50 Mo. 317 | Mo. | 1872
Lead Opinion
delivered the opinion of the court.
Can there be such a thing as a de facto court where there is a rightful government ? If the government itself is a usurpation, as long as such government lasts the courts established by it are defacto courts, because the only existing government is de facto ; and when the rightful government is restored, the acts of such courts, as a matter of necessity, must be held to be valid. That is not the case in a rightful government. The authority to establish the court must emanate from the supreme power, otherwise the court itself is an absolute nullity and all its proceedings utterly void. In the State of Maine a probate judge assumed to hold a court at a place where he was not authorized by law to hold this court, and even in such case the Supreme Court of that State held the acts of the court a nullity. (See 27 Me. 114.)
These observations belong to the cause, and are not made because I consider the act of the Legislature irreconcilable with the constitution, but to indicate the deep magnitude to the people, as well as to individuals, of the question presented by this record. In Illinois the Supreme Court of the State refrained from looking
If the court had been governed by the reasoning in the fifth volume, this law would have been set aside as unconstitutional, because there is no doubt the new circuit could have been provided for by framing a general law. Afterwards, in 1868, the Supreme Court of Indiana, in an able opinion delivered by Elliott, Judge, reviews the case in 5 Ind. and expressly overrules it. But who is to decide when a general or a special law will answer the best purpose ? It strikes me that this rule, in reference to general or special laws, is laid down as'a guide for the Legislature, and the Legislature is to judge of the necessity of the particular case. The Legislature is quite as able to do this as the courts. The Legislature must, in the first instance, exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion ? If a discretion be conceded at all, in my judgment the courts have no right to control it.
It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the constitution. When the Legislature undertakes to pass these inhibited laws, it is the plain duty of the courts to declare them unconstitutional. But here we are asked to pronounce upon the necessity of a law, and whether it can be better supplied .by a general law than a special act. This is the exercise of the discretion of the court to control the discretion of the Legislature. I am not satisfied that this can be done. In The State v. Hitchcock, 1 Kan. 178, it was held that their constitutional provision, that “in all cases where a general law can be made applicable, no special law shall be enacted,” left a discretion with the Legislature to determine the cases in which special laws
But there is another clause in our constitution which may be invoked to uphold the authority of the Legislature to pass this law. By section 1 of article VI it is provided that “ the judicial power as to matters of law and equity shall be vested in a Supreme Court, in District Courts, in Circuit Courts, and in such other inferior tribunals as the general assembly may from time to time establish.” Here the authority is expressly given without limitation to establish inferior tribunals “from, time to time.” It is not intended that they should all be established át one session or by one act, but “Horn time to time,” as they may be needed. Some counties may need a Common Pleas Court, a separate Probate Court, or a Criminal Court, while others are too sparsely settled to need'them. Who is to judge of the* time when the exigency arises ? Is not this discretion expressly left to the general assembly by this clause of the constitution ? • How can the courts undertake to control this discretion ? Whatever may be said in reference to other special laws, the power is necessarily implied, if not expressly given, by this clause of the constitution, to establish inferior tribunals by special acts. I feel satisfied that the act under consideration is not unconstitutional.
An existing office without an incumbent is vacant within the meaning of the constitution, and can be filled by the governor by
In my opinion a judgment of ouster must be entered against the • defendants.
Concurrence Opinion
SEPARATE OPINION OF
In concurring with the result to which Judge Adams has arrived, I do not concur in all his views. It may or may not be that the proceedings of the several courts called into being in contravention of the constitutional clause under consideration would be held to have been void. That matter I have not specially considered, and it is unnecessary to express any opinion upon it. I should, however, imagine that a difference would be found between the acts of a court organized in good faith and under the forms of law, and which the Legislature had the power to organize, but failed to comply with a constitutional requirement in' exercising the power, and of one that existed merely in usurpation and without color of legality. A doubt, however, upon this question would greatly increase my hesitation in giving an opinion that should affect the multitude of local courts called into being by special enactment.
As to the object of the provision against special legislation I entertain no doubt. I agree with Judge Wagner that its design was to stop just such legislation as the act organizing a Probate Court in Boone county, and other acts of a like nature. The evil is great, and especially when legislation gives diversity of jurisdictions in the several counties. It is an evil which has always been endured to some extent, but which has greatly increased since the -constitutional provision designed to cure it. It would seem that our law-making body was unconscious of its obligation to conform its action to the requirements of, and respect the restrictions imposed by, the organic law.
But I am not satisfied that we have the power to remedy the evil. Some body or tribunal must decide in each case whether the object can be provided for by a general law. In some States, under a similar provision, it is held that the courts may pass upon this question, while in others the decision is referred to the Legis
It is seven years since the constitution went into operation. During every session of the Legislature it has construed, and, as I understand it, violated, the provision under consideration. The people have acquiesced in the lawfulness of its action and conformed their public business to it; the courts have treated it as legal and obligatory; and thus a practical construction has been given to the clause which should have its weight, and, in a doubtful case, be decisive.
I must, therefore, treat the clause as directory, binding upon the conscience of legislators, but, if disobeyed, the courts cannot furnish the remedy.
Dissenting Opinion
DISSENTING OPINION BY
The Legislature passed an act, which was approved April 1, 1872, establishing Probate Courts in eight counties, the county of Boone being one of the number. The act was to take effect and go into operation .on the first day of June'next after its passage, and at the ensuing November election, judges for the respective courts were to be elected. No provision was made for filling the ofiSce of judge prior to the time designated for the election. Under these circumstances the governor deemed that there was a vacancy, and proceeded to fill the same by appointment. A judge was duly appointed and qualified in the county of Boone, who demanded of the County Court the books, papers, etc., belonging to the office of probate; but the County Court refused to deliver the same, and continued to exercise probate jurisdiction, denying that the probate judge appointed by the governor was a legal officer; and this proceeding was instituted to test their right to hold and retain the before-mentioned jurisdiction.
Two questions are presented by the record. The first is, whether the establishment of the court was constitutional; and the second
While this provision has incidentally been before this court on former occasions, it has never been presented in a shape requiring the same consideration that is here demanded. In arriving at a correct conclusion and making a construction, courts must look to the history of the times, and examine the state of things existing when the constitution was framed and adopted; to ascertain the old law, the mischief and the remedy.
When there was no restraint, special legislation was one of the great evils of the day. Aside from its vicious influence on the legislative body, it produced inextricable confusion in the business affairs of the community. Laws were diverse and contradictory in adjoining counties, and a person going from one county to another, before he could transact his business, had to familiarize himself with some special or local act. In nothing wag this practice more strikingly exhibited than in the organization of local courts with special jurisdictions. In attending to a par-: ticular class of litigation in adjoining counties, resort would sometimes have to be had to a different character of court in each county. Inferior courts were established and multiplied in remote and sparsely-settled counties, where they were unnecessary and useless. It was to strike down this great mischief,.and, produce uniformity, that the provision was inserted in the constitution. By common consent it was regarded as one of the wisest,, features incorporated in that instrument. No one will dissent., from the conclusion that the greatest harmony that can be attained, in the judicial system is highly desirable. The injunction is that,, no special law shall be passed where a general law can be made-applicable.
The question was again raised in The State ex rel. Dome v. Wilcox, 45 Mo. 458, where it was contended that the statute authorizing cities, towns and villages to organize for school purposes, with special privileges, was invalid because it was not general and applicable to all. But we decided that the law was as general as was consistent with its scope and design, and no law more general could be framed to effectuate the object in view. It was, however, distinctly announced that the special statutes referred to in the constitution were such as related to individuals or particular localities; and that, had the act applied to certain specified towns or corporations, it would have been in conflict with the organic law.
In Indiana, under a similar constitutional provision, the Legislature enacted a law authorizing the re-location of a county seat of justice, and, among other things, appointed commissioners to re-locate the same. The Supreme Court held the act clearly unconstitutional. The court, in their reasoning, say that it was very evident that to prohibit special legislation was a prominent object of the convention that framed the constitution, and that the members of that body intended to limit the action of the Legislature, relative to the enactment of local or special laws, in strict conformity to the manner therein prescribed. They then make the inquiry, can such a case as the one before them be made the subject of a’general law? To which they respond: “The solution of that question is not difficult. It is not within the sphere of judicial action to point out the features of any law; that, indeed, would be treading upon -legislative grounds. But the record presents a case — the re-location of a seat of justice.
Decisions from other States, where the same constitutional prohibition exists, might be cited, showing a uniform exposition in reference to the provision. The words in the constitution must be taken in their natural and ordinary meaning. Marshall, C. J., in relation to the constitution of the United States, says: “The framers of the constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have intended what they said.” (Gibbons v. Ogden, 9 Wheat. 188.)
Bronson, J., in The People v. Purdy, 2 Hill, 31, which was subsequently approved in the Court of Errors, and cited with marked approbation by the Court of Appeals in Newell v. The People, 3 Seld. 9, declares that “written constitutions will soon become of little value if their injunctions may be lightly over-' looked, and the experiment of settling a boundary to power will prove a failure.”
Again, in the same case in the Court of Errors, in adopting Judge Bronson’s opinion, it is said: “If the courts venture to substitute for the clear language of the instrument their own notions of what it should have been, or was intended to be, there will be an end of written constitutions.” (Purdy v. The People, 4 Hill, 384.)
In construing the language of the constitution, courts have nothing to do with the argument from inconvenience. Their sole duty is to declare, ila lex scripta est — thus saith the constitution. (21 Wend. 584.)
The main principles of law governing probate matters are the same throughout the State. There is no reason why a uniform system of tribunals should not be established for the administration of that law. That there are different amounts of business to do in different counties is true, and the same thing may be said of the Circuit Court, but that furnishes no argument against a general law requiring uniformity. By reference to our legislative enactments it will be seen that these special courts have been instituted in some of the smallest counties in the State, where there was the least necessity for them. In the very act which we are now passing upon, one of the counties in which a special court is established is Maries, which is one of the least populous counties in the State. To say that a general law which is sufficient for most of the counties in the State cannot be made applicable to these counties, appears to me most singular. We know, as an historical fact, that for many years the State got along with a general system, and these special courts were almost unknown, and no evil was experienced in consequence thereof. If the system which previously obtained is defective it is susceptible of amendment, but the law must be general and uniform. Any one at all acquainted with drafting of bills or with legislative proceedings can readily see how easy it would be to frame a general law on this subject applicable to the whole State.
To sustain this law would, in my opinion, be to practically nullify the constitution and blot out one of its most important provisions. That it is the duty and province of the courts in this instance, as well as all others, to decide whether the law is in conformity with the constitution, I entertain no doubt. The case of The State v. Hitchcock, 1 Kan. 178, is the only authority I have been able to find which holds that the enactment of such laws is within the legislative discretion and cannot be controlled by the courts. The contrary view is held in all the States where they have similar
Nor do I think that any power is derived in support of this measure from that provision in the constitution which declares that the judicial power shall be vested in the Supreme Court, in Circuit Courts, and in such other inferior tribunals as the general assembly may from time to time establish. The effect of this provision is simply to invest the Legislature with power to establish inferior courts, but their establishment must be in conformity with the constitutional requirement; they must be authorized by a general law, and be uniform throughout the State.
In my opinion, therefore, the act is clearly unconstitutional. Having arrived at this conclusion, I forbear discussing the second point raised by the record.