State ex rel. Board of Education v. Nast

209 Mo. 708 | Mo. | 1908

GANTT, C, J.

This is an application in this court for a writ of mandamus against the clerk of the circuit court for criminal causes in the city of St. Louis and against the city itself to require the defendant Nast, as clerk of said court, to pay over to the Board of Education of the city of St. Louis all fines, penalties and forfeitures heretofore collected by.him and which may hereafter be collected by him as clerk of the St. Louis Court of General Sessions.

The petition sets.forth that the Board of Education is a public corporation organized and existing under the laws of the State of Missouri, and as such is in charge of the public schools and of the school fund of the city of St. Louis; that the defendant Nast is the duly elected, qualified and acting clerk of the circuit court for criminal causes in the city of St. Louis, and that the defendant city of St. Louis is the municipal corporation of that name in the State of Missouri. It is then alleged that the Eorty-fourth General Assembly of the State of Missouri, at its general session at Jefferson City in 1907, passed an act creating “The St. Louis Court of General Sessions,” and that by section 5 of said act the clerk of the circuit court for criminal causes, in the city of St. Louis, is constituted ex-officio clerk of the said court of general sessions, and that pursuant to said provision defendant Adolph Nast is the qualified and acting clerk of said St. Louis Court of General Sessions. That by virtue of section 10 of said act said court is given power to declare forfeitures, and by section 11 of said act said court is given power to assess such punishment as may be fixed by law whenever a defendant shall plead guilty to a misdemeanor, and by section 17 of said act the clerk of said court is directed to pay all fines, penalties and forfeit-tires collected by him into the city treasury. That said section 17 violates section 8, article 11 of the Constitution of the State of Missouri, which provides: “All .... the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of penal or military laws of the State, .... shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund; the income of which fund shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this State. ’ ’ That on or about the second day of July, 1907, one Peter Reiser pleaded guilty in the said court of general sessions to a misdemeanor, and was fined by said court in the sum of $100; that on or about the 31st of August, 1907, one Michael Forster pleaded guilty in the said court to a misdemeanor and was fined in the sum of $10; that on or about the 25th of September, 1907, one Carrie Hegel pleaded guilty in said court to a misdemeanor and was fined in the sum of $80; that on or about the 4th of October, 1907, one John Jones pleaded guilty in said court to a misdemeanor and was fined in the sum of $50; and on the 15th of October, 1907, Charles Brooks pleaded guilty and was fined in the sum of $25. That the defendant, Adolph Nast, clerk as aforesaid, had collected all of the above fines, amounting in the aggregate to the sum of $283, and has audited said sum to the benefit of the defendant, the city of St. Louis, and has refused and still refuses to turn over the sum to the Board of Education of the city of St. Louis, though often requested to do so. The prayer of the petition is that a writ of mandamus be awarded against the said defendant, requiring him, to pay over the amount of said fines and all fines which may hereafter he collected by him as the clerk of said court, to the Board of Education.

This court awarded the alternative writ of mandamus and the defendants waived the service of the same and entered their respective appearances in the cause and filed separate demurrers to the alternative writ. The circuit attorney appearing for the clerk, demurred on the general ground that the petition did not state facts sufficient to' constitute a cause of action against the clerk. The city of St. Louis, by the city counselor and his assistant, in its demurrer, assigns the following special reasons why the writ should not be made peremptory:

“1st. Because the facts stated in said writ are not sufficient to entitle the relator, the Board of Education of the city of St. Louis, to any relief whatever, and because the same does not state facts sufficient to constitute a cause of action.

“2nd. Because the alleged fines are not fines within the meaning of section 8 of article 11 of the Constitution of the State of Missouri, the same not having been imposed or assessed by any court.

“3rd. Because, on the facts stated, the relator, the Board of Education of the city of St. Louis, has no interest whatever in the sums of money alleged by it to be fines, for the reason that said pretended fines were assessed by the St. Louis Court of General Sessions, which is not and cannot be a court under the laws of this State.

“4th. Because the Act of the Legislature of April 15, 1907, creating the St. Louis Court of General Sessions, is unconstitutional and void,- in that it violates section 1 of article 6 of the Constitution of the State of Missouri, in that by said section the entire judicial power of the State is vested in the courts there named, together with the justices of the peace courts created bv section 37 of article 6 of the Constitution, and the St. Louis Court of General Sessions having no power to try and determine criminal or other cases is not a criminal court, and cannot assess or impose fines for the violation of the laws of the State of Missouri.

“5th. The said Act of the Legislature of April 15,1907, is unconstitutional and void, in that it violates section 53 of article 6 of the Constitution of the State of Missouri, and particularly those provisions of said section which prohibit, the Legislature from passing any local or special law creating offices, and prescribing the powers and duties of officers in counties, cities, townships, election or school districts; or any local or special law regulating the practice or jurisdiction of courts, justices of the peace, or other tribunals; or any local or special law in any other case where a general law can be made applicable, and providing that whether a general law could be made applicable in any case is a judicial question which shall be judicially determined without regard to any legislative assertion on the subject.

“6th. The said Act of the Legislature of April 15, 1907, is unconstitutional and void, in that it violates section 54 of article 4 of the Constitution of the State of Missouri, which provides that no' local or special law shall be passed, unless notice of the intention to apply .therefor shall have been published in the locality where the matter or thing to be affected may be situated, and no notice whatever was published of said act.

“7th. Because the provision of said Act of April 15, 1907, requiring the fines to be paid to the city of St. Louis, is an essential part of the same without which the Legislature would not have enacted the same, nor created said St. Louis Court of General Sessions, and said provision cannot be held void by reason of section 8 of article 11 of the Constitution without destroying the entire act.”

The circuit attorney practically concedes that section 17 of the Act of 1907 (Laws 1907, pp. 212. and 217), is unconstitutional in that it attempted to divert from the school fund of the city of St. Louis the net proceeds of the fines and forfeitures which by section 8 of article 11 of the Constitution of this State are required to be turned over to the school fund, but urges that in other respects the act is constitutional.

The issue is clear and single. The School Board of St. Louis invokes the mandatory writ of this court to compel the clerk of the circuit court for criminal causes in the city of St. Louis, to turn over to it the fines imposed for misdemeanors by the St. Louis Court of General Sessions now in his hands, and to command and require him to -pay over to the Board of Education all fines, penalties and forfeitures which may hereafter be collected by him as clerk of the said St. Louis Court of General Sessions. We are relieved in this case of all question as to the character of the fund, which the relator seeks to recover. It is a fund which has accumulated out of fines' imposed by the St. Louis Court of General Sessions for crimes, and if we should make the writ peremptory, it would be a command to the clerk of the circuit court for criminal causes in the city of St. Louis to pay over to the relator, the school board of the city of St. Louis, the clear proceeds of all of the said fines collected by him and now in his hands as clerk, and all such fines and forfeitures as shall hereafter be assessed and imposed by said St. Louis Court of General Sessions, and to do this, in view of the issues presented by this proceeding, we must determine and adjudge that the St. Louis Court of General Sessions is a lawful and constitutional court, duly authorized and adjudged to impose said fines and forfeitures, and has the power to adjudge a person guilty of a misdemeanor or other crime. To impose a fine as punishment- therefor eos vi termini assumes that there is a court legally constituted with power to impose and enforce the same. If the St. Louis Court of General Sessions is a constitutional and lawfully constituted court no doubt whatever can exist that the Board of Education of the city of St. Louis is entitled to the fines and penalties set forth in its application for the writ of mandamus in this case, and that section 17 of the Act of April 15, 1907 (Laws 1907, p. 212), is unconstitutional, and therefore void, inasmuch as it is a clear violation of the constitutional mandate. [Sec. 8, art. 11, Constitution of Missouri; State ex rel. Rodes v. Warner, 197 Mo. 650; In re Staed, 116 Mo. 537; State v. Clifford, 124 Mo. 492.] But if it shall appear, as is asserted by the demurrers in this case, that there is no such court, or what amounts to the same, that said St. Louis Court of General Sessions is not a constitutional and lawfully created court, then it had no right to impose, assess or enforce said fines, and relator had no right to demand and receive the same, as it has always been held a good ground of demurrer that the plaintiff has no legal right, title or interest in the thing demanded, and in such case it makes no difference what •may be the nature of the defendant’s title. The large and controlling question in this case then is, is the St. Louis Court of General Sessions a lawfully constituted and constitutional court with power and authority to hear and determine informations for misdemeanors and to adjudge the defendants therein guilty and to assess and impose fines therefor and enforce the same?

By section 1 of article 6 of the Constitution of Missouri, it is ordained: “The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts.” By section 31 of article 6 of the Constitution of Missouri, it is provided: “The General Assembly shall have no power to establish criminal courts, except in counties having a population exceeding fifty thousand, ’ ’ and section 37 of the same article provides: “In each county there shall be appointed, or elected, as many justices of the peace as the public good may require, whose powers, duties and duration in office shall be regulated by law.” Section 22 of article 6 provides: ‘ ‘ The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original'jurisdiction in all civil cases not otherwise provided for, and such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may be provided by law.” Section 28 of article 6 provides: “The General Assembly may, from time to time, provided one or more additional justices for any circuit composed of a single county.” In 1884 the Constitution was amended by creating the Kansas City Court of Appeals and providing for the territorial jurisdiction of the St. Louis Court of Appeals and the Kansas City Court of Appeals, and also providing that the Legislature should have’ power to create an additional court of appeals. The Constitution of 1875 also provided “that all criminal courts organized and existing under the laws of this State, and not specially provided for in this Constitution, shall continue to exist until otherwise provided for by law.” Thus it'will be seen that all the judicial power of this State is by the Constitution itself vested in courts specified and provided for in that instrument. The General Assembly may lawfully apportion among the courts mentioned in the Constitution the judicial power vested in them by the Constitution itself, subject always to the limitations and prohibitions imposed by the Constitution upon the Legislature.

In State ex rel. Haughey v. Ryan, Judge, 182 Mo. l. c. 355, it was said by this court In Banc: “All the judicial power in this State is by our Constitution vested in certain courts therein named [Art. 6, sec. 1, Mo. Const.]. The General Assembly has no authority to create any other tribunal and invest it with judicial power. It may and it has created boards with quasi-judicial functions, but those functions are not really judicial; they partake more of the character of ministerial offices.” In State ex rel. v. Woodson, 161 Mo. l. c. 453, it was again said: “By our Constitution the judicial power of the State, as to matters of law and equity, except as in the Constitution itself otherwise provided, is vested in certain courts therein named. [Sec. 1, art. 6, Const.]. The word ‘court’ is there used in its technical sense. A court is a judicial assembly. The judge of the court is its presiding officer. While the judge is often called the ‘court’, yet he is only so rightly called when the tribunal over which he presides is in session. Bouvier gives to the word ‘court’ this definition: ‘A body in the government to which the public administration of justice is delegated. The presence of a sufficient number of the members of such a body, regularly convened in an authorized place at an appointed time, engaged in the full and regular performance of its functions.’ The Supreme Court of California has said: ‘A court is a tribunal presided over by one or more judges, for the exercise of such judicial power as has been conferred upon it by law. Blackstone, following Coke, defines it as “a place where justice is judicially administered.” ’ ” In State v. Hathaway, 115 Mo. l. c. 49, it was said: “A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designated by the Constitution as judicial.”

The Constitution of this State in article 6 has conferred jurisdiction over both criminal and civil cases and has expressly provided for the distribution of this jurisdiction. In Ex parte Snyder, 64 Mo. 58, the Act of March, 1875, establishing- a probate and criminal court in lieu of the common pleas court of Cass- county, which by its terms was not to take effect until January, 1876, was held unconstitutional, because it was not in force and existing at the time the Constitution went into effect on November 30, 1875. And a prisoner who was convicted in said court of grand larceny was discharged on habeas corpus on the ground that said court •was absolutely without jurisdiction to- try and convict him. Owing to the distribution of the jurisdiction into civil and criminal cases, the courts having jurisdiction of criminal cases .were designated as criminal courts and those having jurisdiction of civil cases became known as civil courts. There can be no valid prosecution for crime unless the court in which it is carried on is legally created and constituted and has jurisdiction of the offense and of the person of the defendant. Jurisdiction to punish the offense cannot be conferred by the consent of the accused. Clark, in his work on Criminal Procedure, page 4, says: “No court “can try and punish for any offense unless it is a legal court; that is, unless it is legally created and legally constituted. If the statute attempting to create a court is clearly unconstitutional, or otherwise clearly insufficient, there is no legal court, and, if a court purporting to have been so created assumes jurisdiction of an offense, its proceedings and judgments are an absolute nullity.....If the court or judge is neither a de jure nor a de facto court or judge, the judgments are a nullity, and may be attacked at any time.” And this court, in Ex parte Snyder, supra, said: “Numerous cases can “be instanced from the hooks, wheré the acts of an incnmhent of an office have been held valid, upon the ground that such incumbent was an officer de facto. But an officer of that description necessarily presupposes an office which the law recognizes. And a quite extensive research has failed to discover an instance where an incumbent has been held an officer de facto, unless there was a legal office to fill; and all the cases cited from our own reports were of that sort. And as there was no such office or court known to the law as the probate and criminal court of Cass county, the conviction of the petitioner was altogether coram non judice.” In State ex rel. v. Mason, 82 Mo. App. l. c. 242, it was well said: “A court is civil or criminal, or both, according to the character of causes it has authority or jurisdiction to hear and determine. The name by which it is designated may add force to its character, but cannot control its powers or jurisdiction.”

The foregoing considerations lead us now to an examination of the Act of April 15', 1907, and to determine, if we can, the nature of the jurisdiction which was conferred upon it and whether that jurisdiction is civil or criminal. On the part of the circuit attorney, it is said, that the said court was created to supply a defect in the criminal system as applied in the city of St. Louis; that the old system worked an inconvenience and delay, to have charges of felony made by the prosecuting attorney of the city and heard in the St. Louis court of criminal correction and then to require prosecutions for felony to be prosecuted by the circuit attorney in the circuit court. Section 1 of the act under consideration provides in terms, “That said court shall be a court of record, with criminal jurisdiction, as hereafter provided.” No civil jurisdiction of any character whatever is conferred or attempted to be conferred upon it. The sections of the act which purport to confer jurisdiction upon this court as a criminal court are as follows:

Section 4. “Said court of general sessions shall have exclusive jurisdiction in the city of St. Louis of the hearing and determination of all preliminary examinations of charges of felony, and in misdemeanors, as hereinafter provided, and the judge of said court shall possess all the power of an examining magistrate in felony cases as exercised by justices of the peace generally under the laws of this State. Said judge shall be a conservator of the peace, within the city of St. Louis; he shall have power to issue writs of habeas corpus in matters of a criminal nature, and determine the same, to administer oaths and affirmations, and to take and acknowledge recognizances in all cases within the jurisdiction of said court. He shall receive an annual salary of four thousand dollars, to be paid in monthly installments by the city of St. Louis.”

■ Section 10. “Said court shall have power to. take recognizances in all cases within its jurisdiction and to declare forfeiture of the same. "When judgment of forfeiture has been entered on any such recognizance, the clerk must certify and return to the circuit court division having criminal jurisdiction in said city the recognizance and a transcript of his record in relation thereto, to be proceeded on in said circuit court as other forfeited' recognizances in criminal cases in said circuit court.”

Section 11. “Whenever, in the course of any proceeding in said court upon an information for felony, it shall appear that the defendant has been guilty, in the particular matter, of a misdemeanor only, the court shall discharge the defendant from the felony charge and may admit him to bail to answer an information for the misdemeanor to be filed by the prosecuting attorney in the court of criminal correction, or, in default of bail, commit the defendant to jail to await such action by said prosecuting attorney; but no such commitment shall be for a longer period than forty-eight ■hours; and if no such information be filed in said court of criminal correction within such period, the defendant shall be discharged. But if the defendant in such case desire to plead guilty to such misdemeanor and to receive sentence therefor, waiving his right to a jury and to an information for the misdemeanor, the court may accept such plea of guilty and assess such punishment as may be fixed by law for the offense, and issue a commitment or execution therefor, with the same force and effect as if such defendant had been tried for such misdemeanor in the court of criminal correction, and the record shall show the whole proceedings. ’ ’

A critical examination of each of the foregoing sections will demonstrate that the said court had no power to hear, determine and decide the guilt or innocence of- an accused either for felony or a misdemeanor, save and except by section 11.

In the absence of such plea of guilt, it is perfectly obvious that no judicial power had been apportioned by the Legislature to said court for the trial of misdemeanors, because the preceding portion of said section 11 provides merely for a preliminary examination, and if it appears that the defendant has been guilty of a misdemeanor only, the court is required to bail him or commit him. to await the action of the prosecuting attorney in the St. Louis Court of Criminal Correction, which has jurisdiction to hear and determine misdemeanors. The Ceneral Assembly has power to provide a criminal court in counties having a population of fifty thousand, and could doubtless create another criminal court in the city of St. Louis, if the public weal required it, in addition to all the other courts of said city now having jurisdiction of criminal causes, but this act gives no such jurisdiction, unless it can be said that the single power to sentence a prisoner for a misdemeanor upon Ms plea of g'uilty can be denominated jurisdiction over criminal causes. It is certainly an anomalous situation to denominate a body a court and to accord to it criminal jurisdiction when sucb so-called court has absolutely no power to' bear or determine or render any judgment save by and witb tbe consent of tbe accused. Heretofore, we have understood that a judgment must be pronounced by a court, a body clothed witb authority of law, a body having tbe power to bear, determine and decide, since without this power tbe requiring of jurisdiction over tbe subject-matter and over tbe person would be an idle ceremony and a mockery. Tbe prerequisite of jurisdiction over both comes down to us from tbe common law of England and is embedded in our judicial system. A judgment of a court witb us is tbe final determination of a competent court upon tbe law and facts of a given case, whether in a controversy between adverse parties or in an ex parte proceeding, and tbe rule bas become canonized that a party or parties can not confer jurisdiction over tbe subject-matter of a cause by consent. Tbe law must confer tbe jurisdiction, tbe right to bear, determine and decide; a decision by an arbiter self-constituted or chosen by tbe litigants is no judgment. The law speaks by its own appointed and duly empowered organs, and their judgments must be responsive to the law and state of facts brought before them in tbe manner prescribed by law. Tbe power to so act is what we term jurisdiction. Power to bear is tbe power to bear both sides and bear all tbe issues affecting tbe matter. By this it is not meant of course that parties may not waive their right to make issues, for instance, by maMng default, but sucb waiver, default or admission does not and can not confer jurisdiction over tbe subject-matter which tbe court would not have were tbe facts proven instead of admitted. Tbe court as a matter of law either bas or bas not jurisdiction on a given state of facts, irrespective of whether one or both of the parties admit or deny them. It must needs follow that a tribunal with jurisdiction, only if a defendant or an accused consents, is not under our system and government a court.

The mere fact that the Legislature may call it a court does not mate' it a court within the meaning of our Constitution when it uses that term. "While the first section of the Act of 1907 declares that the St. Louis Court of General Sessions is “a court” and “a court of record” it qualifies those terms by the phrase, “as hereinafter provided,” obviously referring to the jurisdiction or powers, in the act afterwards conferred, and nowhere in the act is any jurisdiction apportioned to said court in criminal causes. The conferring of the' general attributes of a court of record is not an apportionment of any part of the judicial power of the State over a given class of causes. Those attributes presuppose a lawfully constituted court with a lawfully defined jurisdiction. It follows that while the power to assess punishment for a crime is judicial power, it can only be exercised by a court, and the sole power to enter a judgment upon a plea of guilty, dissociated from all other essential and indivisible elements of judicial action, must be held to be abortive and of no efficacy.

Moreover, the provision for accepting a voluntary plea of guilty, “without an information for the misdemeanor,” is directly in the teeth of section 12 of article 2 of the Constitution of this State, which ordains that, “No person shall be prosecuted criminally for a felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies.” Under this act we have the spectacle of a court of record rendering a judgment of conviction with no information or other foundation of record upon which to bottom that judgment and furnishing no basis to the accused for a plea of autrefois acquit or convict should he be again called into court for the same offense. We have in a word a plea of guilty to a charge, no information for which could by any possibility have been filed in said court. The result is that we have, notwithstanding all our constitutional guarantees, the punishment of a citizen by fine or imprisonment in jail without any criminal prosecution therefor, because in the absence of an information for some specific misdemeanor there is absolutely nothing of which' the said court could take jurisdiction under our Constitution and laws.

If such a tribunal can be called a court, it is a court which can not act except in plain violation and disregard of all safeguards of our Constitution.

Many other reasons occur to us why said court of general sessions is devoid of all those powers and the jurisdiction essential to entitle it to be recognized as a court within the meaning of our Constitution and laws, for the punishment of misdemeanors, but we forbear and proceed now to consider some of the other contentions advanced to show that it is a court. Thus we are referred to the exclusive jurisdiction in the hearing of preliminary examinations on charges of felony and misdemeanors, and it is asserted that this is the exercise of judicial power and the body upon whom it is conferred is a court. This is not a new question in this country. In Ex parte Gist, 26 Ala. 156, the application was for habeas corpus and certiorari to discharge the prisoner who had been committed and detained under a warrant of commitment for robbing the United States mail, issued by a justice of the peace of that State, in conformity to the thirty-third section of the Act of Congress, of September 24, 1789, 1 Stat. at Large, page 91, sec. 33. Said the Supreme Court of Alabama: “It is not denied that Congress may constitutionally pass the law for the violation of which the prisoner stands committed; but it is insisted for the petitioner that the thirty-third section of the Judiciary Act confers judicial poiver upon a state officer, in violation of section 1, article 3, and the second clause of section 2, article 2, of the Federal Constitution. We concede that the power or authority conferred by this act is in its nature judicial. The justice of the peace is called upon to exercise judgment and discretion; he is to judge of the sufficiency of the affidavit on which the warrant of arrest is founded; he must determine, upon the evidence adduced against the prisoner, whether there is reasonable ground of suspicion against him, so as to require that he should be put upon trial for the offense; and he is to imprison or take bail for the appearance of the party at court to abide his trial. But, although such authority involves in its exercise judicial functions, we are very clear it does not fall within the meaning of ‘ judicial power/ in the sense in which that term is used in the third article of the Constitution.....It is manifest, we think, that by the term ‘judicial power’ is here meant that power with which the courts are to be clothed for the purpose of the trial and determining of causes,” citing Prigg v. Com. of Pennsylvania, 16 Peters 539; Moore v. People, 14 How. (U. S.) 13; United States v. Ferreira, 13 How, 48; In re Kaine, 14 How. (U. S.) 103.

In Ex parte Pool, 2 Va. Cases 276, it was held that “a commitment is not such an act of judicial power as requires that it should be exercised by courts or judges within the meaning of the third article of the Constitution ; by judicial power is there meant such regular and permanent duties as belong to courts and judges in the ordinary and popular signification of the words. A justice of the peace, or any other person designated by the Act of Congress, may be authorized to commit, although they can not be required or compelled to do so.” Bishop, in his New Crim. Proc. (4 Ed.), volume 1, section 237, says: ‘ ‘ The magistrate, in exercising this jurisdiction, appears to act, not judicially, but ministerially; at least, he does not put forth ‘judicial power,’ within the meaning of the Constitution of the United States,” citing the foregoing cases.- The first section of the third article of the Constitution of the United States provides: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The first section of article 6 of our Constitution 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 a Supreme Court,” etc. The language and import of the two instruments are .to the same purpose, a grant and distribution of the judicial power, the one, in the United States; the other, in the State. If the provision for arrest and preliminary examination in the one does not confer “judicial power” within the meaning of the Federal Constitution neither is it an apportionment 'of the “judicial power” in the other. In Ex parte Bedard, 106 Mo. 616, the Act of 1869, creating the St. Louis Court of Criminal Correction, came before Division No. 2 of this court for construction as to the right of an accused to a change of venue from the said court in a preliminary examination and it was held that in preliminary examinations for a felony the judge of the said court did not act as a court/ but as an examining magistrate, but that in the disposition of misdemeanors it was a court, and the same conclusion was reached by the St. Louis Court of Appeals in State v. Hoeffner, 44 Mo. App. 543. [Laws 1869, p. 198, sec. 21.] Our statutes, Revised Statutes 1899, section 2441, vests this power in justices of the peace as distinct from their powers as inferior courts, and not as a grant or apportionment of the “judicial power” of the State. Bishop, in his Crim. Proc., sec. 239, defines a preliminary examination as “a mere expedient to prevent the suspected person from escaping’ or for preserving the evidence, or keeping the witnesses under control.” Certainly the conclusion of the committing magistrate in no sense partakes of a judgment, for whether held over or discharged it is no har to a further prosecution by the State. [State v. Whalen, 148 Mo. l. c. 290.] As said by the Supreme Court of Alabama, the fact that some of the duties devolving upon the examining magistrate partake of a judicial character does not bring them within the grant of the judicial power of the State and constitute the said court or the judge thereof one of the courts in which the judicial power is vested by the Constitution.

But it is said the judge of said court shall be a conservator of the peace, but it will not be seriously contended that this constitutes him a court, any more than it would make a sheriff or constable who from time out of mind were known as conservators of the peace in England before the office of justices of the peace was created. [Lambard, book 1, ch. 4; In re Barker, 56 Vt. 14.]

Again, it is to be noted that the judge of said court “shall have power to issue writs of habeas corpus in matters of a criminal nature and determine the same.” It is obvious that no such power is granted to the tribunal itself and hence no part of the judicial power of the State is apportioned to said tribunal in this regard and the power conferred upon the judge to issue such writs would not make his court a criminal court. The proceeding by habeas corpus is civil and not criminal. [Ex parte Tom Tong, 108 U. S. 556.] Of course, it need only be said that the giving of the judge power to administer oaths and affirmations and to take and acknowledge recognizances does not constitute the said judge a court. The power to take recognizances in all cases within its jurisdiction is rendered futile by the fact that no criminal cause can come before it as a court.

It must therefore be held that neither one nor all of the alleged powers conferred by the act upon this so-called court, in law, constitute it a court within the meaning of our Constitution. It could not possibly be anything but a criminal court and yet no jurisdiction over criminal causes, either felonies or misdemeanors, is apportioned to it, and the attempt to confer the other powers enumerated in the act does not constitute it a criminal court.

But it is said by the circuit attorney that notwithstanding section 17 of the act is void because unconstitutional, the remainder of the act can stand. Numerous cases attest that though one section of an act is unconstitutional that alone will not authorize the courts to declare the remainder of the statute void unless all of its provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it can not be presumed the Legislature would have passed one without the other. [State v. Williams, 77 Mo. l. c. 313; State v. Bockstruck, 136 Mo. 335; State ex rel. v. Warner, 197 Mo. 650.]

If the invalid and unconstitutional section was, so to speak, the consideration for the whole act or so interwoven into it that we can readily presume the Legislature would not have enacted it but for the unconstitutional section, then the whole act must fail. The sole purpose of this Act of April 15, 1907, was to create a special tribunal in the city of St. Louis. The act created no new offense and-prescribed no punishment. Other long established courts already possessed jurisdiction and authority over every matter - attempting to be given to this -court and that jurisdiction was well understood by the bar and public. To this system, this anomalous tribunal was added at the expense of the city, and the Legislature evidently thought that as the city was to bear this additional and apparently wholly unnecessary burden, it should be in part compensated with the voluntary fines which should be paid into the registry of the clerk, and while that provision would clearly have been unconstitutional, had a lawful and constitutional court been established, we do not believe it would have been passed but for the provision reimbursing the city to the extent of those fines.

This opinion has been extended to a greater length than we desire because we are unwilling to declare and adjudge an act of the Legislature unconstitutional without a full consideration of its provisions and without being convinced beyond a doubt of its unconstitutionality. In our opinion the said Act of April 15, 1907, attempting to create the said St. Louis Court of General Sessions, is entirely unconstitutional and void and the demurrers are sustained, and the alternative writ quashed.

All concur.