The State ex inf. Barrett v. Hedrick

• Decision Date: 29 April 1922
• Parties: THE STATE ex inf. JESSE W. BARRETT, Attorney General, ex rel. JAMES T. BRADSHAW, v. THOMAS J. HEDRICK, Respondent
• Court: Missouri Supreme Court

241 S.W. 402

294 Mo. 21

THE STATE ex inf. JESSE W. BARRETT, Attorney General, ex rel. JAMES T. BRADSHAW, v. THOMAS J. HEDRICK, Respondent

Supreme Court of Missouri

April 29, 1922

Writ denied.

Frank H. Farris and John I. Williamson for relator.

(1) Sec. 5995, R. S. 1919, is unconstitutional and void for the reason that it is a special law, based upon an arbitrary classification, and is made applicable to a single individual only, whereas a general law could have been enacted, and said section is therefore in violation of Section 53 of Article IV of the Constitution. Par. 32, sec. 53, art. 4, Mo Constitution; Secs, 3195, 3198, 5995, 9168, 9174, 9175, R. S 1919; State v. Logan, 268 Mo. 169; State ex rel v. Revelle, 257 Mo. 540; Moler v. Whisman, 243 Mo. 583; State ex inf. v. Southern, 265 Mo. 275; State ex rel. v. Perkins, 223 S.W. 406; State v Seehold, 192 Mo. 734; State ex rel. v. Miller, 100 Mo. 440-451; Henderson v. Koenig, 168 Mo. 356; State v. Baskowitz, 250 Mo. 82; State v. Mikoicek, 225 Mo. 561; Budd v. Hancock, 66 N. J. L. 133; State v. Kelsey, 44 N. J. L. 31; State v. Loomis, 115 Mo. 314; Hubbell v. Higgins, 148 Iowa 39; Johnson v. Gunn, 148 Cal. 749; State ex rel. v. Miller, 100 Mo. 448; State ex rel. v. Board of Curators, 268 Mo. 610; Black on Const. Law, p. 80; Cooley on Const. Limitations (7 Ed.) pp. 105, 106; 12 C. J. 716; State ex rel. v. Gordon, 245 Mo. 33; Consumer's League v. Ry. Co., 53 Colo. 54; Kane v. Ry. Co., 133 F. 681; Mo. Const., Art. 4, sec. 53, par. 32; R. S. 1919, sec. 9174. (2) Sec. 5995, R. S. 1919, is in conflict with Section 28 of Article IV of the Constitution, and is unconstitutional and void for the reason that the title to the act of which it is a part is fatally defective, in that it does not clearly express the subject of the act, nor does the title include within its scope and meaning any grant of power to the Governor to prefer charges, hold a hearing, make findings or remove the Warehouse Commissioner. State v. Sloan, 258 Mo. 313; State ex rel. v. Revelle, 257 Mo. 529; St. Louis v. Weitzel, 130 Mo. 616; City of Kansas v. Payne, 71 Mo. 162; State v. Great Western T. & C. Co., 171 Mo. 643; State v. Burgdoerfer, 107 Mo. 30; 1 Story, Constitution, sec. 451; State ex rel. v. Gordon, 233 Mo. 387; State v. Crites, 209 S.W. 863; Woodward Hardware Co. v. Fisher, 190 S.W. 576; Berry v. Majestic Mill. Co., 223 S.W. 738; State v. Rawlings, 232 Mo. 544; State ex rel. v. Wilder, 200 Mo. 97; Vice v. City of Kirksville, 217 S.W. 77; Bell v. First Judicial Dist. Ct., 28 Nev. 297; State v. Rawlings, 232 Mo. 558; Brooks v. Hydorn, 76 Mich. 278. (3) Sec. 5995 is void because in violation of Article III of the Constitution, in that it attempts to invest the executive department with judicial authority. Rhodes v. Bell, 230 Mo. 149; Laws 1921, p. 129, sec. 16; State v. Fry, 4 Mo. 192; Mechem on Public Officers, sec. 455, p. 289; State ex rel. v. Wells, 210 Mo. 610; State v. Frazier, 39 N.D. 444; State v. Eberhart, 116 Minn. 313; Atty.-General v. Jochin, 99 Mich. 358; Bailey on Hab. Corpus, sec. 173; 11 C. J. 108, 120; State v. Brunquist, 141 Minn. 308; State v. Common Council, 53 Minn. 238; In re Nash, 181 N.W. 570; Ekern v. McGovern, 154 Wis. 157; People v. Stuart, 74 Mich. 411; Dullam v. Willson, 53 Mich. 400; State ex rel. v. Pritchard, 53 N. J. L. 113; Page v. Hardin, B. Mon. (Ky.) 672; Commonwealth v. Slifer, 25 Pa. St. 28. (4) The socalled hearing before the Governor was so conducted by him as to constitute a denial to relator of the rights secured to him by Sec. 30 of Article II of the Constitution, and the attempted removal of relator from the office of Warehouse Commissioner was void for that reason. Wilcox v. Phillips, 260 Mo. 679; Farmers' Elev. Co. v. Ry. Co., 266 Ill. 572; State ex rel. v. Maroney, 191 Mo. 554; State ex rel. v. Denison, 90 Mo. 24; State ex rel. v. Work. Comp. Bureau, 180 N.W. 50; Mechem, Pub. Officers, sec. 454; Ekern v. McGovern, 154 Wis. 157; Hagerty v. Shedd, 75 N.H. 393.

John H. Lucas and Beardsley & Beardsley for respondent.

(1) Sec. 5995, R. S. 1919, is not enacted in violation of Section 53, Article IV, of the Constitution. Humes v. Railroad, 82 Mo. 221; State ex rel. Martin v. Wofford, 121 Mo. 69; Elting v. Hickman, 172 Mo. 257; State ex rel. Budd v. Hancock, 66 N. J. L. 133; R. S. 1909, secs. 11674, 5958, 5989, 5116, 5214, 6545, 5729, 5888, 6055, 12409, 12413, 12176, 12765; Secs. 9017, 715, 6707, 7976, par. 57, 12765; Miner's Bank v. Clark, 252 Mo. 29; State ex rel. v. Taylor, 224 Mo. 475; State ex rel. v. Fort, 210 Mo. 532; State ex rel. v. Yancy, 123 Mo. 401; State v. Whitaker, 160 Mo. 59; State v. Nelson, 52 Ohio St. 88; State ex rel. v. Gordon, 245 Mo. 31; Consumers' League v. Ry. Co., 53 Colo. 54; Kane v. Erie Railroad, 133 F. 685; State v. Tower, 185 Mo. 94; McEldowney v. Wyatt, 44 W.Va. 711; Carnegie Nat. Gas Co. v. Swiger, 72 W.Va. 557; Allen v. Smith, 84 Ohio St. 283; Pierce v. Van Dusen, 78 F. 703; McGuire v. Railroad, 131 Iowa 340; State ex inf. v. Southern, 265 Mo. 284; Humbolt v. Avery, 195 U.S. 480, 49 L.Ed. 286; Los Angeles v. Los Angeles Co., 117 U.S. 558, 44 L.Ed. 886. (2) Sec. 5995, R. S. 1919, is not in conflict with the provisions of Sec. 28, Art. IV, of the Constitution. Laws 1913, p. 354; Art. 2, ch. 60, R. S. 1909; Sec. 6773, R. S. 1909; State ex rel. v. Slover, 134 Mo. 10; State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Ranson, 73 Mo. 78; Booth v. Scott, 276 Mo. 1; City of St. Louis v. Rys. Co., 263 Mo. 387; Coffey v. Carthage, 200 Mo. 616; State ex rel. v. Williams, 232 Mo. 56; In re Blodgett, 27 Hun, 12; McPherson v. Blocker, 92 Mich. 377; Hardy v. Kingman Co., 65 Kan. 111; Beason v. Christian, 129 Ind. 535; Clark v. Finley, 93 Tex. 171; Lowe v. Bourbon Co., 6 Kan.App. 603; Treky v. Marye, 100 Va. 40; Rogers v. Morrill, 55 Kan. 737; Rehfield's Estate, 198 Mich. 249; Little Co. v. Hazen Co., 185 Mich. 316. (3) Section 5995 is not void as being in violation of Article III of the Constitution. It is not an attempt to invest the executive department with judicial authority. State ex rel. v. Wells, 210 Mo. 601; State ex rel. v. Burney, 269 Mo. 602; State ex rel. v. Hawkins, 44 Ohio St. 113; State ex rel. v. Hay, 45 Neb. 329; Wilson v. North Carolina, 169 U.S. 593; State ex rel. v. Ansel, 76 S.C. 395; Keenan v. Ferry, 24 Tex. 253; Cameron v. Parker, 2 Okla. 277; State v. Burke, 8 Wash. 412; State ex rel. v. Grant, 14 Wyo. 41. (4) The proceedings before the Governor are under and in accordance with the provisions of the law; and it will not be permissible in this action of quo warranto, or any other action, to interfere with the result thereof. State ex rel. v. Stone, 120 Mo. 428; Albright v. Fisher, 164 Mo. 56; State ex rel. v. Allen, 180 Mo. 31; State ex rel. v. Wells, 210 Mo. 601; Germaine v. Ferris, 176 Mich. 585; Shipman v. State Live Stock Comm., 115 Mich. 488; State ex rel. v. Townsend, 30 Del. 19; State ex rel. v. Huston, 27 Okla. 606; Rice v. Draper, 207 Mass. 577; Huidekoper v. Hadley, 177 F. 12; State ex rel. v. Meier, 143 Mo. 439; State v. Ansel, 76 S.C. 395; People v. Morton, 156 N.Y. 136; State ex rel. v. Shepherd, 179 Mo. 236; State ex rel. v. Crandall, 269 Mo. 57; State ex rel. v. Shields, 272 Mo. 342; 12 C. J. 894, 899; Louisiana v. McAdoo, 234 U.S. 633, 58 L.Ed. 1506.

HIGBEE, J. Higbee, David E. Blair and Elder, JJ., concur; James T. Blair, C. J., concurs in separate opinion, in which Higbee, David E. Blair and Elder, JJ., concur; Woodson, J., dissents in separate opinion in which Walker, J., concurs; Graves, J., dissents in separate opinion, in which Walker, J., concurs.

OPINION

In Banc.

Quo Warranto.

HIGBEE J.

This is an information in the nature of a quo warranto by the Attorney-General at the relation of James T. Bradshaw, charging that the respondent usurped, intruded into and unlawfully holds the office of warehouse commissioner, and praying judgment of ouster against the respondent. Respondent waived the issue of the writ, entered his appearance in this action, and filed his return, in which he pleads the action of the Governor removing relator from office, and his appointment, confirmation and qualification. Relator filed his reply, pleading that Section 5995, Revised Statutes 1919, under which he was removed by the Governor, is violative of the Constitution in several respects and that he was not afforded a hearing as required by that section, so that his removal amounted to a denial of due process of law.

The case was submitted upon the following stipulation:

"1. It is admitted that the notice given by the Governor of Missouri to said Bradshaw, notifying him of the time and place when certain charges against him would be heard, was as follows:

"'NOTICE.

"'Honorable James T. Bradshaw,

"'Warehouse Commissioner of Missouri,

"'Jefferson City, Missouri.

"'Dear Sir:

"'Take notice that by virtue of authority conferred upon me by Section 5995, Revised Statutes of Missouri, 1919, and for the purpose of removing you from the office of Warehouse Commissioner, I, Arthur M. Hyde, Governor of Missouri, have made charges of inefficiency, neglect of duty, and misconduct in office against you as such Warehouse Commissioner, a copy of which charges are hereto attached and made a part of this notice.

"'You are hereby given notice that on the 11th day of June, 1921 at the office of the Governor, in the City of Jefferson, at the hour of ten o'clock a. m. you may appear in person or by counsel to be publicly heard to make defense, if any defense you have, against the said charges of inefficiency, neglect of duty and misconduct in office. You will govern yourself accordingly.

"'Given under my hand at the office of the Governor, in the City of Jefferson, this 28th day of May, 1921.

"'Arthur M. Hyde, Governor.'

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