119 Mo. 593 | Mo. | 1894
This is a proceeding, by the prosecuting attorney of Lafayette county, against Judge Field and the clerk of the circuit court and sheriff of said county to restrain them from carrying out the provisions of “An act to repeal an act approved February 14, 1893, entitled, ‘An act to repeal section 43 of the acts of 1892 (extra session), approved April 7, 1892, entitled, “An act to redistrict the state into judicial circuits," and to fix the terms of courts therein;” ’ and to enact a new section in lieu thereof, to be known as section 43, and providing for holding two terms of court at Higginsville, in Lafayette county,” approved April 19, 1893.
Among other things, the petition alleges that the act in question,' providing for two terms of the circuit court to be held at Higginsville, is unconstitutional; and that Richard Field, circuit judge, Wm. L. Ewing, circuit clerk, and Zachariah W. Wright, sheriff, propose to carry'out "said enactment as they are required todo by said alleged act, to wit: Said Richard Field as such judge is about to select a place for the holding of two terms of said court at Higginsville ,and offices for the clerk and juries of said court, etc.
It is claimed by the plaintiff that the act in question is void for various reasons, among which are the following: “Because the act of February 14, 1893, known as House Bill No. 31 (as shown fyy the Journal), is in violation of the constitution of the state, in that the subject thereof is not clearly
“Second. That said purported act is also void, for the reason that said bill purported to originate in the house of representatives, and, being passed, was sent to the senate for action; that as said act passed the house its title read as follows: ‘An act to repeal an act approved February 14, 1892, entitled, “An act to repeal section 43 of the acts of 1892 (extra session) approved April 7, 1892, entitled, ‘An act to redistriet the state into judicial circuits and to fix the terms of courts therein.’ ” ’ In the senate the title was amended by adding thereto the words, ‘And to enact a new section in lieu thereof to be known as section 43 and to provide for the holding of two terms of court at Higginsville in Lafayette county;’ that as said bill originally passed in the house it was null and void for the want of proper title, and that the title thereto first became complete, if at all, in the senate, and being returned to the house, the amendment so received was not printed after engrossment before its final passage as provided for by the constitution, and so violates sections 29, 30 and 31 of article 4 of the constitution, and said bill after amendment of the title in the senate for the first time, if at all, contained a valid title, and hence-within the meaning of the constitution originated in the senate and being sent to the house, was not read therein on three different days.”
“Fifth. That said act is a local or special act in the following particulars, to wit: (a) It attempts to provide a mode of establishing and maintaining a courthouse, and paying the expense therefor, different from the mode and manner in which our courthouses are maintained and expenses paid. (&) It imposes a duty and authority upon the judge of the - circuit court of Lafayette county, in addition to, and different from the powers and duties held and possessed by other circuit judges throughout the state, (c) It affects by special legislation the title of real estate, and provides when and where certain real estate may be sold, all of which could be reached by general- law- upon the respective subjects, (d) That it imposes upon respondent, Judge Field, the duty of furnishing the courthouse, and authorizes him to create a debt therefor, against Lafayette county, whereas that object can be, and in fact is, reached by general law; it is the duty of the county court' to furnish courthouses and they alone can be authorized in first instance to do so.
“Sixth. Said bill' number 603, further violated the constitution of the state in that by its title it only purports to repeal an act and establish a court at Higgins ville, while in its body it attempts to fix time for holding court and terms of court in Lafayette, Pettis and Saline counties also.
“Seventh. Said act approved February, 1893, and said other act approved April 19, 1893, are singly and combined, violative of the twenty-eighth section of
The answer of defendants, after admitting the passage of the acts in question, denies that the act purporting to establish two terms of court at Higginsville is unconstitutional, which is followed by a general denial. Both parties waived a hearing for a temporary injunction and the cause was heard on its merits for final determination.
Upon the hearing, house journal of session 1893 was introduced in evidence so far as it related to the passage of the acts called in question by the petition. Judge Field, Sheriff Wright and Clerk Ewing were called, all of whom stated that it was their purpose to carry out the terms of the act, as directed therein, for the establishment of a court at Higginsville.
The case Was tried on its merits before Hon. E. J. Broaddus of the seventh judicial circuit, who was called in by Judge Field to try the case; upon a hearing of the case the court found the issues for the defendants, and rendered a judgment dismissing the relators’ bill.
I. Much unnecessary discussion will be avoided, if we determine at the outset the relation the act of April 19,1893, bears to the act of February 14,1893. If it was a repeal of the former act, and the adoption of a new section in lieu thereof, then we are relieved of passing upon the constitutionality of the act of February 14.
The constitution furnishes the test by which the intention of the legislature is to be ascertained. It requires that the statute should be confined to one subject “which shall be clearly expressed in its title.” • The title to this act of April 19, is “An act to repeal an
It is perhaps due to the learned counsel for relator to say that they do not seriously question that, if the act of February 14 was constitutional, it was repealed by the subsequent act of April 19, but they base their argument upon the assumption that the former act was unconstitutional and therefore void, and insist that the legislature could not repeal a void act, and make it the basis of a valid enactment. But it must be plain that this is specious reasoning.
The legislature of this state has a plenary lawmaking power within the territorial limits of this state, either to enact new laws or repeal old laws, unless prohibited by the constitution of the United States or the constitution of this state. But it is said a void act is no law, and the power to repeal does not reach it. It is evident however that this argument ignores the fact that unconstitutional enactments are sometimes spread upon our statute books and are obeyed by the people and the officers of the law, and are usually clothed with the semblance at least of valid laws. They stand unchallenged sometimes for years, and then present the gravest questions for the determination of the courts. Now, when placed upon the statute books by the action of the legislature, why should not the same govern
Surely it needs no argument to demonstrate that the legislature has the power to see that nothing shall deface our statute books that is not a law. It is of supreme importance to the administration of justice in our courts that the people should obey the processes of our courts and that no doubt should exist as to the rightfulness of the sessions they hold. Under our system a court can only be held at the time and place appointed by law and the most direful consequences might ensue, if the judges and officers of the law were to meet and pass upon the personal and property rights of our citizens at times or places unauthorized by law.
Now the relator says the act of February 14 was unconstitutional, but upon its face, it essayed to fix the times for holding courts in the fifteenth judicial circuit of this state, a large and populous district, and yet when the legislature also discovers the truth, as relator sees it, and deems it a matter of simple justice that its own improvident action shall not mislead the judge and officers of the court in that circuit and solemnly declares according to the forms prescribed by the constitution that the said act of February 14 is not and shall not be considered and obeyed as a law of this state, they are met with the objection that they can not repeal a void act. The bare statement of the proposition furnishes its own refutation. Certainly the legislature may purge the statute books of any matter not lawfully there. To deny it this power is to ascribe to it a most dishonoring impotence and a disregard of the analogies of the law.
A judgment or decree of a court, though formal, is void if the court had no jurisdiction over the subject-matter or the persons of the parties; and may be disre
So when an act of the legislature is void for failure to observe some constitutional prerequisite, nothing could be more appropriate than for the legislature to remove the act at once from a place among the valid laws of the state and by an apt reference call attention to its repeal and at the same time enact a valid law on the same subject in its stead. It isnot an attempt to resuscitate the void act, nor to build upon it as a foundation. It is a simple declaration that in future it is not to be regarded. The power to repeal a law has been held to involve the power to abrogate a bill in its progress before it becomes a law. Bank v. Commonwealth, 26 Pa. St. 446.
But we agree with the learned circuit judge who heard this cause, that “the right of the legislature to repeal an unconstitutional act is self-evident, and needs no-precedent toproveits soundness.” Holding, then, as we do, that the act of April 19, was a repeal of the act of February 14, 1893, it can make no difference whether the latter act was or was not unconstitutional. If it was constitutional, it was repealed by the express repealing clause of the later act; if unconstitutional, it was either repealed by said act, or so much of the act of April 19 as refers to it, may be wholly disregarded as surplus-age, and the remainder of the act construed, as it was evidently intended to be, an amendment of section 43 of an article entitled: “An act to redistrict the state into judicial circuits and to fix the terms of courts therein,” approved April 7, 1892, and would operate as a repeal of said section in the act of 1892, by necessary
II. So far we have discussed the effect of the act of April 19, 1893, known in the journal as House Bill No. 603, on the assumption that it was passed in pursuance of the constitution. We come now to the point made by relator’s counsel, that it was never constitutionally adopted by the general assembly. Their contention is, first, that as the. bill passed the house, its title did not contain the words, “and to enact a new section in lieu thereof to be known as section 43 and providing for the holding of two terms of court at Higginsville in Lafayette county,” and these words having been added by way of amendment in the senate, the bill must be regarded as originating in the senate; and upon its return to the house it was not printed, and read three separate days, printed and referred to the proper committee; in other words, it was not enacted by the house by the steps required where the bill originates in the senate. Or, secondly, if it is to be' regarded as originating in the house, amended in the senate, and returned to the house, then neither the bill as amended as a whole or the amendment alone, was printed in fact, and reported by the proper committee, as correctly printed, for the information of the house.
To substantiate these objections the house journal of the session of 1893, was read in evidence. By reference to this journal we find that the bill by its designation as House Bill No. 603,. was introduced and read the first time under‘the following title (See page 372), “An act to repeal section No. 3368, chapter 46,
On page 708, the committee on engrossed bills reported that they found House Bill 603 “truly engrossed, and the printed copies thereof furnished the members are correct.” Which report was duly read. On page 781 it appears, that by an aye and no vote the rules were suspended and the bill was taken up to be read a third time and put upon its passage and was carried. It next appears on pages 1025 and 1026 of the journal, that the senate reported the bill back to
The facts appearing from the journal entries clearly demonstrated that the bill passed as it originated in the house. It was then numbered House Bill number 603, and contained all the matter embraced in it on its final passage. No amendment was made save in the title. The identity of the bill was preserved through both houses. All the journal entries refer to the same bill by its number and it is beyond all controversy, that it was passed by both houses of the legislature.
As to the proposition that, because its title was amended in the senate, it became a senate bill and must begin anew its course as an original bill, we think it is opposed to all parliamentary usage and could and would only tend to unnecessary and burdensome delays in legislation, prevent salutary amendments, and would in no sense aid in preventing the mischiefs contemplated by the makers of the constitution.
There is no parliamentary law nor any provision
The practice in the British Parliament has long been to defer the adoption of the title until the bill was perfected, and not without the best of reasons, for in this manner the title was conformed to the changes made, and was an expression of the subject of the bill as finally passed. Att'y Gen’l v. Rice, 64 Mich. 385; Cushing’s Law and Practice of Legislative Assemblies, sec. 2229.
A much more serious question, however, is presented in the objection that the provision of section 30 of article 4, of the constitution was not observed in the passage of this bill. This section of the constitution is as follows: “If a bill passed by either house be returned thereto, amended by the other, the house to which the samé is returned shall cause the amendment or amendments so received to be printed under the same supervision as provided in the next preceding section, for the use of the members before final action on such amendments.” Section 29 provides that the engrossing shall be under the supervision of a committee who shall report to the house in writing that the bill has been truly engrossed and that the copies furnished the members are correct.
While it is not to be denied that an enactment may be overthrown by the recitals of the journal when it clearly appears the constitution has been violated or ignored, still we do not, think a mere failure of the journal to show every step required by the constitution will necessarily render void the law. While it is provided the amendments shall be printed under the supervision of the engrossing committee, it does not require a report as in section 29 to be made and spread 'on the journal. When this bill was enrolled, and then signed in the presence of the house in open session, and all other business was suspended, we think we are bound, in the absence of a recital of the journal to the contrary, to presume that this condition precedent had been observed.
It can hardly be presumed that the members of that house who voted against this bill were ignorant of the requirements of the constitution and. neglected to avail themselves of this means of defeating a bill to which they were opposed, or, on the other hand, that its friends would knowingly risk its rejection by neglect-ing such a simple precaution. The presumption in favor of the correctness of official action attends the
This was the conclusion reached in State ex rel. v. Mead, 71 Mo. 272, and we see no reason for adding to, or departing from, what was so well said in that case, by the learned judge who prepared the opinion. Supervisors v. People ex rel., 25 Ill. 181; People v. Dunn, 80 Cal. 211. We accordingly hold that it must be presumed that the constitution was obeyed and the amendments printed before final action thereon".
III. Again, it is said the act, if formally passed, is unconstitutional in that it imposes upon the judge of that circuit, a duty and authority different from that imposed and held by similar judges in the state and is a local and special act. All of these objections were fully considered and passed upon in State ex rel. v. Hughes, 104 Mo. 470, and the authorities reviewed, and an act similar in all its essentials to this act was held not local or special, but a general law and constitutional; and the question has been since re-examined and that case adhered to in State v. Orrick, 106 Mo. 111.
And the reasoning of those cases also disposes of the further contention, that, by special legislation, the practice in civil cases in reference to changes of venue, has been changed. As was said by the learned circuit judge in his opinion there is nothing in ‘the act regulating practice or jurisdiction of courts; it merely provides, that the court granting a change of venue from any other county to Lafayette county, shall indicate to which place it shall be sent. The courts' would have this power in the absence of such a provision and it is not a change of the general law on that subject.
IV. The remaining proposition is that the act is void, because it attempts to authorize municipal funds, raised by municipal taxation for municipal purposes, to be misapplied to the renting of a courthouse and clerk’s
Before entering upon the discussion whether this last provision is unconstitutional, it should be decided whether, if so held, the remainder of the act can be sustained without this clause. In Railroad v. Evans & Howard Brick Co., 85 Mo. 307, it was said, “Sometimes a statute is unconstitutional in part and constitutional-as to the residue, and if the unconstitutional partis not inseparably connected in substance with that which is valid and complete in itself, and capable of being executed in conformity with the apparent legislative intent, regardless of that which is rejected, the unconstitutional part may be regarded as stricken out.” State ex rel. v. Pond, 93 Mo. 635; Gordon v. Cornes, 47 N. Y. 608; Allen v. Louisiana, 103 U. S. 80.
We think this is now unquestionably the rule of construction in such cases. It certainly would be a reflection on the legislative department to say that the mere rental of a court room and for a clerk’s office would be a serious consideration with the legislature when it was considering the necessity and advisability of establishing the courts at Higginsville, and that the payment of the expense by the city would have been a sufficient inducement to pass the act, or its refusal to do so any reason for defeating it. We are bound to presume the legislature was actuated by a desire to
The clause of the constitution supposed to be violated by this clause is section 11 of article 10, which limits the power of cities and towns to tax for municipal purposes; but this is not a municipal tax. If a tax should be necessary under the clause in question it will be levied in pursuance of the act of the legislature for a state purpose, and not . for the municipality. The courts are held by the officers of the state for the state and it is incumbent upon the legislature to provide for their maintenance.
There is no provision in the constitution that secures equality of taxation throughout the state. The provision requiring all property to be taxed in proportion to its value, does not meet the proposition under discussion. When once the tax is determined upon, then it must be laid in proportion to the values in the territory upon which it is levied, and it may be conceded that, for municipal purposes, it is limited by the section quoted; but, as already said, the tax, if any, to be raised under this act is a state tax and the legislature has the power and duty to provide for the state government, and it may lawfully use the agency of the city government to collect that tax.
The idea of equality of taxation has never obtained in this state. It is not feasible. From the foundation of the state the legislature has, in addition to the general tax, imposed the burden upon the several counties of building courthouses in the several counties in which to hold the state’s courts. These courthouses have varied in cost as the taste and ability of the several counties was different. The state has also imposed upon the counties the duty of constructing roads, and upon cities, the public streets, and, since 1851, has
In one sense this additional tax was local and unequal, but the power to provide by law for these salaries was vested in the legislature, and it has never been deemed the prerogative of this court to interfere with that discretion because it might not happen to accord with our notions of propriety and abstract right.
But it would not be a difficult task to show that the legislature has wisely put the increased burden upon those communities which required the increased services of the officers of the state. We deem it within the power of the legislature to impose a tax upon a particular subdivision or municipality of the state, when, in its judgment, it is for the benefit of that locality as well as the state at large; and, consequently, see no objection to its imposing this duty upon the city of Higginsville, State ex rel v. St. Louis County Court, 34 Mo. 546; St. Louis v. Shields, 52 Mo. 351; State ex rel. v. Holladay, 70 Mo. 137; In re Apportionment Tax, 78 Mo. 596; Cooley on Taxation [2 Ed.], pp. 142, 155, 166, 167; Gordon v. Cornes, 47 N. Y. 608.
With the exception of the last proposition discussed we have reached the conclusion arrived at by the learned circuit judge. But for the earnestness and ability with which the questions were pressed anew upon us, we should have been perfectly content with the opinion which he filed in the circuit court, and to which we are greatly indebted in our examination of the cause. The judgment of the circuit court refusing to issue the injunction, and holding the act of April 19, 1893, providing for the court in the fifteenth judicial circuit constitutional, is affirmed.
