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having a population exceeding 50,000, contem- ed as follows: (1) Because it is in conflict plate that the Legislature, except as restricted, with subdivision 2 of section 53, art. 4, of the will make appropriate provisions for the establishment of criminal courts as the necessities

Constitution, which provides: “The General of the case may require, an act creating a crim- Assembly shall not pass any local or special inal court for a county having a population ex.


regulating the affairs of coun. ceeding 50,000 is not obnoxious to article 4, § 53, subd. 32, prohibiting the passage of any spe

ties, cities, townships, wards or school discial law where a general law can be made ap

tricts." (2) Because it is in conflict with subplicable.

division 15, 53, art. 4, providing that no lo2. SANE-IMPOSITION OF SPECIAL BURDENS ON cal or special law shall be passed "creating OFFICERS AND TAXPAYERS-EFFECT.

offices, or prescribing the powers and duties An act creating a criminal court for a county is not void because it imposes special duties

of officers in counties, townships, election or on the sheriff and clerk of the court, and inci- school districts." (3) Because it is in conflict dental expenses to the county; the power to with subdivision 17, & 53, art. 4, of the Conprovide for the necessary incidents of the court

stitution, providing that no local or special being implied from the power to establish it.

law shall be passed “regulating the practice Error to Criminal Court, Buchanan Coun- or jurisdiction of, or changing the rules of ty; B. J. Casteel, Judge.

evidence in any judicial proceeding or inquiry Gabe Etchman was convicted of crime, and before courts, justices of the peace, sheriffs, he brings error. Affirmed.

commissioners, arbitrators, or other tribuOn the 4th of April, 1903, the grand jury nals, or providing or changing method for the of Buchanan county, Mo., returned an indict

collection of debts, or the enforcing of judg. ment against the plaintiff in error, charging ments, or prescribing the effect of judicial him with setting up in said county on March

sales of real estate.” (4) Because it is in 31, 1903, certain gambling tables and devices,

conflict with subdivision 32, § 53, art. 4, of two of which were a chuck-a-luck table and a

the Constitution, which prohibits the passage crap table. On arraignment on April 6, 1903,

of any local or special law "where a general a plea of not guilty was entered, which was

law can be made applicable; and whether a withdrawn on June 27th, and a plea of guilty general law could have been made applicable entered in its stead. Thereupon the court

in any case is hereby declared a judicial quesassessed the punishment at six months in the

tion." county jail. A motion in arrest of judgment

Learned counsel for plaintiff in error has was filed, but the record is silent as to any

presented the question involved in this condisposition of said motion. On August 12, troversy in its strongest light, and it is not 1904, a writ of error was sued out in this

out of place to say that about all has been court, and the clerk of the lower court, in

said in his oral argument and brief now beobedience thereto, has forwarded a certified

fore us that can be said upon this proposicopy of the record proper in said cause, which

tion, yet, after a careful consideration of all is now before the court for consideration.

the authorities, we are unable to give our

assent to the contention so ably presented by Charles C. Crow, for plaintiff in error. H.

counsel. S. Hadley, Atty. Gen., and Frank Blake, for

The origin of the power in the legislative the State.

branch of the government of this state to

create and establish criminal courts is found FOX, J. (after stating the facts). The same in section 1, art. 6, of the Constitution, which questions, with the exception noted, involved provides: “The judicial power of the state, in this case, were decided by this court in as to matters of law and equity, except as in State v. Rosenblatt, 83 S. W. 975, and State this Constitution otherwise provided, shall be V. Etchman, 83 S. W. 978, except the one vested in the Supreme Court, the St. Louis proposition now presented in this case, as to Court of Appeals, circuit court, criminal the constitutionality of the act creating the courts, probate courts, county courts and mucriminal court of Buchanan county. The act nicipal corporation courts.” Following this creating the criminal court of Buchanan coun- provision of the Constitution, we find that ty will be found in Rev. St. 1899, p. 2563, § 1. section 31, art. 6, of the Constitution, places It provides: “Pursuant to sections 1 and 31 a limitation upon the power of the General of article VI of the Constitution, and to a Assembly to establish and create criminal notice (set out in full] a court of record is courts. It provides: “The General Assembly hereby established in the county of Buchan- shall have no power to establish criminal an, said county having a population exceed- courts except in counties having a population ing 50,000 inhabitants, and to be designated exceeding 50,000.” It is apparent that while and called the Criminal Court of Buchanan section 31, art. 6, as above noted, limits the County."

power of the General Assembly in respect to There is but one proposition presented in the establishment of criminal courts, yet it the record in this cause, and that is embraced is equally clear that it fully recognizes the in the contention of plaintiff in error that the power of the General Assembly to establish act as herein noted, establishing the Buchan. such courts in counties having the required an county criminal court, is void and uncon- population. We have, then, as applicable to stitutional. The grounds upon which this the proposition now under consideration, first, contention is predicated may be briefly stat- a constitutional provision vesting the judicial

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power of the state in certain designated with counsel upon this insistence. We are courts among them, criminal courts; sec- unwilling to believe that the framers of the ondly, by a provision in the same Constitu- Constitution, in recognizing the power of the tion, we have a full and express recognition General Assembly to establish criminal courts of the power of the General Assembly to es- in counties having a population of more than tablish criminal courts in counties having a $30,000, meant to say to the lawmaking powpopulation exceeding 50,000. The act of the er that "you can only exercise this power General Assembly establishing the Buchanan providing you establish a criminal court in county criminal court was enacted in pursu- every county in the state possessing the reance of the constitutional provisions above re- quired population, regardless of any local ferred to, and the fair and reasonable inter- conditions or demands for the establishment pretation of such provisions, as applicable to of such courts." If section 31, art. 6, of the the grant of power to the General Assembly Constitution, is to be given a reasonable and to pass the act creating such court, must fur- practical interpretation, the power recogniznish the solution of the proposition now con: ed in the General Assembly to establish crimfronting us.

inal courts in counties having a population This leads us to inquire as to what rule of exceeding 50,000 does not necessarily mean construction should be adopted in the inter- that the Legislature, in the exercise of such pretation of the constitutional provisions in- power, must include every county in the volved in this proceeding. After diligent state. The presumption must be indulged search, we are unable to find any rule which that the framers of the Constitution could is more practical than the one announced by foresee the common wants of the people of that eminent jurist and author, Mr. Story, in this state, and that there would be in some his work upon the Constitution. He thus counties large and populous cities, and a destates it: “Every word employed in the Cou- mand for the creation of separate criminal stitution is to be expounded in its plain, ob- courts, wbile in other counties of the requirvious, and common-sense meaning, unless the ed population, purely agricultural, with small context furnishes some ground to control, cities and villages, there would be no need qualify, or enlarge it. Constitutions are not or demand whatever for a separate criminal designed for metaphysical or logical subtle- tribunal. That is the only practicable and ties, for niceties of expression, for critical reasonable construction that can be given the propriety, or for the exercise of philosophical provisions of the Constitution now under * acuteness or judicial research. They are in- consideration. To hold otherwise would not struments of a practical nature, founded on be in harmony with the rule indicated by Mr. the common business of life, adapted to com- Story, for if, in pursuance of the powers recmon wants, designed for common use, and fit- ognized by the Constitution, the General Asted for common understandings. The people sembly must establish criminal courts, if at make them, the people adopt them, the people all, in every county in the state, regardless must be supposed to read them with the help of any need or demand for them, then such of common sense, and cannot be presumed to provision would fall far short of being of admit in them any recondite meaning or any that “practical nature, founded on the comextraordinary gloss." 1 Story, Const. § 451. mon business of life, adapted to common The General Assembly of this state, fully rec- wants, designed for common use, and fitted ognizing the power granted by the organic for common understandings." 1:1 of this state to create and establish crim- Buchanan county had a population of more inal courts, in harmony with the rule as an- than 50,000, and the act assailed in this pronounced by Mr. Story, proceeded in a prac- ceeding, creating the Buchanan county crimtical way to exercise such power, and put the inal court, was simply appropriate legislaconstitutional provisions into full force by tion, in the exercise of a recognized power the creation and establishment of the Bu- by the Constitution, and which the Constituchanan county criminal court, which county, tion, by its terms, contemplated would be it is conceded, had a population of more than exercised by the General Assembly, and 50,000.

therefore cannot be held to be either special It is insisted by plaintiff in error that the or local, within the true intent and meaning act creating the Buchanan county criminal of the Constitution. In Kenefick v. City of court is a local or special law, and is in con- St. Louis, 127 Mo. 10, 29 S. W. 841, Barclay, flict with subdivision 32 of section 53, art. J., very clearly and concisely announced the 4, of the Constitution, which prohibits the true rule as to legislation of this character. passage of any local or special law where a He said: "Legislation which is necessary or general law can be made applicable. In appropriate to carry into effect a positive other words, to restate the contention in this command of the organic law, or is required cause, it is urged that the only way in which or directly contemplated by its terms, canthe General Assembly can exercise the power not justly be held to be either special or local, recognized by the Constitution to establish within the true intent and meaning of the criminal courts is by an enactment establish- Constitution. Legislation of that description ing and creating criminal courts in every is, indeed, merely the machinery to put the county in the state baving a population of Constitution into full force." To the same more than 50,000. We are unable to agree 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 probibition, 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 The proposition involved in this case is by prohibiting the establishing of criminal no means a new one. The precise question courts in such counties, by express terms, here presented has been in judgment before having a population of less than fifty thouthis court. In Ex parte Renfrow, 112 Mo. sand people, is a recognition of the power to 591, 20 S. W. 682, the constitutionality of the establish them in counties having a populacreation of the criminal court of Greene coun- tiontion exceeding fifty thousand. When ty was challenged. While the proposition in there is a specific grant of power conferred this cause was not thoroughly presented in by the Constitution upon the Legislature the briefs of counsel, nor was the question upon any certain or particular subject, an fully reviewed by this court in the decision act passed in pursuance of such grant will of that case, however, it was suggested in not be held unconstitutional upon the ground the briefs that the act establishing the that it is local or special legislation. State Greene county criminal court was violative ex rel. v. County Court, 50 Mo., loc. cit. 324, of the provisions of the Constitution in re- 11 Am. Rep. 415; State ex rel. v. Watson, 71 gard to special legislation. Responding to Mo. 470; Ewing v. Hoblitzelle, 85 Mo. 64. that suggestion, this court said: “There is The fact that notice was given of the intendnothing in the suggestion that the act in ed application to the Legislature for the pasquestion is obnoxious to the provisions of the sage of a law creating the court in question, Constitution in regard to special legislation. and of a court similar in all respects in BuThe Legislature plainly has power to provide chanan county, did not change the law, and for a criminal court in any county of the was in all probability done through an abundstate having a population exceeding fifty ance of caution-certainly not because it was thousand." In State ex rel. v. Yancy, 123 Mo. a necessary prerequisite.” This case was ap391, 27 S. W. 380, the constitutionality of

provingly quoted in Kenefick v. St. Louis the act creating the Greene county criminal and Spaulding v. Brady, supra. We are of court was directly involved. The question the opinion that the law was correctly anwas fully presented in the briefs of counsel. nounced in the Yancy Case, and see no legal This court, speaking through Burgess, J., reason for departing from the conclusions

therein reached. The criminal court of Buch- pending in the circuit courts of the state. anan county is by no means a mere county With the announcement of the conclusions court. As was said in State ex rel. Hughlett that this amendment was in conflict with the F. Hughes, “It is pre-eminently a state court, Constitution, which prohibited the enactment affecting in its operations all the citizens of of a special law where a general law could the state; deriving its power directly from be made applicable, we are entirely satisfied, the organic law of the state, and law passed but that is not this case. That amendment by the Legislature in pursuance thereof." was clearly violative of the constitutional While it may be said that the territory in provisions noted, for the reason that it underwhich the court is held is limited, every cit- took to select one judge of a criminal court izen of the state is interested in the admin- of this state, and confer upon him powers istration of the law, and the offenses of which not given to any other judge of the criminal the court has jurisdiction are those, pre- courts of the state. It will be observed that sumptively, that affect the peace and dignity this amendment does not rest upon the same of the entire state. It is in truth and in fact foundation as the act of the General Assema criminal court of the state of Missouri, and bly establishing the criminal court of Buin no sense is it to be classed as a local court, chanan county, for it is apparent there is no nor is the law which created it a special or constitutional provision commanding such local law, within the meaning of the provi- legislation, or in which, by the terms of the sions of the Constitution.

constitutional provision, such legislation is Counsel for plaintiff in error earnestly in- required or contemplated; hence we must sists that the criminal court created by the keep in view, upon this proposition, the disact involved in this proceeding was not in tinction between the enactment of a law in pursuance of an express command of the

pursuance of a constitutional provision reConstitution, and undertakes to draw a dis- quiring or by its terms contemplating such tinction between the enactment of a law in enactment, and legislation upon subjects obedience to an express command of the Con- about which the organic law of the state is stitution, and one enacted in pursuance of au absolutely silent. The mere fact of the stateimplied grant of power. As applicable to ment by the learned judge in Ashbrook v. this case, we are of the opinion that no such Schaub that the act creating the Buchanan distinction exists. While the constitutional county criminal court was a special law, and provisions in respect to the establishment enacted in accordance with the provisions of of criminal courts do not expressly command section 54, art. 4, of the Constitution, cannot the Legislature to create such courts, that be treated as overruling the prior decisions they contemplate by their terms the creation upon that subject. The Buchanan county of them is beyond question, and the prin- criminal court act was calculated to mislead ciples as herein announced are as applicable as to the nature and character of the legislato the constitutional provisions in their pres. tion. It is clear that the General Assembly, ent form as they are in cases where the through abundance of caution, undertook to express command is given to enact the legis

comply with the provisions of the Constilation, It was expressly ruled in Kenefick tution in respect to special legislation, but v. St. Louis that in either case where the

that by no means makes it a special or local legislation was in pursuance of a positive law. The remarks of the court in the Ashcommand of the organic law, or is required brook-Schaub Case must therefore be treated or directly contemplated by its terms—the as mere obiter, and in no way changing the enactment cannot justly be held to be either principles of law as applicable to this case, special or local, within the true intent and

which were so clearly and correctly announmeaning of the Constitution.

ced in State ex rel. v. Yancy. It is obvious that The cases of State v. Hill, 147 Mo. 63, 47 State v. Hill did not overrule State ex rel. S. W. 798, and Ashbrook v. Schaub, 160 Mo. v. Yancy, nor was it so regarded by the judg107, 60 S. W. 1085, do not conflict with the

es who wrote the opinions in those cases. principles announced in Ex parte Renfrow Sherwood, J., who wrote the Hill Case, fully and State ex rel. v. Yancy, nor with the con- concurred with Burgess and Gantt, JJ., in clusions as announced in the case at bar. An the Yancy Case; and, on the other hand, examination of the Hill and Ashbrook Cases, Burgess and Gantt, JJ., concurred with Shercited by plaintiff in error, makes it manifest wood, J., in the Hill Case. Therefore it is that the questions involved in those cases are made apparent that the court fully recogentirely dissimilar to the proposition present- nized that there was no conflict in the prined by the record in this cause. The validity ciples announced in those cases. of the act creating the Buchanan county Upon the remaining propositions urged by criminal court was in no way assailed or counsel for plaintiff in error, “that the act challenged. The only question presented by is unconstitutional because it imposes duties these cases was the amendment to the act on the sheriff and clerk of the court, and inestablishing the criminal court of Buchanan cidental expenses on the county not common county, approved March 1, 1897 (Laws 1897, to all sheriffs, clerks, and counties throughp. 79), which undertook to empower the judge out the state," it is sufficient to say that, of the criminal court of Buchanan county, having held that the act creating the crimwhen called upon, to preside and try causes inal 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. 323; 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 Buch. anan 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.

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., dissentin

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.


The granting to a municipal corporation of power to pass all necessary ordinances for the protection of the safety of citizens is not an infringement of the maxim that legislative power may not be delegated. 2. SAME-POLICE POWER REGULATION OF STREET RAILROADS.

Scheme & Charter of St. Louis, art. 10, 8 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

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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