State ex rel. Donham v. Yancy
27 S.W. 380
Mo.
1894
Check Treatment
Burgess, J.

— This is a proceeding in the nature of a quo warranto begun in the circuit court of G-reene county, Missouri.

*398By an act of the general assembly of the state, approved, April 26, 1889, a criminal court was established in said county. The title of the act is as follows: “An act to establish a criminal court in Greene county, and to provide for the appointment and election of the judge thereof, fixing his compensation, and to define the powers and jurisdiction of said court.”

By section 12, of said act it is provided that “the clerk of the circuit court of said Greene county shall also act as and be the clerk of said criminal court, and shall perform the same duties and receive the same, compensation as is or may be allowed to clerks of circuit courts for their services.” Laws, 1889, p. 87. At the time of the passage of the act establishing said criminal court, as well also as at the time of the commencement of this proceeding the relator was clerk of the circuit court of said county, and as such was discharging the duties and exercising the functions of clerk of the criminal court.

The general assembly, by an act, approved, April 7, 1893, detached the clerical duties of the criminal court from the office of the clerk of the circuit court and created an independent office of clerk of the criminal court of Greene county, providing for the appointment of a clerk thereof by the governor, defining his qualifications, duties, and fixing the tenure of office. To this office defendant was duly appointed and qualified, and was in custody thereof, as such clerk, at the time of the filing of the petition herein. Upon the trial in the court below, the judgment was for defendant, dismissing the petition and for cost, from which judgment relator appealed.

The first contention of the relator is that the act of the legislature of 1893, creating the office of clerk of the criminal court of Greene county is in conflict with sec*399tions 53 and 54, article 4, of the constitution of this state, prohibiting local and special legislation.

Section 53 provides that “The general assembly shall not pass any local or special law.” Section 54 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.” - .

Under these provisions of the constitution the legislature had no power to pass any local or special law, except in the manner and in the circumstances specified therein.

By section 31, article 6, of the constitution it is provided.that “the general assembly shall'have no power to establish criminal courts, except in counties having a population exceeding fifty thousand. ” It seems clear, under this section, that the legislature had the power to create a criminal court in Greene county. It was so held by this court in Ex Parte Renfrow, 112 Mo. 591. While it is not-said in exact terms in that case that the act creating said court was not special or local legislation, yet, as what was said as to the constitutionality of the act creating the court was predicated upon the section of the constitution last quoted, it may be fairly inferred that the court were of the opinion that it was not local or special.

The act in question is in no sense special or local within the meaning of the constitution because of the fact that it creates a court at one particular location. The same could as well be said with respect to all other courts in the state, to which all.persons, without regard to habitation, appeal for the redress of wrongs done them, and the adjustment of their rights. The court created by the act in question has original jurisdiction of all crimes committed within the county of Greene, as well, also, as of any criminal case that may be taken *400thereto by change of venue from any other court in the state having criminal'jurisdiction, it matters not where it may be. Its judge is commissioned and paid by the state and it matters not where the court may be held, it is a criminal court for the state as much so as the criminal court of St. Louis, Kansas City or St. Joseph.

Since the adoption of the present constitution the number of judges of the circuit courts composed of the county of Buchanan as one circuit and also of Jackson as another circuit have been increased, by legislative enactment, and it will not, wTe presume, be seriously contended that such legislation was either local or special. In State ex rel. Hughlett v. Hughes, 104 Mo. 459, it was held that an act of the legislature providing for the holding of two terms of the circuit court of that circuit at Montgomery City, in Montgomery county, was not a special or local law, and did not come within the provisions of article 4, section 54, of the constitution providing that '“no local or special law shall be passed until notice of the intention to apply therefor shall have been published in the locality. ’ ’ Brace, J., in speaking for the court, said: “It is preeminently 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 the laws passed by the legislature in pursuance thereof, and whenever and wherever held it is the circuit court of the state of Missouri, within and for the county in which it is held; it is not, and in no sense can be, a local court, nor can any law the legislature may pass regulating the time and place of holding its terms be a local law.” See, also, State ex rel. v. Field, 119 Mo. 593; State v. Orrick, 106 Mo. 111; Wilcox v. State, 3 Heisk. 110; Moore v. State, 5 Sneed, 510; Cordova v. State, 6 Tex. App. 207; Conner v. Mayor, 1 Selden, 285; State ex rel. v. Walton, 69 Mo. 556.

*401Whether an act of the legislature he a local or general law must he determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which/it operates, and if it affects equally all persons who come within its range, it can neither be special nor local within the meaning of the constitution. Moreover, the general power of the legislature to establish criminal courts in counties having a population exceeding fifty thousand is clearly recognized by section 31, article 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 population 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; State ex rel. v. Watson, 71 Mo. 470; Ewing v. Hobilitzelle, 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.

If, as we have said, the act of the legislature creating the criminal court of Greene county was not special or local legislation, and therefore, not in contravention of the constitutional provision inhibiting such legislation, it must necessarily follow that any legislation pertaining to its administrative affairs is not local or *402special. The same reasons that we have given why the act creating the court is not local nor special legislation apply with equal force to the act of 1893, creating the office of the clerk of said court and providing for the appointment of such clerk and the election of his successor or successors.

In State ex rel. v. Shields, 4 Mo. App. 259, it is held that “a law creating an office and prescribing the duties of the officer whose services are to be rendered in, and form a part of, the administration of the laws of the state, and affect equally all who come within their range, is neither ‘local’ nor ‘special’ within the meaning of the constitution.” That case involved the constitutionality of an act of the legislature creating the office of reporter of the St. Louis court of appeals, and it was held that the law was valid, and certainly, if the law passed upon in that case can be upheld as not being in conflict with the constitution, there can be no serious question as to the validity of the act of 1893. See, also, State ex rel. v. Finn, 8 Mo. App. 341.

The presumption is in favor of the constitutionality of the act and before this court would be justified 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; State v. Addington, 77 Mo. 110.

In State v. Railroad, 48 Mo. 470, the court says: “When courts 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, they approach the question with great caution * * * and never declare a statute void unless in their judgment its nullity and invalidity are placed beyond a reasonable doubt. No rule of construction is better established, both upon principle and authority, than *403that acts of the legislature are presumed to he constitutional until the contrary is clearly shown.”

In view of the rule stated in this opinion and of the decisions of this court on the validity of acts similar in principle to the one under consideration, we must hold the act of 1893 to be a valid and constitutional law.

There are a number of questions of minor importance argued by counsel for relator, but as the conclusion reached is decisive of the case, it is not deemed necessary to pass upon them. The judgment is affirmed.

All concur.