The State ex rel. Aull v. Field

• Decision Date: 05 February 1894
• Citation: 24 S.W. 752,119 Mo. 593
• Parties: The State ex rel. Aull, Appellant, v. Field, Judge, et al
• Court: Missouri Supreme Court

24 S.W. 752

119 Mo. 593

The State ex rel. Aull, Appellant, v. Field, Judge, et al

Supreme Court of Missouri

February 5, 1894

Appeal from Lafayette Circuit Court.-- Hon. E. J. Broaddus, Special Judge.

Affirmed.

William Aull, Wallace & Chiles, Shewalter & Wilson, Alexander GravesJohn S. Blackwell, William Young and John Welborn for appellant.

(1)The act of February 14, 1893, is void because the title is simply to repeal section 43 of the act of the extra session of April 7, 1892.The second section thereof, not being embraced in terms in the title, and the enactment of the new law fixing the terms of court not having a "natural connection with" and not being "an incident or means of accomplishing" the repeal of the then existing statute is void.It is admitted that the title of an act need not embrace all of the provisions of the bill -- such a requirement would destroy the object of the constitutional limitation -- and under a general head all the details germane to the title of the bill may be embraced in the bill.This is the gist and full extent of the authorities.Sutherland on Stat. Const., secs. 87, 88, 102;State ex rel. v. Schofield,41 Mo. 40;City v. Tiefel,42 Mo. 578;Ewing v. Hoblitzelle,85 Mo. 64, on page 70;Cooley's Const.Lim., t. p. 175;Allen v Louisiana,103 U.S. 80.(2)The act of February 14 1893, being unauthorized and void, as shown in point 1, supra, the act of April 19, 1893(Session Acts, 1893, pp. 141, 142) could neither repeal a nullity nor enact "a new section in lieu thereof," that is, in lieu of such nullity.A void law is the same as if it had never existed.Cooley's Const. Lim.[4 Ed.], p. 227;Strong v. Daniel,5 Ind. 344.(3)The act of April 19, 1893, was never constitutionally passed by the general assembly.The senate amendments to the bill as it came from the house were not referred to the supervising committee on engrossment as required by sections 27,29and30 of article 4, of the stateconstitution; nor did the house cause the senate amendments to be printed as required by said section 29.These sections, 27, 29 and 30, of article 4, of the constitution, all having direct reference to the mode and manner prescribed by that instrument for the passage of bills through the legislature should be read and construed together and are mandatory.State v. Burgdoerfer,107 Mo. 30.(4)The act of April 19, 1893, is a local and special law within the terms of section 53, article 4, of the constitution.First.It invests the judge of the fifteenth judicial circuit with special powers and imposes upon him duties not possessed or imposed upon the other circuit judges by general law.State v. Toole,71 Mo. 650;Ewing v. Hoblitzelle,85 Mo. 75;State ex rel. v. Shields,75 Mo. 341.Second.It is local in that it prescribes a different manner of establishing and maintaining the courthouse, clerk's and sheriff's offices at Higginsville from that provided by general law.Third.It is special and local in that it regulates civil practice in cases of changes of venue in certain cases.Fourth.It is local and special and violates section 53, article 4, of the constitution by regulating the affairs of the city of Higginsville, in directing the appropriation of its revenue.State ex rel. v. Pond,93 Mo. 606.(5)The act in question is unconstitutional, in that it is an attempted delegation of its powers by the legislature to Judge Field to appoint a "place" for the holding of a circuit court in Lafayette county.Cooley's Const. Lim.[5 Ed.], t. p. 116, and notes 1 and 2;Ibid.s. p. 121, 122."And whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subjection."Sec. 53, art. 4, Const. of Mo. Courts take judicial notice of census returns.State ex rel. v. County Court,89 Mo. 237;State v. Pugh,43 Ohio St. 98.Further as to local and special laws, seeSedgwick on Const. Constr.[2 Ed.], p. 629, note;Earle v. Board,55 Cal. 489;State ex rel. v. Judges,21 Ohio St. 1-11.Whether an act is local and special, or general, must be determined by its operation and effect and not by its form.Ibid.(6) Municipal taxes can only be used for municipal purposes, and an act of the legislature authorizing the appropriation of such taxes for state or county purposes, as in this case to support the judiciary by renting a courthouse in which the people of the county or state are equally interested, is the taking of one man's property for public use without just compensation, and the act is therefore void.Constitution of Mo., art. 10, sec. 1;Ibid., art. 10, sec. 2;Fiskkill v. Company, 22 Barbour, 634; Knoxville v. Lewis, 12 Lea, 180;Nashville v. Herbert Towns, 5 Sneed, 186;State ex rel. v. Leffingwell,54 Mo. 458;Wells v. City,22 Mo. 384;St. Charles v. Nolle,51 Mo. 122.(7) A judgment of the circuit court being void, no right could be founded on it.And for same reason, no right can be founded or built upon a void act of the legislature.Wernse v. McPike,76 Mo. 252;S. C., 100 Mo. 489;Ruggles v. Collier,43 Mo. 263;People ex rel. v. Cooper,83 Ill. at pp. 595, 596;Hinze v. People,92 Ill. 406;Connell v. People ex rel.,107 Ill. 384;State ex rel. v. Dousman,28 Wis. 541.(8)Judge Field, no more than special commissioners, could provide courthouse or impose liability on county to pay rent for same.State ex rel. v. Supervisors, 25 Wis. 339.

Samuel Davis and Leslie Orear for respondents.

(1)The act approved February 14, 1893(Session Acts, 1893, page 142), entitled "An act to repeal section 43 of the acts of 1892(extra session) approved April 7, 1892, entitled 'An act to re-district the state into judicial circuits and to fix the terms of courts therein,'" was not unconstitutional and void for want of a sufficient title.Const., art. 4, sec. 28;Ordronaux's Const.Leg., 608;People v. McCaur,16 N.Y. 58.(2) The word "repealed" is not necessarily to be taken in its most sweeping and absolute sense.Rex v. Rogers,10 East, 573;State v. Fiala,47 Mo. 310.(3) It is a question of construction whether a later act operates as a total or partial repeal of a prior one.Sedgwick on Constr. of Const. & Stat. Law, p. 129;Endlich on Inter.Stat., sec. 86.Repeals by implication are not favored.State ex rel. v. Draper,47 Mo. 29;State ex rel. v. Miller,100 Mo. 439;Anderson's Law Dictionary, p. 879.(4) The subject of the act of February 14, 1893, is single -- the subject of the act which it seeks to amend, or part of which it seeks to repeal, is the times and places of holding courts in the state of Missouri, restricted in this case to the courts mentioned in section 43 of said act.It was, in fact, an amendatory act and constitutional.State v. Addington,77 Mo. 110;Endlich on Interpretation of Statutes, sec. 181.(5)The act in question does not infringe the constitutional requirement that "no bill shall contain more than one subject, which shall be clearly expressed in the title."City v. Tiefel,42 Mo. 578;State v. Matthews,44 Mo. 523;State v. Miller,45 Mo. 495;State v. Bank,45 Mo. 508;Inre Burris, 66 Mo. 442;Hannibal v. Marion Co.,69 Mo. 571;State v. Chambers,70 Mo. 623;State ex rel. v. Mead,71 Mo. 266;State v. Ransom,73 Mo. 78;State ex rel. v. Laughlin,75 Mo. 388;State ex rel. v. Shepherd,74 Mo. 310;Ewing v. Hoblitzelle,85 Mo. 64;Bergman v. Railroad,88 Mo. 678;State ex rel. v. Dolan,93 Mo. 497.(6) In adopting a title the legislature may select its own language and may use few or many words; it is sufficient that the title fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated in the title.State ex rel. v. Miller,100 Mo. 445;State v. Burgdoerfer,107 Mo. at p. 29;Luther v. Saylor,8 Mo.App. 430;State v. Blackstone,22 S.W. 370.(7) It is immaterial in this case whether the act of February 14, 1893, was or was not constitutional.It is within the compass of the legislature to repeal an unconstitutional law.Such repealing law may protect rights acquired by those acting under their provisions.1 Sutherland on Constr. of Const. & Stat. Law, sec. 136;Southwark v. Com.,26 Pa. St. 446;Railroad v. Brick Co.,85 Mo. 307;Miller v. Dunn,72 Cal. 462;Gordon v. Coones,47 N.Y. 616.(8) The facts in evidence show that the provisions of the constitution were fully complied with in the passage of the bill.Lawson on Rights and Remedies, sec. 3769;Att'y Gen'l v. Rice,64 Mich. 385.(9)The constitution does not require a bill to preserve the same title through all its stages in both houses; an unessential, false description can never defeat a grant, contract or other instrument, nor would it defeat a statute.Railroad v. People,33 N.E. 173;Larrison v. Railroad,77 Ill. 11;Binz v. Weber,81 Ill. 288;Plumer v. People,74 Ill. 362;Walnut v. Wade,103 U.S. 683;Cantini v. Tillman,54 F. 969.(10) The point that the act in question imposes a duty on the judge of the Lafayette circuit court in addition, and different from, the powers imposed on the other circuit court judges by the general law is not tenable.State ex rel. v. Hughes,104 Mo. 459;State v. Orrick,106 Mo. 111.(11)The act is not void because it authorizes and requires the city of Higginsville to pay the rent of the courthouse and clerk's office.There is nothing in the constitution prohibiting such use of municipal funds, and enactments of similar character have been frequently upheld in this state.State ex rel. v. Hughes,104 Mo. 459;Hannibal v. Marion Co.,66 Mo. 571;St. Louis v. Shields,52 Mo. 351;State ex rel. v. Court,34 Mo. 546;Hamilton v. Court,15 Mo. 5.(12) With the above provision stricken out, there is enough in the act...