The State ex rel. Garvey v. Buckner

• Decision Date: 23 May 1925
• Docket Number: 25787
• Parties: THE STATE ex rel. ROY B. GARVEY v. THOMAS B. BUCKNER, Judge of Circuit Court of Jackson County, Criminal Division C
• Court: Missouri Supreme Court

272 S.W. 940

308 Mo. 390

THE STATE ex rel. ROY B. GARVEY v. THOMAS B. BUCKNER, Judge of Circuit Court of Jackson County, Criminal Division C

No. 25787

Supreme Court of Missouri

May 23, 1925

Preliminary rule discharged.

Charles M. Howell, Daniel V. Howell, C. P. LeMire, E. M. Tipton Joseph S. Brooks and M. E. Casey for relator.

(1) The act of March 11, 1921, purporting to abolish the criminal court of Jackson County, the offices of judges and clerks thereof, the office of marshal of Jackson County, and revesting jurisdiction, powers and duties (Laws 1921, p 220), is unconstitutional and void: because in contravention of Section 28, Article IV, Constitution, providing that "no bill . . . shall contain more than one subject which shall be clearly expressed in its title." The bill contains many subjects. They are: (a) The abolishment of the criminal court of Jackson County; (b) the abolishment of the offices of judges of that court; (c) the abolishment of the offices of clerks of that court; (d) the abolishment of the office of marshal of Jackson County; (e) vesting of jurisdiction of the criminal court in the circuit court and transferring business thereof to said circuit court; (f) providing for appeals and writs of error to the Supreme Court and Kansas City Court of Appeals and the remanding of cases from said appellate courts; (g) providing for the transfer of records, dockets, etc., in the office of the clerk of the criminal court to the office of the clerk of the circuit court, and providing new duties for the clerk of the circuit court; (h) providing that the judges of the Sixteenth Judicial Circuit shall assign one or more of their number, who shall sit separately for the trial of criminal cases (Sec. 7); (i) providing for the summoning of grand juries at each term of court (Sec. 7); (j) providing new duties for the Prosecuting Attorney (Sec. 8); (k) providing that the judges of the circuit court shall adopt rules and regulations necessary or expedient to carry the act into effect. State v. McEnery, 269 Mo. 228; State ex rel. v. Roach, 258 Mo. 560; State v. Cantwell, 179 Mo. 260; State ex rel. v. Vandiver, 222 Mo. 219; State v. Miller, 45 Mo. 495; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Miller, 100 Mo. 439; State ex rel. Kirkwood v. Heege, 135 Mo. 112; Elting v. Hickman, 172 Mo. 237; State ex rel. v. Gideon, 210 S.W. 359; State v. Sloan, 258 Mo. 305. (2) The law is incongruous in that it omits to provide any method for the selection of juries or grand juries. Article IV of Chapter 53, sections 6672-6702 inclusive, provides for the method of selecting juries and grand jurors. State v. Miller, 45 Mo. 495; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Miller, 100 Mo. 439; State ex rel. Kirkwood v. Heege, 135 Mo. 112; Elting v. Hickman, 172 Mo. 237; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Drabelle, 258 Mo. 568; State ex rel. v. Vandiver, 222 Mo. 206; State ex rel. v. Gideon, 210 S.W. 359; State v. Sloan, 258 Mo. 305. See Secs. 6662, 6700, 6701, R. S. 1919 (amended by Laws 1921, Ext. Sess.) 73. (a) The sections of the statute as to grand jurors requires, that they shall be selected by the judge of the criminal court -- a court has no jurisdiction to impanel a grand jury except in accordance with the statute. 17 Am. & Eng. Ency. Law, 1262. (b) Courts cannot supply omissions or mistakes of the Legislature, or enlarge the scope of a statute. United States v. Railroad, 91 U.S. 85; Hobbs v. McLean, 117 U.S. 579; State ex rel. v. Wilder, 206 Mo. 549; State ex rel. v. Riley, 203 Mo. 187; U.S. v. Goldberg, 168 U.S. 103. (3) The Act is unconstitutional and void because it is a local or special law within the meaning of Sec. 53, Article IV, Constitution, providing that the General Assembly shall not pass any local or special law (Par. 2), regulating the affairs of counties, cities, townships, wards or school districts (Par. 2); changing the venue of civil or criminal case (Par. 15); creating offices or prescribing the powers and duties of officers in counties, cities, townships, election or school districts (Par. 17); regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, etc. (Par. 30); summoning or empaneling grand or petit juries. State v. Logan, 268 Mo. 169; State ex rel. v. Roach, 258 Mo. 561; State v. Anslinger, 171 Mo. 611; State v. Hill, 147 Mo. 67; State v. Kring, 74 Mo. 612; Ex parte Allen, 67 Mo. 534; State ex rel. v. Messerly, 198 Mo. 351; Wooley v. Mears, 225 Mo. 41. (4) The Act is unconstitutional because it changes the practice in appeals and writs of error without complying with Sec. 34, Art. IV, Constitution. (5) The Circuit Court of Jackson County is without jurisdiction of the cause of the State of Missouri v. Roy Garvey, because no such case had been filed in the Circuit Court of Jackson County, the fact being that the prosecuting attorney attempted to file the case in the Circuit Court of Jackson County by filing the same in Division 8 of the Circuit Court of Jackson County, then designated Criminal Division A, by reason of which neither the Circuit Court of Jackson County nor Division No. 8, so designated Criminal Division A, nor Division No. 9, nor Division No. 1, acquired any jurisdiction of the case of State v. Garvey. Secs. 2452, 2453, 2454, R. S. 1919; Act March 11, 1921, Laws 1921, p. 202; Goddard v. Delaney, 181 Mo. 581; State ex rel. v. Eggers, 152 Mo. 487; Hachl v. Wabash Ry., 119 Mo. 337; Cole v. Horton, 251 S.W. 723; Title Guaranty & S. Co. v. Drennon, 208 S.W. 474; Meierhoffer v. Hansel, 294 Mo. 204; In re Ward Parkway, 188 Mo.App. 579. (6) The jurisdiction in question is jurisdiction of subject-matter and cannot be conferred by consent or waiver. Meierhoffer v. Hansel, 294 Mo. 204; Title Guaranty Co. v. Drennon, 208 S.W. 474; State v. Bulling, 100 Mo. 91. (7) Even though Division No. 9, sitting as Criminal Division A, had acquired jurisdiction of said cause, its transfer to the respondent judge of Division No. 1 purporting to sit as Criminal Division C, was without authority and in conflict with Rules 46 and 48, of the Rules of the Circuit Court of Jackson County, Missouri, and conferred no jurisdiction upon respondent. Secs. 2452, 2454, R. S. 1919. (8) The alleged rules pleaded by respondent in his return do not confer any jurisdiction on Division 1. (a) They were not of record nor in existence when the transfer from Division No. 9 to Division No. 1 was attempted. A record purporting to show the alleged rules has been written up since the relation was begun in this honorable court. Rules can exist only of record, and can have no effect until recorded. Owens v. Ranstead, 22 Ill. 171; Burlington Railroad Co. v. Marchland, 5 Iowa, 471; McDonald v. State, 172 Ind. 395; 7 R. C. L. par. 53, 1026; Davis v. Railroad, 170 Ill. 595; Magnuson v. Billings, 152 Ind. 177; Chicago Ry. Co. v. Gregory, 123 Ill.App. 259; Ruby v. Title Co., 166 Ill. 336; Anderson Brick Co. v. Subbourik, 148 Ill. 586; 15 C. J. 907. (b) The alleged rules, even if existing, do not repeal or modify Rules 46 and 48. They are to be construed as a harmonious whole. Under both sets of rules, the cause should have gone to Criminal Division B (Division No. 5), not to respondent (Division No. 1). Stump v. Hornback, 94 Mo. 28; 36 Cyc. 1129; State ex rel. v. Board of Trustees, 192 Mo.App. 589; Strathman v. Railroad Co., 211 Mo. 251.

J. C. Rosenberger and William S. Hogsett for respondent.

(1) A statute will only be declared unconstitutional unless it clearly appears to be so beyond a reasonable doubt. State v. Hedrick, 294 Mo. 63; Ewing v. Hoblitzelle, 85 Mo. 69; Forgrave v. Buchanan Co., 282 Mo. 604; Wire Co. v. Wollbrinck, 275 Mo. 350; Greene County v. Lady, 263 Mo. 87; Board of Comms. v Peter, 253 Mo. 530; State ex rel. v. St. Louis, 241 Mo. 247; State ex rel. v. McIntosh, 205 Mo. 602; Ex parte Loving, 178 Mo. 203. (2) There is only one subject in the title of the Act, "the administration of justice in Jackson County;" and all of the provisions of the act are germane to that subject. Coca Cola Bottling Co. v. Mosby, 289 Mo. 472; State v. Mullinix, 301 Mo. 389; State ex rel. v. Hedrick, 294 Mo. 43; St. Louis v. U. Rys. Co., 263 Mo. 452; Ex parte Karnstrom, 297 Mo. 391; Ex parte Hutchens, 296 Mo. 338; Forgrave v. Buchanan Co., 282 Mo. 605; State ex rel. v. Hackmann, 292 Mo. 31; Coffey v. Carthage, 200 Mo. 622; State ex rel. McClintock v. Guinotte, 275 Mo. 317; State ex rel. v. County Court, 128 Mo. 441; Lynch v. Murphy, 119 Mo. 169; Ferguson v. Gentry, 206 Mo. 198; Elting v. Hickman, 172 Mo. 252; State ex rel. v. Gordon, 261 Mo. 640; State ex rel. v. Vandiver, 222 Mo. 219; Ewing v. Hoblitzelle, 85 Mo. 70; State v. Miller, 45 Mo. 497; O'Brien v. Ash, 169 Mo. 299; In the Matter of Burris, 66 Mo. 466; State ex rel. Attorney General v. Mead, 71 Mo. 268; State v. Doerring, 194 Mo. 398; O'Connor v. St. Louis Transit Co., 198 Mo. 622; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Drabelle, 258 Mo. 568; St. Louis v. Wortman, 213 Mo. 131; State ex rel. v. Wiethaupt, 231 Mo. 449; Burge v. Railroad, 244 Mo. 76; State ex rel. v. Buckner, 300 Mo. 367; Asel v. City of Jefferson, 287 Mo. 203; Murrell v. Railroad, 279 Mo. 104-105. (3) The act is not a local or special law within the meaning of Sections 53 and 54, Article IV, Constitution, and does not violate those constitutional provisions. State ex rel. Hughlett v. Hughes, 104 Mo. 459; State ex rel. v. Yancy, 123 Mo. 391; State v. Etchman, 189 Mo. 648; Coffey v. Carthage, 200 Mo. 616; State ex rel. Judah v. Fort, 210 Mo. 512; State v. Orrick, 106 Mo. 111; State ex rel. v. Field, 119 Mo. 611; Ex parte Renfrow, 112 Mo. 591; State ex rel. v. Dabbs, 182 Mo. 359; Guy v. Railroad, 197 Mo. 174...