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having a population exceeding 50,000, contemplate that the Legislature, except as restricted, will make appropriate provisions for the establishment of criminal courts as the necessities of the case may require, an act creating a criminal court for a county having a population exceeding 50,000 is not obnoxious to article 4, § 53, subd. 32, prohibiting the passage of any special law where a general law can be made applicable.

2. SAME-IMPOSITION OF SPECIAL BURDENS ON OFFICERS AND TAXPAYERS-EFFECT.

An act creating a criminal court for a county is not void because it imposes special duties on the sheriff and clerk of the court, and incidental expenses to the county; the power to provide for the necessary incidents of the court being implied from the power to establish it.

Error to Criminal Court, Buchanan County; B. J. Casteel, Judge.

Gabe Etchman was convicted of crime, and he brings error. Affirmed.

On the 4th of April, 1903, the grand jury of Buchanan county, Mo., returned an indictment against the plaintiff in error, charging him with setting up in said county on March 31, 1903, certain gambling tables and devices, two of which were a chuck-a-luck table and a crap table. On arraignment on April 6, 1903, a plea of not guilty was entered, which was withdrawn on June 27th, and a plea of guilty entered in its stead. Thereupon the court assessed the punishment at six months in the county jail. A motion in arrest of judgment was filed, but the record is silent as to any disposition of said motion. On August 12, 1904, a writ of error was sued out in this court, and the clerk of the lower court, in obedience thereto, has forwarded a certified copy of the record proper in said cause, which is now before the court for consideration.

Charles C. Crow, for plaintiff in error. H. S. Hadley, Atty. Gen., and Frank Blake, for the State.

FOX, J. (after stating the facts). The same questions, with the exception noted, involved in this case, were decided by this court in State v. Rosenblatt, 83 S. W. 975, and State v. Etchman, 83 S. W. 978, except the one proposition now presented in this case, as to the constitutionality of the act creating the criminal court of Buchanan county. The act creating the criminal court of Buchanan county will be found in Rev. St. 1899, p. 2568, § 1. It provides: "Pursuant to sections 1 and 31 of article VI of the Constitution, and to a notice [set out in full] a court of record is hereby established in the county of Buchanan, said county having a population exceeding 50,000 inhabitants, and to be designated and called the Criminal Court of Buchanan County."

There is but one proposition presented in the record in this cause, and that is embraced in the contention of plaintiff in error that the act as herein noted, establishing the Buchanan county criminal court, is void and unconstitutional. The grounds upon which this contention is predicated may be briefly stat

ed as follows: (1) Because it is in conflict with subdivision 2 of section 53, art. 4, of the Constitution, which provides: "The General Assembly shall not pass any local or special law * .* * regulating the affairs of counties, cities, townships, wards or school districts." (2) Because it is in conflict with subdivision 15, § 53, art. 4, providing that no local or special law shall be passed "creating offices, or prescribing the powers and duties of officers in counties, townships, election or school districts." (3) Because it is in conflict with subdivision 17, § 53, art. 4, of the Constitution, providing that no local or special law shall be passed "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, commissioners, arbitrators, or other tribunals, or providing or changing method for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate." (4) Because it is in conflict with subdivision 32, § 53, art. 4, of the Constitution, which prohibits the passage of any local or special law "where a general law can be made applicable; and whether a general law could have been made applicable in any case is hereby declared a judicial question."

Learned counsel for plaintiff in error has presented the question involved in this controversy in its strongest light, and it is not out of place to say that about all has been said in his oral argument and brief now before us that can be said upon this proposition, yet, after a careful consideration of all the authorities, we are unable to give our assent to the contention so ably presented by counsel.

The origin of the power in the legislative branch of the government of this state to create and establish criminal courts is found in section 1, art. 6, of the Constitution, which provides: "The judicial power of the state, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in the Supreme Court, the St. Louis Court of Appeals, circuit court, criminal courts, probate courts, county courts and municipal corporation courts." Following this provision of the Constitution, we find that section 31, art. 6, of the Constitution, places a limitation upon the power of the General Assembly to establish and create criminal courts. It provides: "The General Assembly shall have no power to establish criminal courts except in counties having a population exceeding 50,000." It is apparent that while section 31, art. 6, as above noted, limits the power of the General Assembly in respect to the establishment of criminal courts, yet it is equally clear that it fully recognizes the power of the General Assembly to establish such courts in counties having the required population. We have, then, as applicable to the proposition now under consideration, first, a constitutional provision vesting the judicial

power of the state in certain designated courts among them, criminal courts; secondly, by a provision in the same Constitution, we have a full and express recognition of the power of the General Assembly to establish criminal courts in counties having a population exceeding 50,000. The act of the General Assembly establishing the Buchanan county criminal court was enacted in pursuance of the constitutional provisions above referred to, and the fair and reasonable interpretation of such provisions, as applicable to the grant of power to the General Assembly to pass the act creating such court, must furnish the solution of the proposition now confronting us.

This leads us to inquire as to what rule of construction should be adopted in the interpretation of the constitutional provisions involved in this proceeding. After diligent search, we are unable to find any rule which is more practical than the one announced by that eminent jurist and author, Mr. Story, in his work upon the Constitution. He thus states it: "Every word employed in the Constitution is to be expounded in its plain, obvious, and common-sense meaning, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss." 1 Story, Const. § 451. The General Assembly of this state, fully recognizing the power granted by the organic Iw of this state to create and establish criminal courts, in harmony with the rule as announced by Mr. Story, proceeded in a practical way to exercise such power, and put the constitutional provisions into full force by the creation and establishment of the Buchanan county criminal court, which county, it is conceded, had a population of more than 50,000.

It is insisted by plaintiff in error that the act creating the Buchanan county criminal court is a local or special law, and is in conflict with subdivision 32 of section 53, art. 4, of the Constitution, which prohibits the passage of any local or special law where a general law can be made applicable. In other words, to restate the contention in this cause, it is urged that the only way in which the General Assembly can exercise the power recognized by the Constitution to establish criminal courts is by an enactment establishing and creating criminal courts in every county in the state having a population of more than 50,000. We are unable to agree

with counsel upon this insistence. We are unwilling to believe that the framers of the Constitution, in recognizing the power of the General Assembly to establish criminal courts in counties having a population of more than $50,000, meant to say to the lawmaking power that "you can only exercise this power providing you establish a criminal court in every county in the state possessing the required population, regardless of any local conditions or demands for the establishment of such courts." If section 31, art. 6, of the Constitution, is to be given a reasonable and practical interpretation, the power recognized in the General Assembly to establish criminal courts in counties having a population exceeding 50,000 does not necessarily mean that the Legislature, in the exercise of such power, must include every county in the state. The presumption must be indulged that the framers of the Constitution could foresee the common wants of the people of this state, and that there would be in some counties large and populous cities, and a demand for the creation of separate criminal courts, while in other counties of the required population, purely agricultural, with small cities and villages, there would be no need or demand whatever for a separate criminal tribunal. That is the only practicable and reasonable construction that can be given the provisions of the Constitution now under consideration. To hold otherwise would not be in harmony with the rule indicated by Mr. Story, for if, in pursuance of the powers recognized by the Constitution, the General Assembly must establish criminal courts, if at all, in every county in the state, regardless of any need or demand for them, then such provision would fall far short of being of that "practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings."

Buchanan county had a population of more than 50,000, and the act assailed in this proceeding, creating the Buchanan county criminal court, was simply appropriate legislation, in the exercise of a recognized power by the Constitution, and which the Constitution, by its terms, contemplated would be exercised by the General Assembly, and therefore cannot be held to be either special or local, within the true intent and meaning of the Constitution. In Kenefick v. City of St. Louis, 127 Mo. 10, 29 S. W. 841, Barclay, J., very clearly and concisely announced the true rule as to legislation of this character. He said: "Legislation which is necessary or appropriate to carry into effect a positive command of the organic law, or is required or directly contemplated by its terms, cannot justly be held to be either special or local, within the true intent and meaning of the Constitution. Legislation of that description is, indeed, merely the machinery to put the Constitution into full force." To the same effect is Spaulding v. Brady, 128 Mo., loc.

cit. 658, 31 S. W. 104, McFarlane, J., speaking, fully responded to the contentions of counsel for the court in that case, said: "The doc- in that case. In discussing the proposition, trine has been recognized by this court that he said: "The act in question is in no sense legislation which is authorized by the Con- special or local, within the meaning of the stitution itself cannot be regarded as local Constitution, because of the fact that it or special, within the meaning of the con- creates a court at one particular location. stitutional prohibition, though its applica- The same could as well be said with respect tion is purely local. State ex rel. v. Walton, to all other courts in the state, to which all 69 Mo. 556; Kenefick v. St. Louis, 127 Mo. 1, persons, without regard to habitation, appeal 29 S. W. 838, and cases cited. The principle for the redress of wrongs done them, and the contained in the observation of Judge Lewis adjustment of their rights. The court creatin State ex rel. v. Shields, 4 Mo. App. 259, ed by the act in question has original juristhat no law can be either local or special, diction of all crimes committed within the within the meaning of the Constitution, county of Greene, as well, also, as of any which results directly or indirectly from a criminal case that may be taken thereto by specific constitutional requirement,' is the change of venue from any other court in the sound basis upon which these decisions rest." state having criminal jurisdiction, it matters The command of the Constitution is that the not where it may be. Its judge is commisjudicial power of the state shall be vested in sioned and paid by the state, and, it matters certain courts, including criminal courts. not where the court may be held, it is a This requirement contemplates that the leg- criminal court for the state-as much so as islative branch of the state government will the criminal court of St. Louis, Kansas City, make appropriate provisions in creating and or St. Joseph." During the course of the establishing courts in which such judicial opinion, emphasizing the correctness of the power is to be vested. "No law can be either conclusions reached as to the validity of the special or local within the meaning of the act assailed, the principles as applicable to Constitution, which results directly or indi- the interpretation of the act were clearly rectly from a specific constitutional require- stated. It was said: "Whether an act of the ment." Ewing v. Hoblitzelle, 85 Mo. 64; Legislature be a local or general law must State ex rel. v. Shields, 4 Mo. App. 259; be determined by the generality with which Whallon v. Gridley, 51 Mich. 503, 16 N. W. it affects the people as a whole, rather than 876. "Nor can the efficient operation of the the extent of the territory over which it opfunctions of a department of the state gov- erates; and, if it affects equally all persons ernment be in any manner subject to the who come within its range, it can neither be control or dependent upon the action of the special nor local, within the meaning of the citizens of any particular locality in the state. Constitution. Moreover, the general power In the nature of things, the act in question of the Legislature to establish criminal courts is not, and cannot be, a special or local law." in counties having a population exceeding State ex rel. Hughlett v. Hughes, 104 Mo., fifty thousand is clearly recognized by secloc. cit. 470, 16 S. W. 490. tion 31, art. 6, of the Constitution, as by prohibiting the establishing of criminal courts in such counties, by express terms, having a population of less than fifty thousand people, is a recognition of the power to establish them in counties having a populationtion exceeding fifty thousand. When there is a specific grant of power conferred by the Constitution upon the Legislature upon any certain or particular subject, an act passed in pursuance of such grant will not be held unconstitutional upon the ground that it is local or special legislation. State ex rel. v. County Court, 50 Mo., loc. cit. 324, 11 Am. Rep. 415; State ex rel. v. Watson, 71 Mo. 470; Ewing v. Hoblitzelle, 85 Mo. 64. The fact that notice was given of the intended application to the Legislature for the passage of a law creating the court in question, and of a court similar in all respects in Buchanan county, did not change the law, and was in all probability done through an abundance of caution-certainly not because it was a necessary prerequisite." This case was approvingly quoted in Kenefick v. St. Louis and Spaulding v. Brady, supra. We are of the opinion that the law was correctly announced in the Yancy Case, and see no legal reason for departing from the conclusions

The proposition involved in this case is by no means a new one. The precise question here presented has been in judgment before this court. In Ex parte Renfrow, 112 Mo. 591, 20 S. W. 682, the constitutionality of the creation of the criminal court of Greene coun

ty was challenged. While the proposition in the

the briefs of counsel, nor was the question fully reviewed by this court in the decision of that case, however, it was suggested in the briefs that the act establishing the Greene county criminal court was violative of the provisions of the Constitution in regard to special legislation. Responding to that suggestion, this court said: "There is nothing in the suggestion that the act in question is obnoxious to the provisions of the Constitution in regard to special legislation. The Legislature plainly has power to provide for a criminal court in any county of the state having a population exceeding fifty thousand." In State ex rel. v. Yancy, 123 Mo. 391, 27 S. W. 380, the constitutionality of the act creating the Greene county criminal court was directly involved. The question was fully presented in the briefs of counsel. This court, speaking through Burgess, J.,

therein reached. The criminal court of Buchanan county is by no means a mere county court. As was said in State ex rel. Hughlett v. Hughes, "It is pre-eminently a state court, affecting in its operations all the citizens of the state; deriving its power directly from the organic law of the state, and law passed by the Legislature in pursuance thereof." While it may be said that the territory in which the court is held is limited, every citizen of the state is interested in the administration of the law, and the offenses of which the court has jurisdiction are those, presumptively, that affect the peace and dignity of the entire state. It is in truth and in fact a criminal court of the state of Missouri, and in no sense is it to be classed as a local court, nor is the law which created it a special or local law, within the meaning of the provisions of the Constitution.

Counsel for plaintiff in error earnestly insists that the criminal court created by the act involved in this proceeding was not in pursuance of an express command of the Constitution, and undertakes to draw a distinction between the enactment of a law in obedience to an express command of the Constitution, and one enacted in pursuance of an implied grant of power. As applicable to this case, we are of the opinion that no such distinction exists. While the constitutional provisions in respect to the establishment of criminal courts do not expressly command the Legislature to create such courts, that they contemplate by their terms the creation of them is beyond question, and the principles as herein announced are as applicable to the constitutional provisions in their present form as they are in cases where the express command is given to enact the legislation. It was expressly ruled in Kenefick v. St. Louis that in either case-where the legislation was in pursuance of a positive command of the organic law, or is required or directly contemplated by its terms-the enactment cannot justly be held to be either special or local, within the true intent and meaning of the Constitution.

The cases of State v. Hill, 147 Mo. 63, 47 S. W. 798, and Ashbrook v. Schaub, 160 Mo. 107, 60 S. W. 1085, do not conflict with the principles announced in Ex parte Renfrow and State ex rel. v. Yancy, nor with the conclusions as announced in the case at bar. An examination of the Hill and Ashbrook Cases, cited by plaintiff in error, makes it manifest that the questions involved in those cases are entirely dissimilar to the proposition presented by the record in this cause. The validity of the act creating the Buchanan county criminal court was in no way assailed or challenged. The only question presented by these cases was the amendment to the act establishing the criminal court of Buchanan county, approved March 1, 1897 (Laws 1897, p. 79), which undertook to empower the judge of the criminal court of Buchanan county, when called upon, to preside and try causes

pending in the circuit courts of the state. With the announcement of the conclusions that this amendment was in conflict with the Constitution, which prohibited the enactment of a special law where a general law could be made applicable, we are entirely satisfied, but that is not this case. That amendment was clearly violative of the constitutional provisions noted, for the reason that it undertook to select one judge of a criminal court of this state, and confer upon him powers not given to any other judge of the criminal courts of the state. It will be observed that this amendment does not rest upon the same foundation as the act of the General Assembly establishing the criminal court of Buchanan county, for it is apparent there is no constitutional provision commanding such legislation, or in which, by the terms of the constitutional provision, such legislation is required or contemplated; hence we must keep in view, upon this proposition, the distinction between the enactment of a law in pursuance of a constitutional provision requiring or by its terms contemplating such enactment, and legislation upon subjects about which the organic law of the state is absolutely silent. The mere fact of the statement by the learned judge in Ashbrook v. Schaub that the act creating the Buchanan county criminal court was a special law, and enacted in accordance with the provisions of section 54, art. 4, of the Constitution, cannot be treated as overruling the prior decisions upon that subject. The Buchanan county criminal court act was calculated to mislead as to the nature and character of the legislation. It is clear that the General Assembly, through abundance of caution, undertook to comply with the provisions of the Constitution in respect to special legislation, but that by no means makes it a special or local law. The remarks of the court in the Ashbrook-Schaub Case must therefore be treated as mere obiter, and in no way changing the principles of law as applicable to this case, which were so clearly and correctly announced in State ex rel. v. Yancy. It is obvious that State v. Hill did not overrule State ex rel. v. Yancy, nor was it so regarded by the judges who wrote the opinions in those cases. Sherwood, J., who wrote the Hill Case, fully concurred with Burgess and Gantt, JJ., in the Yancy Case; and, on the other hand, Burgess and Gantt, JJ., concurred with Sherwood, J., in the Hill Case. Therefore it is made apparent that the court fully recognized that there was no conflict in the principles announced in those cases.

Upon the remaining propositions urged by counsel for plaintiff in error, "that the act is unconstitutional because it imposes duties on the sheriff and clerk of the court, and incidental expenses on the county not common to all sheriffs, clerks, and counties throughout the state," it is sufficient to say that, having held that the act creating the criminal court was constitutional, the power ex

ists by implication to provide for every necessary incident, without which it could not become properly organized. Ex parte Marmaduke, 91 Mo., loc. cit. 262, 4 S. W. 91, 60 Am. Rep. 250; State ex rel. v. Mason, 155 Mo. 486, 55 S. W. 636; Sutherland, Stat. Const. § 341; 2 Beach, Pub. Corp. § 1314; State v. Wilson, 87 Tenn. 697, 11 S. W. 792; Moulton v. Reid, 54 Ala. 325; Parker v. Way, 15 N. H. 51; 9 Bacon's Ab. 219, 220; People ex rel. v. Eddy, 57 Barb. 593.

The validity of the act establishing the Buchanan county criminal court has for many years been fully recognized by the bench and bar as well as the people of this state. It is therefore important that we be not unmindful of the repeated admonition to courts, when they are called upon to pronounce the invalidity of an act of the Legislature passed with all the forms and ceremonies requisite to give it force, that they approach the question with great caution. The "presumption is in favor of the constitutionality of this act, and, before this court would be warranted in holding it invalid because in conflict with the Constitution, it should be satisfied of its invalidity beyond a reasonable doubt." Ewing v. Hoblitzelle, 85 Mo. 64; Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774; State v. Addington, 77 Mo. 110; State v. Railroad, 48 Mo. 470.

We have thus given expression to our views upon the validity of the act creating the Buchanan county criminal court, which results in the conclusion that such act is a valid and constitutional law, and that the criminal court of Buchanan county, organized in pursuance of it, is a legally constituted tribunal.

The judgment in this cause should be affirmed, and it is so ordered. All concur.

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STREET RAILROADS. Scheme & Charter of St. Louis, art. 10, § 1, gives the municipal assembly power to determine by ordinance all questions arising with reference to regulating or controlling street railroads; and by article 3, § 26, the mayor and assembly have power by ordinance to establish, etc., all streets, and to regulate the use thereof. An ordinance of the city of St. Louis provides that the motorman propelling a street car shall keep a vigilant watch for vehicles, and, on the first appearance of danger therefrom, shall stop the car as soon as possible. Held, that such ordinance is a valid exercise of the city's police power, and an acceptance or agreement of a street railroad company is not necessary to give the ordinance binding force. 3. STREET RAILROADS-NEGLIGENCE-BREACH OF ORDINANCE.

A breach of the requirements of the ordinance amounts to negligence, for the results

of which a street railroad company is liable to an individual.

4. SAME-DEGREE OF CARE REQUIRED.

The ordinance is not void on the ground that it exacts a higher degree of diligence and care than the common-law rule of ordinary

care.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 155.]

5. SAME-IMPUTED NEGLIGENCE.

Where plaintiff contracted with a livery stable keeper for a carriage to convey him to a certain place, and, when the carriage and driver called for plaintiff, he merely told the driver where he was going, and gave no other directions, any negligence of the driver was not imputable to plaintiff on the theory that the relation of master and servant existed. 6. SAME CONTRIBUTORY NEGLIGENCE.

Where plaintiff was being driven in a closed carriage, on a dark winter night, by a driver who was not known to plaintiff as a negligent or reckless driver, and the first knowledge that plaintiff had of danger from a street car was when, looking through the window of the carriage, he saw a car rapidly bearing down on him, he was not guilty of contributory negligence.

7. PERSONAL INJURIES-DAMAGES.

In an action for injuries to a physician, which interfered with his practice, it was proper to permit him to testify as to his earnings for that month in the previous year.

8. STREET RAILROADS-COLLISION-EVIDENCE. In an action for injuries to one whose vehicle was run down by a street car, it was proper to permit him to testify as to the rate of speed at which the car was running; such testimony not being given as an expert.

9. SAME EVIDENCE AS TO SPEED.

Where, in an action for injuries received by plaintiff in a collision between his vehicle and defendant's street car, the actual physical facts, not controverted by defendant, tended to show an excessive speed of the car, the admission of plaintiff's testimony as to his opinion as to the speed of the car was no ground for a reversal.

Marshall, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Greenfield Sluder against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Morton Jourdan, Sears Lehmann, Geo. W. Easley, and Boyle, Priest & Lehmann, for appellant. Campbell & Thompson, for respondent.

GANTT, J. This is an action for damages for personal injuries caused by the collision of one of defendant's street cars with a livery carriage in which plaintiff was riding, at the crossing of McPherson avenue by Boyle avenue, on which last-named avenue the defendant company owned and operated a doubletrack street railway, in the city of St. Louis. Plaintiff recovered judgment in the circuit court for $6,000, and defendant appeals.

The petition, in substance, states that on or about the 27th day of December, 1901, about 7:15 o'clock in the evening of that day, the plaintiff, a physician, was being driven in a hired livery carriage west along McPherson avenue (a street running east and

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