The State ex inf. Barrett v. Joyce

• Decision Date: 17 February 1925
• Docket Number: 26094
• Citation: 269 S.W. 623,307 Mo. 49
• Parties: THE STATE ex inf. JESSE W. BARRETT, Attorney-General, v. MICHAEL H. JOYCE
• Court: Missouri Supreme Court

269 S.W. 623

307 Mo. 49

THE STATE ex inf. JESSE W. BARRETT, Attorney-General, v. MICHAEL H. JOYCE

No. 26094

Supreme Court of Missouri

February 17, 1925

Writ denied.

Leslie J. Lyons and Forest W. Hanna for plaintiff.

(1) It is necessary to have legislative authority to legally elect justices of the peace in Missouri. Mo. Constitution, art. 6 sec. 37; Sec. 2688, R. S. 1919; Laws 1921, p. 242; 35 C. J. p. 454; 16 R. C. L. 331; State ex rel. Pettigrew v Pinger, 50 Mo. 486. (2) The General Assembly by its act approved March 28, 1921, repealed Sec. 2688, R. S. 1919, and enacted a new section in lieu thereof, which eliminated that specific provision thereof authorizing the election of justices of the peace from said township by districts. Laws 1921, p. 242.

James P. Aylward, George H. Combs, Jr., Julius Shapiro, John G Madden, Edward J. Curtin and John T. Barker for defendants.

(1) The Act of 1921, Laws 1921, p. 242, does not attempt to repeal that part of Section 2688 relating to the eight justices of the peace in Kaw Township. Stack v. Company, 223 S.W. 93; State ex rel. v. Patterson, 229 Mo. 364; 36 Cyc. 1107. (2) Sec. 2688, R. S. 1919, was in effect repealed on March 11, 1921, by Senate Bill No. 4, Laws 1921, p. 233; House Bill No. 653, Laws 1921, p. 242, if valid, became effective June 21, 1921. On June 18, 1921, Senate Bill No. 4 was suspended by the referendum and the subject-matter of such legislation was withdrawn from further action by the General Assembly, and House Bill No. 653 never became effective. State ex rel. Drain v. Becker, 240 S.W 229; State ex rel. v. Dallmeyer, 245 S.W. 1068. (3) Senate bill No. 4 and House Bill No. 653 relate to the same subject, were passed at the same session, and are in pari materia. House Bill No. 653 was not to become effective except in aid of Senate Bill No. 4. When Senate Bill No. 4 was referred and defeated, House Bill No. 653 became ineffective. State ex rel. v. Dallmeyer, 245 S.W. 1066; County v. Gordon, 241 Mo. 583; State ex rel. v. Chemical Works, 249 Mo. 702; Gantt v. Brown, 238 Mo. 560.

Ragland, J. All concur, except Walker, J., absent.

OPINION

RAGLAND

Quo warranto brought by the Attorney-General to test the title of defendant to the office of justice of the peace of Kaw Township, in Jackson County, Missouri. Defendant and seven others were duly elected as justices of the peace in and for said township at the general election held in 1922, for terms of four years. Defendant's title to that office, as well as that of each of the others depends solely upon whether the provisions of Section 2688, Revised Statutes 1919, under which the elections for justices of the peace in Kaw Township were held in 1922, had prior to that date been repealed.

Said Section 2688 is as follows:

"Each municipal township, except as otherwise provided by law, shall be entitled to two justices of the peace, to be elected and commissioned in the manner hereinafter provided; but in case there shall be in any such township an incorporated town or city having a population of over two thousand inhabitants, and less than one hundred thousand inhabitants, said town or city shall be entitled to one additional justice of the peace, who shall be a resident of such town or city; and in all municipal townships that now contain or may hereafter contain a city of one hundred thousand inhabitants, and less than three hundred thousand inhabitants, the county court of the county in which said city is located shall, on or before the first day of March, 1890, divide the said township into districts, not to exceed eight, as nearly equal in population as may be possible; and at the general election in 1890, and every four years thereafter, there shall be elected in each of said districts, by the qualified voters thereof, one justice of the peace, who shall possess the qualifications required by law for other justices of the peace, shall take the same oath, possess the same jurisdiction, and shall hold his office for four years and until his successor is elected and qualified, and who shall be a resident of and keep and maintain his office in the district for which he is elected. The persons now holding the offices of justices of the peace in townships affected by this article shall continue to perform the duties of their respective offices until the general election of 1890, at which time one justice of the peace for each district, as herein provided shall be elected, after which time there shall be no other justices of the peace in townships affected by this article, except as herein provided for."

The section in the form set out above was first enacted at the revising session of 1889. At the time of its enactment there was not a municipal township in the State which contained "a city of one hundred thousand inhabitants, and less than three hundred thousand inhabitants." Thereafter, and before March 1, 1890, the boundaries of Kaw Township were extended by the County Court of Jackson County so as to include all of Kansas City and thereby bring the township within the statutory classification above set forth. On February 24, 1890, the county court divided Kaw Township into eight justice of the peace districts and at the general election of 1890, there was, and every four years since that time there has been, elected in each of such districts one justice of the peace. No other township of the State was able to, or did, within the time limited, namely, March 1, 1890, bring itself within the classification, "municipal township that . . . contains . . . a city of one hundred thousand inhabitants, and less than three hundred thousand inhabitants." Consequently the provisions of Section 2688 with reference to such townships have at all times been limited in their application to Kaw Township, just as much so as though Kaw Township had been specifically named instead of a class. [State ex rel. v. Patterson, 229 Mo. 364; State ex rel. v. Mossman, 112 Mo.App. l. c. 459.]

At the regular session of the Legislature held in 1921, two companion bills, known as Senate Bill No. 4 (Laws 1921, p. 233) and Senate Bill No. 5 (Laws 1921, p. 234) respectively, were passed, each with an emergency clause; both were approved by the Governor on the same day, March 11, 1921. Section 1 of the first was as follows:

"On the first day of July, 1921, the offices of justices of the peace elected or appointed in districts in all municipal townships containing a city of one hundred thousand inhabitants and less than three hundred thousand inhabitants and the office of clerks to such justices shall be abolished, and all jurisdiction and powers then vested in such justices of the peace shall be transferred to, vested in and thereafter exercised by the justices of the peace to be appointed or elected to serve in townships that now have or may hereafter have not less than three hundred thousand inhabitants nor more than six hundred thousand inhabitants."

By Section 4 of the same Bill, Section 2688, Revised Statutes 1919, was amended by striking out all of it except the following:

"Each municipal township, except as otherwise provided by law, shall be entitled to two justices of the peace, to be elected and commissioned in the manner hereinafter provided; but in case there shall be in any such township an incorporated town or city having a population of over two thousand inhabitants, and less than one hundred thousand inhabitants, said town or city shall be entitled to one additional justice of the peace, who shall be a resident of such town or city."

Senate Bill No. 5 had for its purpose the creation of a sort of municipal justice-of-the-peace court for townships having a population of not less than three hundred thousand inhabitants nor more than six hundred thousand inhabitants. It provided that "at the general election of 1922, and every four years thereafter, there shall be elected at large in such townships five justices of the peace" and "the person designated and elected as the presiding justice of the peace, in addition to performing the ordinary duties of said justice of the peace, shall preside at all meetings of the justices of the peace for the township, and shall, in accordance with the rules adopted by the justices of the peace, classify, arrange and distribute the business thereof among the several justices of the peace, and in the disposition of such business shall exercise a superintending control over the officers of the court and their deputies," etc.

The census of 1920 showed that Kansas City, which territorially is Kaw Township, had a population of 324,410, hence Kaw Township fell within the class of townships dealt with by senate Bill No. 5.

At the same Session at which Senate Bills Nos. 4 and 5 were passed and immediately following their passage, a bill known as House Bill No. 653 was enacted. It was approved March 28, 1921. [Laws 1921, p. 242.] This act expressly repealed Section 2688, Revised Statutes 1919, and enacted a new section in lieu of it, to...