State v. Summers

• Decision Date: 25 June 1928
• Docket Number: No. 16332.,16332.
• Citation: 9 S.W.2d 867
• Parties: STATE ex rel. WALLACE et al. v. SUMMERS, Justice of the Peace, et al.
• Court: Missouri Court of Appeals

9 S.W.2d 867

STATE ex rel. WALLACE et al. v. SUMMERS, Justice of the Peace, et al.

No. 16332.

Kansas City Court of Appeals. Missouri.

June 25, 1928.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Application for writ of prohibition by the State, on the relation of Gordon B. Wallace and others, against Charles E. Summers, Justice of the Peace for Blue Township, and another. Judgment granting the writ, and defendant named appeals. Affirmed.

Wm. C. Forsee and Forsee & Forsee, all of Kansas City, for appellant.

Ed E. Naber, F. E. Burroughs, Fred M. Roberts, S. M. Carmean, and George Kimbrell, all of Kansas City, for respondents.

ARNOLD, J.

In April, 1927, the circuit court of Jackson county, Mo., at Independence, granted a writ of prohibition in favor of respondent Gordon B. Wallace and 18 other persons similarly situated. Later the writ was made permanent, and the cause is before us on an appeal from that judgment.

A suit, based on a foreign judgment in favor of Olaf A. Johnson, commissioner of finance of the state of Wisconsin, was instituted against respondents herein in the court of a justice of the peace of Brooking township and by change of venue was lodged in the court of Charles E. Summers, a justice of the peace in and for Blue township in Jackson county, Mo. The Wisconsin judgment had been rendered against respondents by reason of their having previously been members, stockholders, or policyholders in a mutual insurance company which was in liquidation. All of the respondents were residents of Kaw township, Jackson county, Mo.

The first question for our consideration is, Has a justice of the peace for Blue township, Jackson county, Mo., jurisdiction over the subject-matter or the person of a defendant who resides in Kaw township in said county, except in actions by attachment? This brings us to a consideration of sections 2722 and 2726, R. S. 1919, the last as amended by the Laws of 1925, p. 172, and known as section 2726a. The section last named attempts to classify justices of the peace as salaried justices and fee justices. The Supreme Court in State ex rel. v. Pollock, 310 Mo. 620, 276 S. W. 20, declared such classification unconstitutional. Appellant argues this decision of the Supreme Court only struck out that part of the section which distinguished between salaried and fee justices, thereby allowing the remainder of the section to operate fully. We think, however, under the reasoning of the Supreme Court, the whole section was declared unconstitutional and that it is null and void. The section had no other purpose than to distinguish between salaried and fee justices, and the ruling of the court undoubtedly was intended to abrogate the entire section.

This brings us to the construction of section 2726, R. S. 1919. This section provides that all municipal townships which now contain a city of 100,000 inhabitants and less than 300,000, and in which justices of the peace are paid a salary, every action recognizable before a justice of the peace against a defendant residing in such township shall be brought before some justice of the peace of said township and none other; and any judgment rendered contrary thereto shall be null and void, except in actions by attachment as may now or hereafter be provided. It may be conceded that at the time of the passage of this section Kaw township, in which Kansas City is situated, was the only township affected. Since that time Kansas City has grown in population, and at the time this suit was filed had over 300,000, inhabitants. The question then presented is, Does a township grow out of a law by increase of population? The Supreme Court in State ex rel. v. Ryan, 232 Mo. 77, 133 S. W. 8, had before it the question as to whether or not the city of St. Joseph by a decrease of population dropped out of the provisions of a law similar to the section we now have under consideration. We must take judicial cognizance of the national census in State ex rel. v. Ryan, supra. In that case the court says, loc. cit. 93 of 232 Mo. (133 S. W. 14):

"If St. Joseph, the only large city making the law operate in Buchanan, has 77,000 inhabitants and that county can stay in the 100,000 class, then (as put by relator) although Springfield in Greene, Joplin in Jasper, or Sedalia in Pettis, might have the same population yet the counties of Greene, Jasper and Pettis would be effectually barred from the benefits of the statute. Thereby, we would have one law for one county and another law for another county of the same population, though population is the sole pretended basis of classification. Such construction with one stroke mutilates the symmetry and general scope of the law, makes it local in terms and application—in other words, the whole act perishes by construction. Therefore if there is any other reasonable construction we should take that in order the law may stand and not fall."

Again the court says, loc. cit. 93 of 232 Mo. (133 S. W. 14):

"There is another construction entirely consistent with the reason of the thing, which (unless we are constrained by the strict letter of the law) we should give; which is, that the statute opens automatically to let in (and out) of the same door those counties to which the law applies—the door swinging on a double hinge—in and out. That is, a county gets in, or stays in or goes up to a higher or down to a lower class all by virtue of the law. This view treats the situation, needing correction, as a continuous one. Such a construction, if allowable, is due to the lawmaking branch of the government, because it would be odious to assume that lawmakers (absent unmistakable evidence of the fact) intended to fly in the face of the unaccommodating sternness of the constitutional interdiction against special legislation."

As we read the Ryan Case we conclude that to construe the statute as holding within its terms only municipal townships, as of the time of the passage of the act, would render the act unconstitutional. Therefore we hold under this authority that a municipal township grows out of a law by reason of decrease in population as well as growing into a law by reason of increase in population. State ex rel. v. Ryan, supra; State ex rel. v. Williams, 310 Mo. 267, 275 S. W. 534; State ex rel. v. Turner, 210 Mo. 77, 107 S. W. 1064. Under authority of the Ryan Case from which we have quoted, we are compelled to hold that justices of the peace in Kaw township fall within the provisions of the general law. The general law allows suits to be brought in townships wherein the defendants (or one of them) reside, or in any adjoining township. Section 2722, R. S. 1919. We hold, therefore, that there was no excess of jurisdiction in bringing suit in the adjoining township and that Charles E. Summers had jurisdiction in this action.

This brings us to the second question as to the judgment of the circuit court of Milwaukee county, Wis. This is divided into two parts: First, can the...