Williams Lumber & Manufacturing Co. v. Ginsburg

• Decision Date: 04 January 1941
• Docket Number: 36858
• Citation: 146 S.W.2d 604,347 Mo. 119
• Parties: Williams Lumber & Manufacturing Company, a Corporation, Appellant, v. Harry H. Ginsburg and Clara Betty Karchmer Ginsburg
• Court: Missouri Supreme Court

146 S.W.2d 604

347 Mo. 119

Williams Lumber & Manufacturing Company, a Corporation, Appellant, v. Harry H. Ginsburg and Clara Betty Karchmer Ginsburg

No. 36858

Supreme Court of Missouri

January 4, 1941

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Affirmed.

F W. Barrett for appellant.

(1) When a statute is held unconstitutional. The unconstitutionality of a statute must appear beyond a reasonable doubt before it is so held by the courts. Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447; State ex rel. v. Terte, 23 S.W.2d 120. Every reasonable intendment should be made to sustain a legislative enactment. State v. Ward, 40 S.W.2d 1074. An act will be so construed if possible, as to avoid conflict with the Constitution. Sunderland, sec. 83, p. 133. Acquiescence in the validity of a statute for many years will give weight, if there is room for doubt. 1 Sunderland, p. 134; Nitzmann v. So. Ry. Co., 131 Mo. 612. (2) Section 3235, Revised Statutes 1929, is not in conflict with or in violation of Section 28 of Article 4 of the Constitution of the State of Missouri, by reason of its title when enacted in 1909, being insufficient to cover the act. The title to a bill need not refer literally to all details suggested by the general subject. State v. Ward, 40 S.W.2d 1074. Where a revision places an act or section under the wrong heading of the statute, the act is not affected thereby. Henning v Stald, 138 Mo. 430; State v. Kellmann, 123 S.W.2d 70. A title reciting that it is an act to amend a specified section of a prior statute, any legislation is proper which is germane to that section. Mayes v. United Garment Workers of America, 6 S.W.2d 333, 320 Mo. 10. On several amendments of an act, if the title to the original act is sufficient to embrace the matter contained in the amendatory act the sufficiency of the title of the latter act need not be inquired into. 59 C. J. 818; State ex rel. v Hackmann, 267 S.W. 608, 305 Mo. 685; St. Louis v. Tifel, 42 Mo. 590; State ex rel. Attorney General v. Ransom, 73 Mo. 78. If the title to the bill is general any legislation within or relating to that title is valid. Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447; Brown v. States, 323 Mo. 141, 19 S.W.2d 14. (3) The title to an act means that designation prefixed to an act by the Legislature which defines the character of the legislation and does not include attempted additional indicia added or the chapter or section heading. State v. Thomas, 256 S.W. 1028; 59 C. J., p. 799, sec. 376. (4) Object of the constitutional requirement of Section 28, Article 4. This court has repeatedly said that the principal purpose of this provision was to prevent surprise or fraud upon members of the Legislature by barring insertion in the body of the bill of something of which the title gave no intimation. Asel v. City of Jefferson, 287 Mo. 195; Young v. Greene County, 342 Mo. 1110.

Robert D. Durst and J. Weston Miller for respondents.

(1) Railroads have always been considered as a separate and distinct subject and class for legislative purposes. Williams v. A., T. & S. F. Ry. Co., 233 Mo. 678; Powell v. Sherwood, 162 Mo. 605. (2) Section 28, Article IV of the Constitution of Missouri is clear and unambiguous and provides: "No bill shall contain more than one subject, which shall be clearly expressed in its title." Section 3225, Revised Statutes 1929, contravenes the above mandatory provision of the Constitution of the State of Missouri, if applied to any other liens than those against railroads, in that the title to the act passing what is now the above section is restricted to legislation concerning railroads and not only does not encompass lien law as applied to anything else, but in fact would be directly and positively misleading as to the applicability of any act passed under such title with reference to anything except railroads. Sherrill v. Brantley, 66 S.W.2d 529. (3) The prefix, caption or other indicia as to the character of an act made in the office of the Secretary of State in compiling the publication of an act is no part thereof; nor does the place an act is put in the revised statutes affect its validity or change its applicability unless the entire act is reenacted by the Legislature itself as so revised. Appellant's brief sets out the same point here advanced and we therefore will not burden the court with any lengthy citations or quotations therefrom in connection herewith. Wilhite v. Rathburn, 61 S.W.2d 710; State v. Mauer, 255 Mo. 160. Where the headings to a chapter of the statutes, which are passed as one act, and form a part thereof as so passed by the Legislature, then they do have meaning and are inserted for the purpose of controlling and limiting the scope of the various articles of the chapter. People of the State of New York v. Molineux, 53 Barbour, 16; State ex rel. v. Hackman, 267 S.W. 611. (4) In the absence of a valid statute so permitting, the assignee of a mechanic's lien and materialman's lien cannot file and enforce a mechanic's lien thereon. Ittner v. Hughes, 154 Mo. 55; Little Rock Trust Co. v. So. Mo. & A. Ry. Co., 195 Mo. 669.

OPINION

Clark, J.

Appeal from the Circuit Court of Greene County. Plaintiff, as assignee of the claims of numerous persons for labor in the erection of a building, sued to enforce a mechanic's lien. The defendants filed a demurrer and the court sustained it on the ground that Section 3225, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3225, p. 5033), violates Section 28 of Article IV of the Missouri Constitution, as applied to the right of an assignee to sue on such claims as plaintiff asserts. Plaintiff appealed.

Section 28, Article IV, of our Constitution, reads:

"No bill . . . shall contain more than one subject, which shall be clearly expressed in its title."

Section 3225, supra, was enacted in 1909 (Session Acts of 1909, page 661), as House Bill No. 382, which reads as follows:

"An Act to amend Article IV of Chapter 47 of Revised Statutes of Missouri of 1899, entitled 'Liens of contractors, materialmen and laborers against railroads,' by repealing Section 4256, and enacting a new section in lieu thereof, as follows: . . .

"Be it enacted by the General Assembly of the State of Missouri, as follows:

"Section 1. Assigning and enforcing liens. -- That section 4256 of article four of chapter 47 of the Revised Statutes of Missouri of 1899 be and the same is hereby repealed and the following new section enacted in lieu thereof, to-wit: Section 4256. Any person or persons having claims for which they are entitled to liens under this chapter, may assign to any other person or persons all their right, title and interest in and to such claims, and the assignee thereof may file a lien or liens therefor, as provided in this chapter, and may bring suit in his own name, and include in such suit all claims assigned to him, and enforce such assigned lien or liens as fully as if such claims had been filed by the original claimant.

"Approved April 29, 1909."

We agree with appellant that it is our duty to so construe the Act, if possible, as to avoid conflict with the Constitution; and that we should not hold the Act invalid unless its unconstitutionality appears beyond a reasonable doubt. We also agree that if the title, though general, clearly expresses the purpose of the Act any legislation reasonably within the title is valid.

However, if the title is restrictive, the Act must also be restrictive and cannot include anything beyond the restrictive wording of the title. [Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312; Sherrill v. Brantley, 334 Mo. 497, 66 S.W.2d 529.]

The purpose of the constitutional provision above quoted is to prevent surprise or fraud upon the legislators by barring from the body of a bill everything not indicated by the title. [Williams v. Railroad, 233 Mo. 666, 136 S.W. 304.]

It requires no elaborate argument to convince us that a member of the General Assembly, looking to the title of House Bill No. 382, would conclude that the Bill pertained to liens against railroads only, and not to liens generally. If the title had merely referred to the numbers of the article chapter and section, we would have a different problem; but inclusion of the words, "liens of contractors, materialmen and laborers against railroads,"...