force at times prior to 1875 will show how great a number of offices, large and small, were the objects of special provisions in regard to contests in those days. We cite but a few examples, readily found. Some local laws on contests: Probate judge, Adair county (Laws 1846-47, p. 38, § 1); probate judge, Henry county (Laws 1848-49, p. 439, § 4); probate judge, Linn county (Laws 1852-53, p. 391, § 5); judge common pleas Louisiana (Id. p. 85, § 6); judge common pleas, Jackson county (Laws 1855-56, p. 61, § 6); probate judge, Platte county (Id. p. 91, § 5); probate judge, Clay county (Laws 1858-59, p. 326, § 5); judge, clerk, and prosecuting attorney, court criminal correction (Laws 1865, p. 78, § 3); probate judge, St. Louis (Gen. St. 1865, p. 70, § 85); judge common pleas, Johnson county (Laws 1867, p. 90, § 6); probate judge Pettis county (Laws 1873, p. 181, § 3); probate judge, Scott county (Id. p. 187, § 4); judge common pleas, Barry county (Laws 1874, p. 246, § 18); probate judge, Dallas county (Id. p. 280, § 3).

Many of these laws are, no doubt, obsolete, but they serve to illustrate the method of dealing with the subject in hand at the dates indicated by the citations. The constitution of 1875 had something to say on this topic: "The trial and determination of contested elections of all public officers, whether state, judicial, municipal or local, except governor and lieutenant-governor, shall be by the courts of law, or by one or more of the judges thereof. The general assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto; but no such law, assigning jurisdiction or regulating its exercise, shall apply to any contest arising out of any election held before said law shall take effect." Const. 1875, art. 8, § 9. With a knowledge of the state of the law disclosed by the statutes above cited it is not hard to divine the object of the section of the organic law of 1875, just quoted. Plainly, it was to bring the practice in election contests into some sort of order, and by establishing one harmonious system of procedure in the courts to subject those controversies to the control of the universal rules and principles of law. Section 4706 is a general law, enacted at the first revision of the statutes after the adoption of the constitution of 1875, and in compliance with its command. If it is not effective to confer jurisdiction on the circuit court of Jackson county in the contest here in view (because of the prior local law of 1871), then it is likewise ineffectual to confer jurisdiction on the circuit courts throughout the state in every case where some old local law can be resurrected which makes a different special provision for contesting some particular county office in dispute. The very object of the constitutional command aforesaid was to obtain a general enactment which would get rid of the confusion and uncertainty in the law of contests caused by the multitude of local provisions governing them. Much good can that proposed reform now accomplish when we find it held (as in this case) that the general law, passed in deference to the mandate of the people, is nevertheless inoperative to repeal the local and special laws on the subject it purports to cover! The obvious purpose of the constitution in taking up such a subject gives additional force to the rule stated by Judge Endlich, as follows: "An intention to supersede local and special acts may * * * be gathered from the design of an act to regulate by one general system or provision the entire subject-matter thereof, and to substitute for a number of detached and varying enactments one universal and uniform rule applicable throughout the state. Accordingly, it has been held that statutes fixing the terms of officers in certain counties are to be deemed repealed by implication by a general statute fixing the terms of office of that class of officers throughout the state." End. Interp. St. § 231. This rule has often been announced and applied in Missouri in cases where the intent to supersede some local by a general law was not so plain as it is in section 4706 and the accompanying sections on election...

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