210 Mo. 512 | Mo. | 1908
Lead Opinion
This is an original proceeding in prohibition.
Such preliminary and intermediate steps were had in the cause that, when finally submitted, it stood on an implied concession that allegations of fact well pleaded in the petition were true. Respondent’s counsel make a statement of the case admirably fair and colorless, full and brief. We borrow and use it for the purposes of this opinion, viz.:
“The relator, A. Judah, was indicted in the criminal court of Jackson county, Missouri, at the September term, 1907, for running a Sunday theater in Kansas City, Missouri. Afterwards, on or about October 24-th, 1907, by affidavit of himself and two witnesses, relator disqualified the Hon. William H. Wallace, the judge of the criminal court to try said cause. After-wards on November 30th, the Jackson County Criminal Court made an order, setting the case down for trial January 7th, 1908, before the Hon. James L. Fort of Stoddard county, Missouri, Judge of the Twenty-second Judicial Circuit in this State, and notified and requested Judge Fort to appear and try the said cause in the Jackson County Criminal Court.
*523 “The relator asks in.the petition for prohibition herein, that Judge Port he prohibited from trying the said cause in the criminal court, on the sole ground that the Hon. William H. Wallace, judge of the criminal court, was by the Missouri legislative act, approved March 19th, 1907, not then allowed to call in Judge Port or any judge of another circuit under the general statute (Sec. 2597) and was not then alldwed to call in any judge to try said cause except the Hon. E. E. Porterfield, judge of Division No. 7 of the circuit court of Jackson county, Missouri, at Kansas City.”
Referring to the foregoing statement, we shall assume that counsel mean by “section 2597” of the Revised Statutes, a new section of that number substituted for the old section, repealed in 1905 (Laws 1905, p. 131). We shall assume also that counsel, when they say that Judge Wallace can only call in Judge Porter-field, judge of Division No. 7 of the circuit court of Jackson county, Missouri, mean to say that he can only call in the judge of Division No. 7, whomsoever he may he at the time.
It serves a wholesome purpose — a judicial purpose —to say that whatever fervor or color crept into the ease in any of its preliminaries or in oral argument, has been cast aside, and it is now put to us by briefs presenting merely a serene and dignified legal question relating to a change of venue statute, to be determined dispassionately by the aid of right reason alone — to be settled, moreover, on the theory that vexed questions relating to the “sacredness of the natural right to labor,” on the one hand, and the sacredness of the Christian Sabbath of our fathers, on the other, are not in the case at bar at all and, hence, may be safely left to take care of themselves when a concrete case involving questions of law relating to either reaches this court in due course. When such vexed questions reach this court they will receive in the future as they have
It will do to say, also, that the issue here comes close home to the administration of the whole body of the criminal law in Jackson county. This is so, because, until the question shall be settled as to whether a change of venue goes from Judge Wallace of Division One'to Judge Porterfield of Division Two of that court, or vice-versa, there is left a wide open and anxious proposition — a proposition which may be injected by astuteness and desire into the trials of indictments on every grade of offense known to the criminal law in a great city. Therefore, it becomes a question that appeals, sua sponte, to the final and controlling source of judicial power; and,- therefore, it ought to be settled out of hand and not left to be determined this way or that, nisi, subject to the hazard of being determined contrary to our views, and thus lodge reversible error in criminal trials in that county at the beck and call of defendants who seek changes of venue from Division One of that court. This, is no fanciful dilemma. A change of venue is no unusual incident in a case. A change of venue in a criminal case, where the trial judge is basing his ruling on the unconstitutionality of the statute relating to the change of venue, would become an ordinary incident; for such ruling is an implied invitation to inject the question into the record to the end that an exception may be saved and a judgment against defendant be reversed, if, peradventure,
I. It cannot be doubted that (subject to a judicial discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers in excess of its rightful jurisdiction. So much is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its power in any particular matter as well as to prevent the excess of jurisdiction in a cause not given to it by law. [State ex rel. v. Foster, Judge, 187 Mo. 590; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90; State ex rel. v. Eby, Judge, 170 Mo. 497; State ex rel. v. Bradley, Judge, 193 Mo. 33; State ex rel. v. Fort, Judge, 178 Mo. 518.]
II. As presently seen, the constitutionality of certain provisions of the Act of 1907 (Laws 1907, p. 209), creating Division Two of the criminal court of Jackson county and providing for the distribution of cases between the two divisions, for changes of venue from one to the other, etc., is assailed. But before we set out to consider that question, we may profitably remind ourselves of certain fundamental and unbending rules controlling courts in the determination of a question of that grave character. For it must not be forgotten that those judges of solidest parts in wisdom — i. the crowned oracles of the law — have set bounds to them
As said by a great judge, Chief Justice Shaw (in Wellington et al., Petitioners, 16 Pick. l. c. - 96): “Courts will approach the question with great caution, examine it in every possible aspect; and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.” [State ex rel. v. McIntosh, 205 Mo. l. c. 602; State v. Layton, 160 Mo. l. c. 490; State ex rel. v. Warner, 197 Mo. l. c. 656.] It is by such guiding lights, and not otherwise, that we must determine the constitutionality of the provisions of the Act of 1907.
III. In effect, two views aré taken, arguendo, of' the Act of 1907. If we entertain either, the preliminary rule should be quashed and the peremptory writ denied. One is that certain provisions of that act are within the interdiction of those provisions of the Constitution directed against special legislation. The other may be said to be that the act may be held constitutional and yet it may be so construed that the general
The title of that act is of value in determining the scope and constitutionality of the act itself. [Sedalia ex rel. v. Smith, 206 Mo. 346.] That title is as follows (Laws 1907, p. 209): “An Act to create an additional division of the criminal court of-Jackson county, Missouri ; to provide for a judge to preside over the same; to provide for officers to attend said court; to provide for the apportionment of cases now or hereafter filed in said court; to empower the judges of said court to makes rules for the numbering and distribution and transfer of cases therein, and to make rules for other purposes; to provide for holding court in any division thereof when the judge thereof shall be unable to hold the same; to provide for the transfer of cases between the court at Independence and at Kansas City; to provide for a place to hold said court; to provide for a stenographer to attend said court; and to provide for changes of venue from, said court and from each division thereof, with an emergency clause.”
Section 1 of the act is: “An additional division, to be known as division two, is hereby created in and for the criminal court of Jackson county, Missouri. The additional office of judge of the criminal court is hereby created. Tbe judge of said court shall have all the powers of a circuit judge in criminal cases, and all acts now in force, or that may hereafter be passed
Section 2 reads: “Whenever, in the opinion of the judge of division one of said criminal court, the business of said court shall require the assistance of an additional judge to promptly dispose of the same, said judge of division one of said criminal court shall notify, in writing, the judge of division seven of the circuit court of Jackson county, and it shall thereupon be the duty of said judge of said division seven of said circuit court, with all convenient speed (but not until the conclusion of the case which may then be on trial before him in said circuit court) proceed to open said division two of said criminal court, and to proceed with the business thereof, and to continue in the performance of such duties until, in the opinion of the judge of division one of said court, that such assistance is no longer needed, and the judge of .division two shall thereupon adjourn said division two of said court finally; and said division shall stand adjourned until the assistance of said judge is again needed. All matters pending in said division two at the time of such adjournment shall be transferred to division one, and the judge of division one shall have full power to act in all such matters so transferred to his court. But the judge of division two shall retain authority to. dispose of motions for a new trial, in arrest of judgment, and similar motions, to sign bills of exceptions, to allow appeals and to make such other orders in any cases tried before him as shall be necessary to protect the rights of appeals of the defendants in such cases. If the judge of said division two shall fail to make an
Section 3 is not material here. It provides that division two shall be attended by the clerk of the criminal court and the marshal of said county or by their deputies.
Section 4 provides that division two shall have and exercise all the power and jurisdiction possessed by division one and that all the laws how in force applying to the criminal court of Jackson county which apply to division one, shall apply to division two, except as modified by the act itself.
Section 5 gives power .to the judge of division two to appoint a stenographer to perform certain duties, who shall be entitled to certain compensation, such compensation to cease as soon as division two adjourns.
Section 6 is: “Whenever said division two of said criminal court is in session, the judge thereof shall try such cases and dispose of such business as may be agreed upon between the judges of division one and division two thereof; and in case they cannot agree thereon, all cases then pending, or hereafter filed, if not already numbered, shall be numbered consecutively according to their dates of filing, and all odd numbered cases shall be assigned to division one and all even numbered cases shall be assigned to division two, while said division two is in session. ’ ’
Section 7 provides that division two may sit at Independence whenever in the opinion of the judges of both divisions and the prosecuting attorney it is thought that assistance is needed there.
Section 8 reads: “Change of venue shall be allowed by said criminal court from one division to the other division for any legal reason now allowed by law, that may be alleged against the judge of the division to which the same is made. Upon such applica
Section 9 provides that when either judge is sick or absent or for any cause cannot hold his term or part of term in division, such term or part of term by request of the judge of division may be held by the judge of the other division and if no such request is made, or the judge so requested fails to hold such term or part of term, the judge from some other circuit shall be called in to hold court for such division for the occasion.
Section 10 provides that the judge of' division seven of said circuit court shall receive the same pay when acting as judge of division two of the criminal court as he receives as circuit, judge and from the same source.
Section 11 authorizes the judge of division two to direct where his court shall be held in Kansas City until such time as the county court shall provide a suitable court room. The payment of the cost of preparation and the rent is provided for.
Section 12 is: “The judges of said criminal court in Jackson county are hereby empowered to frame and
Section 13 reads: “So much of all acts now in force and applying to said criminal court as are not repealed by inconsistency .of this act, are hereby continued and made to apply to the two divisions of said criminal court in said Jackson county.”
Section 14 reads: “All acts or parts of acts inconsistent with this act are hereby repealed.”
Section 15 reads: “The increase of the criminal business of said criminal court in saidn county being so great that the said criminal court as now constituted is unable to dispose of the same, because said business is in arrears, and is continually and rapidly accumulating and aggravating the delay in the administration of justice, an emergency is created within the meaning of the Constitution, which requires that this act shall go into effect immediately on its approval; therefore this act shall go into and have effect and be in force from and after its approval.”
(a) Is the foregoing act bad under the constitutional provisions against special - legislation ?
Plainly it includes in its scope but one court and that is the criminal court of Jackson- county. In one sense, therefore, it might be said to be a local law — a special act. If, now, the question were new, much
It is not wise to swell the opinion by restating the doctrines and propositions expounded in the cases cited. The general principle underlying all those cases was that legislation authorized by the Constitution (as was this, art. 6, sec. 31, Const.), cannot be regarded as local or special though its application is purely local, and that whether an act of the Legislature be a local or a general law must be determined by the generality with' which it affects the people as a whole rather than by the extent of the territory over which it operates; and if it affects equally all persons who come within its range it can be neither special nor .local within the meaning of the Constitution. That
In the Coffey ease the assault was made on the provisions of the act dividing the circuit court of Jasper county into two divisions, and a point was raised relating to the procedure in changes of venue. The constitutionality of the provisions of that act relating to changes of venue was sustained. Like provisions relating to changes of venue in the several divisions of the circuit courts of Jackson and Buchanan counties have been enforced by this court. [Guy v. Railroad, 197 Mo. 174; Eudaley v. Railroad, 186 Mo. 399; Leslie v. Chase & Son Merc. Co., 200 Mo. 363.]
The upshot of the whole matter is this: The judicial system of the State is a whole, and therefore acts dealing with the courts have been usually held general though not applicable to every court of like nature in the State. [State ex rel. v. Shields, 4 Mo. App. 259.]
The reasoning of all the foregoing cases may be found crisply stated in the above generalization. [See a learned note to section 53 of article 4 of the Constitution, on page 203, Mo. Ann. Stat. 1906.]
We can add nothing to what was said in the cases cited, and, upon the doctrine there announced, the point is ruled against respondent.
(b) The Act of 1907 was assailed in oral argument from another side. The contention is subtle and somewhat baffles precision of formulation. Stated broadly it seems to be thát Division Two is made a criminal court by legislative flat. The title of the Act of 1907 and the provisions following that title put so much beyond dispute. But it is contended that under the somewhat obscure and involved provisions of section two of the act, though it is a full-fledged court armed with judicial power to try criminal cases in
If a court, a judicial entity, can be created of that sleepy and novel character it would seem to be under some doctrine more honored in the breach than in the observance. If that contention be sound, then in my opinion the court has no reason to exist and ought to be pruned off as an unconstitutional excrescence. It is but a barren fig tree and should be cut down; for why cumbereth it the ground? The thing is lukewarm, so to speak, and, being neither cold nor hot, should be spewed out of the mouth. If the only question here was Hamlet’s old one, To Be, or Not to Be, and if the court could only Be when Division One says “Be,” then the law should say, “Not Be,” and put a quietus on the court itself. But if the whole act be considered from its four corners and all its intendments sought out, such notion is foreign to its provisions. If section 2 and section 8 be construed together and in the light of the manifest purpose of the law — the need and occasion of it — so as to give effect to all its provisions, it will be found that in so far as Division One may have more cases than it can try, it can dispose of such excess by transferring them (under rules to be adopted by the judges of both divisions) to Division Two. There is nothing unreasonable about
It was argued orally (as we grasped it at the time) that it is wise to leave to the judge of Division One
The Act of 1907 .is a crude piece of legislation-diffuse, cumbersome, involved, and, hence, troublesome to interpret — but when we consider that in creating Division Two and giving it full-fledged judicial power there is implied every intermediate or incidental power necessary to the performance of the main power, the trouble vanishes and we can see that Division Two in legal contemplation stands open and ready to receive cases on change of venue, and that it would violate the spirit and letter of the statute not to send such cases to that division.
The grant of power to try changes of venue, carried with it by necessary implication everything necessary to make such grant effectual (State ex rel. v. Perkins, 139 Mo. l. c. 118), including the power to meet, open court, try the case, adjourn and generally live, move and have its being as a court in that behalf.
Accordingly, we so hold.
The premises considered, Judge Fort had no legal right to take jurisdiction of relator’s case. It should' go to Division Two where Judge Porterfield by virtue of being judge of Division Seven of the circuit court has jurisdiction ex officio as judge of Division Two of the criminal court of Jackson county.
The preliminary rule is made absolute, and a permanent writ is awarded. We shall not assess the costs against Judge Fort. Let the relator páy them. It is so ordered.
Concurrence Opinion
While I fully concur in all that has been said in the majority opinion filed herein; yet I wish to add a few observations regarding one phase of the constitutionality of the act creating the second division of the criminal court of Jackson county, not touched upon in said opinion.
By section 1 of article 6 of the Constitution of 1875 •the judicial power of the State is vested in the Supreme Court, . . . circuit courts, criminal courts, •etc.
Section 31 -of said article prohibits the Legislature from establishing criminal courts, except in counties having a population of exceeding fifty thousand.
By section 28 of the same article the Legislature is authorized from time to time to provide one or more judges in circuit’s composed of a single county as the business of the circuit may require, and each judge thereof shall separately try cases and perform all other duties imposed upon circuit judges.
We will take judicial notice of the fact that Jackson county has a population in excess of fifty thousand.
It is clearly to be seen from reading the three sections of the Constitution, just mentioned, that the Legislature possessed the power to create an additional •division of the criminal court of Jackson county. This power, however, is not disputed by the learned counsel for respondent, but it is contended that the act creating the second division of that court is unconstitutional and void because it is special and local in its operation, in this:- that it confers jurisdiction upon only one of the several circuit judges of that county, namely, the one who presides over Division No. 7 thereof, to hear and determine criminal cases, and for that reason it is contended it is in violation of sections 32 and 53 of article 4 of the Constitution, which prohibits the Legislature from enacting any local or special law. The
In that case the Legislature in 1897 passed an act providing that the judge of the criminal court of Buchanan county might be called in by the circuit judge of any other county to hold a 'term or part thereof in such other county, and vesting him in such case with all the powers of a circuit judge. This court in holding that act unconstitutional, on pages 67 and 68, speaking through Judge Sherwood, used the following language: “The Act of 1897 is also obnoxious to other objections: Its operation is not uniform. In Buchanan county the judge of the criminal court has only ‘such powers as the several judges of the circuit courts of this State have in criminal cases,’ but whenever he steps over the line of Buchanan county he immediately assumes the proportions and jurisdiction of a circuit judge in civil as well as in criminal cases; Touching this topic of the uniform operation of a law, Judge Cooley observes: ‘Those who make the laws “are to govern by promulgated, established laws, not to be-varied in particular cases, but to have one rule for the rich and poor, for the favorite at court and the countryman at plough.” This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments. [Const. Lim. (6 Ed.), 483, and cases cited.] ’ ‘The Legislature may suspend the operation of the general laws of the State; but when it does so the suspension must be general and cannot be made for individual cases or for particular localities. [Ib. 482, and cases cited.] ’ By the general laws of the State the judges of the criminal courts of the State could not be called out of their respective counties to sit on a circuit bench in other counties; by the law in question that general law is suspended only in a particular locality, to-wit, Buch
But none of the objections urged against the validity of that act are tenable in the case at bar. The act in question here does not attempt to confer jurisdiction in criminal cases on a judge who had no such jurisdiction under the Constitution, for the reason that said sections one and twenty-eight of the Constitution, in express terms, confer such jurisdiction upon each and every circuit judge in the State, and no such judge is shorn of that jurisdiction by the existence or the establishment of a criminal court within any county composing a part or all of his circuit. [State v. McCarver, 194 Mo. 717; State v. Gordon, 196 Mo. 185.]
In the former case, on pages 736 and 737, Judge Burgess, in the discussion of this question, said: “The statute authorizing the calling of a judge of another circuit to preside at the trial of a certain criminal cause pending in another circuit, under the circumstances and conditions therein provided, malíes no exception against any judge who may not have jurisdiction of criminal cases in the circuit court in which he presides, because such jurisdiction is conferred upon a criminal court in that circuit; nor can any such exception be inferred from or read into the statute. Its terms apply to all circuit judges in this State, and the fact that Judge Davis did not have jurisdiction to hear and try crim
By the act in question the Legislature conferred upon the judge of Division No. 7 of the circuit court of Jackson county the same authority and jurisdiction to .hear and determine both civil and criminal cases that is possessed and exercised by the circuit judges all over the State, and he and they may be called into another circuit or criminal court when not prohibited by statute to hear and determine cases therein, as was held by the able and well-considered cases of Gordon and MeCarver, supra.
I am, therefore, clearly of the opinion that the act in question is not vulnerable to the constitutional assaults before suggested.
Dissenting Opinion
DISSENTING OPINION.
I am unable to concur in the majority opinion in this case and I deem the subject of sufficient importance to express my views as briefly as ! can in a dissenting opinion.
The act of the General Assembly entitled “An Act
My reasons for saying the act in question is not unconstitutional are as follows:
The circuit courts and criminal courts named in section 1 of article 6 of the Constitution are not mere local tribunals, but are component parts of the judicial system of the State. They are State institutions, and therefore the laws passed establishing them and prescribing their machinery are general laws, not local or special, although to some of them may be given peculiar features rendered necessary by the local considerations in the places where the courts are to sit. [State ex rel. v. Hughes, 104 Mo. 459; State ex rel. v. Field, 119 Mo. l. c. 611; State ex inf. v. Dabbs, 182 Mo. 359.] It is not a matter of mere local interest whether there be one; two or more courts having general criminal jurisdiction in Jackson county, or what judges shall preside over such courts; it is a State affair, and all the people are interested in it. The act therefore does not violate section 53 of article 4 of the Constitution. Nor is the act unconstitutional in specifying that the judge of a particular division of the circuit court of that county may be called to preside in either one of the divisions of the criminal court; because the judge so liable to be called is not designated by name, not referred to as an individual, but is called only by his official title and it applies, not only to the present judge presiding in Division No. 7, but to any judge who at the time he is called may be occupying that office. Why Division No. 7 was especially designated it is not necessary for us to know; it was for a reason satisfactory to the lawmaker, and that is sufficient. But even if
But this act is a very peculiar one. It starts off in the first section with the proclamation that “an additional division” of the criminal coqrt of Jackson county is hereby “created,” and that “an additional office of the judge of the criminal court is. hereby created,” but so far as the additional tribunal and the additional office are concerned the creation ends in that proclamation. Although in the first section we are led to expect the establisment of “an additional division,” that is, a tribunal that had not theretofore existed, and “an additional office of judge of the criminal court,” that is, a judicial office that had not theretofore existed, yet there is no provision in the act for election or appointment of an additional officer or prescribing his term of office. In the body of the act the only provision made for the exercise of judicial power is the authority conferred on the judgemf the criminal court, who it says is thereafter to be called the Judge of Division One, to' call one of the circuit judges to aid him in the disposal of criminal cases when he thinks he has more than he can dispose of with reasonable expedition. A circuit court has criminal jurisdiction, and although the General Assembly may establish a criminal court in a county having over 50,000 inhabitants and give it criminal jurisdiction, yet the subject
The Constitution requires that the judges of all courts of record shall be elected. [Sec. 30, art. 6.] And a vacancy in any office ‘ ‘ unless otherwise provided by law” shall be filled by appointment by the Governor. But there is no provision in this act for the election or appointment of an additional judge of the criminal court of Jackson county.
In my opinion, therefore, whilst the Legislature, in passing this act, started out with the proclamation that a new court and a new office were thereby created, yet it stopped before it accomplished that purpose, if that was really the purpose, and branched off into authorizing the judge of the criminal court then existing to call to his aid one of the divisions of the circuit
Calling a thing by a new name does not give it a new character. Calling the court presided over by the judge of Circuit Court No. 7 division two* of the criminal court does not make it an independent criminal court in the sense that it can come into potential existence otherwise' than by' being called into activity by the judge of the criminal court.
Neither division No*. 7 of the circuit court nor the judge thereof can, under this act, exercise any criminal jurisdiction until that judge is called to do so by the judge of division one; and division two, after being called into action, must close finally when the judge of division one says he no longer, for the present, needs it. The language of the act on that point is too plain for construction, here it is:
“Sec. 2. "Whenever, in the opinion of the judge ef division one of said criminal court, the business of said court shall require the assistance of an additional judge to promptly dispose of the same, said judge of division one of said criminal court shall notify, in writing, the judge of division seven of the circuit court of Jackson county, and it shall thereupon be the duty of said judge of said division seven of said circuit court, with all convenient speed (but not until the conclusion of the case which may then be on trial before him in said circuit court) proceed to open said division two of said criminal court, and to* proceed with the business thereof, and to continue in the performance of such duties.until, in the opinion of the judge of division one of said court, that such assistance is no longer needed, and the judge of division two shall thereupon adjourn said division two of said court finally;*549 and said division shall stand adjourned until the assistance of said judge is again needed.”
Reading this act from beginning to end it means this and nothing more, to-wit: Whenever, in the opinion of the judge of the criminal court of Jackson county, “the business of said court shall require the assistance of an additional judge to promptly dispose of the same” he is given the authority, and it is made his duty, to call to his assistance the judge of division 7 of the circuit court and that judge shall open a court and try criminal cases assigned to it and he is to continue the existence of that court as a division of the criminal court so long as, and no longer than, the regular judge of the criminal court deems it necessary, and when he deems it no longer necessary he is-to so notify the circuit judge and thereupon division No. 2 is to close finally and stand closed until in the opinion of the judge of the criminal court a necessity again arises for calling it into action.
Although the Legislature said in section 1 that “an additional office of judge of the criminal court is hereby created” yet the rest of the act shows that it did not mean what it said or else that it left the purpose unfinished. The language implies the creation of a new office, yet the term of the office is not prescribed nor how it shall be filled, whether by election or appointment. The body of the act shows that no new creation was intended but only a new use for an office already in existence.
All the rest of the act prescribing what the two divisions of the criminal court shall do and how they shall do it has in contemplation the condition existing of the circuit judge of division No. 7 having been called in to assist in the dispatch of criminal business and having not yet been notified that his aid is no longer needed. When once called in the act contemplates that he will continue until notified to “adjourn finally,”
Section 8 of the act, the provisions of which it is charged in the petition have been violated, must be construed in the light of the whole act and when so construed it means that the provisions of that section are to be observed when the fact is that the circuit judge of No. 7 has been called in conformity with the provisions of section 2, and has not been notified that his assistance is no longer needed. Even if we call the tribunal which the circuit judge No. 7 presides over, division No. 2 of the criminal court, still division No. 2 of the criminal court is not available for any purpose until the judge of division No. 1 calls it into activity and he alone is the judge of the necessity for doing so. Section 8 requires that when an application for a change of venue is made in either division for a cause disqualifying the judge of that division the cause shall be transferred to the other division. The very language of that section shows that it contemplates a situation wherein both divisions are in potential existence; but if the application for a change of venue is made in division No. 1 at a time when division No. 2 is not in potential existence the cause cannot be transferred to that division and the law nowhere requires the judge of No. 1 to call the circuit judge of No. 7 to open division No. 2 of the criminal court except when in his judgment it ought to be done,, and no other court can by mandamus or otherwise control his discretion in that respect; he may be compelled to act, but he cannot be commanded what to do. Of course when an application for a change of venue is made, as in this case, he may if he sees fit call the circuit judge of division 7 to open division No. 2 of the crirn
In the absence of any showing that Division No. 2 of the criminal court was in potential existence when the application for a change of venue in this case was made Judge Wallace had the right to “notify and request the judge of some other circuit to try the cause,” as prescribed in section 2597, Revised Statutes 1899'.
For these reasons, in my opinion, the petition- for a writ of prohibition ought to be denied.
SEPARATE DISSENTING OPINION.
GANTT, C. J. — I fully concur with Judge Valliant that, notwithstanding the language in the first section of the Act of 1907, now under consideration, to-wit, “An additional division to be known as division two is hereby created in and for the criminal court of Jackson county, Missouri. The additional office of judge of the criminal court is hereby created,” there was in fact no such additional division created, for the reason that no provision whatever was made for the election or appointment of a judge for the said division, no term of office prescribed, no qualifications defined and no compensation appropriated for his services. In legal contemplation we know of no such thing as a court dissociated from the idea of a tribunal consisting of one or more judges organized for the purpose of administering justice according to law. Bouvier says: ■ “The one common and essential feature in all courts is a judge or judges, so essential indeed, that they are often called ‘the court.’ ” The power to create and apportion the jurisdiction of a criminal court in counties having a population of fifty thousand, is vested in the Legislature, and the Legislature alone can provide for the filling of the office of judge of such a court’ either by eléction or appointment, and must fix the term, of the said office and provide for an
If the Act of 1907 has been properly construed by Judge Valliant, as I think it has, it does not repeal by implication section 2597 as adopted February 21, 1905 (Laws 1905, p. 132), as both acts can stand. Indeed we think it is obvious that the purpose of the two' acts was essentially different. The Act of 1905, which is a continuation of section 2597, Revised Statutes 1899, with certain amendments, was passed with a view to a change of venue in an individual case as it might arise and is general, having application to all circuit and criminal courts, whereas the Act of 1907 was only intended to provide temporarily for assistance to the criminal court of Jackson county when its docket should become congested, and the judge called in to render such assistance was to aid in the disposition of the docket without any reference to the regular judge of that court being disqualified for any reason, and the right of change of venue from the regular judge to such assistant judge was only given when such assistant judge had been called in and was in the discharge of his duties as additional judge or his services had not yet been dispensed with by the regular judge as contemplated in section two of the act. The law on
II. But in my opinion, the Act of March 19, 1907, entitled, “An Act to create an additional division of the criminal court of Jackson county, Missouri,” etc., was not a constitutional enactment. I reach this conclusion not on the ground that it is a special act within the meaning .of section 53 of article 4 of the Constitution, because I regard it as well settled in this State that acts of the Legislature providing for additional courts, either circuit or criminal, are matters which affect the whole State, and it has been so ruled on numerous occasions. [State ex rel. v. Hughes, 104 Mo. 459; State v. Orrick, 106 Mo. 111; State ex rel. v.
What is a legislative function has often been considered by this court. Thus in Buggies v. Collier, 43 Mo. 353, the charter of the city of St. Louis provided that: “In those cases where the city council shall deem it necessary, and also in cases where the owners of the major part of the lots or lands fronting on any paved street, etc., may petition for paving the same, the city council shall cause such repaving to be done in the manner prescribed by ordinance.” The city passed an ordinance which provided that in a certain portion of the city “the mayor is hereby authorized to cause the carriage ways of the streets thereof to be paved with wooden pavement wherever and whenever he should deem it necessary.” This court said: “It was the intention of the Legislature in conferring this power, that the council should act in determining
When the Legislature came to consider the propriety and necessity for another judge to assist in disposing of the business of the criminal court, as already said, they stopped short of providing another regular judge for said court and apparently considered that the congestion of .the business of that court could be subserved by delegating the whole matter to' the judgment and discretion of the criminal judge; they left it to that judge to détermine in his own mind when the business of said court would require the assistance of another judge, instead of determining, with the light before them, that such additional judge was needed. That the determination of the necessity of another judge was a legislative function, it seems to me too plain to admit of a doubt, but this high duty was delegated to the judge of the criminal court, who should determine for himself when the business of said court required such assistance. Can a clearer case of delegating to another so important a duty be conceived? Certainly the subject-matter of this legislation was of the gravest character. It was a provision for a judge, who should have jurisdiction to pass upon the life and liberty of the citizen, and yet the'expediency and duty of calling in an additional judge was shifted from the Legislature upon the judge of the criminal court to determine for himself whether he would call in such judge. There is nothing in the act which made it imperative that he should do so at any particular time, or at all, and yet in the 15th section of the act it is recited that: “The increase of the criminal business of said criminal court in said county being 'so great that the said criminal court as now constituted is unable to dispose of the same, because said "business is in arrears and is continually and rapidly accumulating