This is a proceeding to obtain a peremptory writ of mandamus against the judge of the criminal court of Jackson county, to require him to make and enforce his order against the official stenographer of his court, to furnish relator, without expense to relator, a full, accurate and complete transcript, in legible English, of all the evidence, including each and all the objections thereto with each and all the rulings of the court thereon, and the exceptions taken to the rulings of said court in the cause wherein the state of Missouri is plaintiff and the relator, Philip Martin, is defendant, in the criminal court of Jackson county, and heard, and tried before a jury, in said court on the twentieth day of October, 1893.
The petition avers, and shows that Philip Martin, the relator, and one Frank Lyle, were jointly indicted ixr said criminal court for murder in the first degree; that a severance was granted, and on the twentieth day of October, A. D. 1893, relator was put on his trial before a jury and was convicted of murder in the first degree. Relator further avers and shows to the court, that Kansas City is a city situate in said Jackson county, in the state of Missouri, having a population of over one hundred thousand inhabitants and has a court known and designated, “the criminal court of Jackson county” and that said court has jurisdiction in cases of felony; that the Honorable John W. Woffob»
It is further alleged that relator within four days filed his motion for a new trial, which was on the ninth of December, 1893, overruled by said court, to which relator duly excepted, and filed his affidavit for appeal to this court, which was duly granted,' and thereupon said court extended the time for filing a bill of exceptions in this cause until the first day of February, 1894, and that afterwards, on the thirty-first day of January, 1894, said time for filing was extended until March 10, 1894. It is then alleged that relator is only nineteen years old, is wholly without means or property of any kind; that in consideration of his poverty, the court appointed him counsel, who has rendered his services without fee or reward; that it is absolutely necessary for relator to have a complete transcript of the evidence given on the trial before he can prepare his bill of exceptions; that he has applied to the stenographer for a copy thereof, and he refuses to furnish the same without being first paid the legal fees therefor; that neither petitioner or his counsel have the means in their power to raise the necessary fees for said transcript; that on the thirtieth day of January, 1894, relator filed his motion supported by affidavits asking
An alternative writ duly issued returnable on the nineteenth of February, 1894, at which time Judge Wofford made a return and filed a demurrer, both of which tender the single issue that, admitting all the facts averred, there is no law by which said judge is empowered to make said order and require of his said stenographer a copy of the said evidence, exceptions and rulings, as asked in the said .motion therefor. The return and demurrer of the judge of the criminal court tender an issue of law only.
By an act of the G-eneral Assembly of this state, •approved March'19, 1881, entitled “An act to authorize the appointment of stenographic reporters in courts exercising criminal jurisdiction in cases of felony in cities having a population of more than one hwtdred thousand inhabitants,” and now incorporated in the Revised Statutes of 1889, under the title of “article 5,” of chapter 153, it was provided that “in cities having a population of over one hundred thousand inhabitants, courts having jurisdiction in cases of. felony shall have a stenographic reporter, such reporter to be appointed by the court, to hold his office from month to month, during the pleasure of said court, or until removed for cause shown.” R. S. 1889, sec. 8252.
If this act of 1881 applies to the criminal court of Jackson county, it is very clear that relator’s application entitles him to a transcript of the stenographer’s notes without cost to him, and to an order of the court for that purpose. And if this provision of said article 5 applies to said court, it is obvious that relator is denied a clear legal right, and has no other specific legal remedy to compel the enforcement of that right, and in such a case mandamus is the appropriate, if not the only adequate remedy, and this court, in the exercise of its original jurisdiction, will grant the writ. State ex rel. v. Tracy, 94 Mo. 217; Williams v. Judge, 27 Mo. 225; State ex rel. v. Knight, 46 Mo. 83; State ex rel. v. Philips, 97 Mo. 331.
It stands confessed by the return and demurrer that Kansas City has a population of more than one hundred thousand inhabitants. The act creating the criminal court of Jackson county (Laws, 1871, p. 110), as amended, requires that three terms of said court shall
There is no exception in the statute, and nothing that indicates that it was a local or special law, but in the brief of counsel on behalf of the respondent, the judge of the said court, it is said that section 8256 was intended to apply to the city of St. Louis only, and here lies the main controversy in this cause, for notwithstanding the population of Kansas City, and the jurisdiction of the criminal court of Jackson county, in felonies, and the requirement that said court shall be held in said city, bring it within the letter of this section, yet, if it was not within the intention of the legislature, it does not apply. People v. Ins. Co., 15 John. 380; State ex rel. v. King, 44 Mo. 283; State ex rel. v. Emerson, 39 Mo. 80; Humes v. Railroad, 82 Mo. 221. Looking, then, for this intention, no rule of construction is better settled than that the acts of the legislature are presumed to be constitutional until the contrary plainly appears. State v. Able, 65 Mo. 362; State ex rel. v. Laughlin, 75 Mo. 147.
Now, if as respondent contends, article 5 of chapter 153, Revised Statutes, 1889, was intended to apply to the city of St. Louis alone, and to a state of facts then existing, it was, and is, a special law, and falls within the prohibition of section 5, article 4, of the constitution of Missouri; but a statute applicable to all cities of a certain population is a general law, when it prescribes a
Now, there is nothing in this act that restricts it to St. Louis, nor is there a provision in it which would not apply as well to one city of one hundred thousand population as another, hence, the act is not open to the charge of being a special law. An act which embraces all persons “who are, or who may come into like situations, and circumstances, is. not a special act.” Humes v. Railroad, 82 Mo. 221.
But it is said that it was clearly intended only to apply where the city was separate from any county, and had an independent municipal government, and that it would be contrary to the use of plain language to speak of “the criminal court of Jackson county,” as “a court in a city of one hundred thousand inhabitants ;” but we are not impressed with the force of this objection. The courts which have jurisdiction to try felonies of every grade in this state, are the courts of the state. They are not the creatures of municipal government or control, and when one of these courts is appointed by law to hold, and does hold, its regular sessions in a city of one hundred thousand inhabitants, it meets every requirement, verbal or substantial, to bring it within the terms of section 8252, as “a court having jurisdiction in cases of felony,” “in cities -of one hundred thousand inhabitants.” In no other way can it be in such a city, nor are we at liberty to
But, independent of these considerations, it is said, that sections 8234 and 8237 of article 2, chapter 153, Revised Statutes, 1889, which were enacted in 1887 as new sections, contain the law governing the duties of' the stenographer in the criminal court of Jackson county, and that he was’appointed under section 8233. This last mentioned section provides that in counties, that now have, or may hereafter have a population of more than one hundred thousand and less than three hundred and fifty thousand inhabitants, the judges of the circuit courts shall appoint official stenographers for each court or division of said circuit court, and provides for his qualifications, the length of his term, and for his removal. His duties are to attend the court, take correct stenographic notes of all evidence and rulings, and preserve the same for future use or reference, and to furnish to any person a transcript of such evidence or oral proceedings upon the payment to him of the fee “hereinafter provided.” He is allowed $10 a day, and fifteen cents per folio of One hundred words-for each transcript furnished, and if the judge orders a transcript for his own use, the stenographer’s fees are taxed as other costs in the case. Nothing is said anywhere in the article with reference to any criminal court or fees in criminal cases.
The claim is that in 1887, when the provisions of article 2 were enacted, Jackson county had a population exceeding one hundred thousand and less than three hundred and fifty thousand inhabitants, but conceding this, it does not follow that this act applies to the stenographer of the criminal court. Among those-
At the time that article 2 of chapter 153, Revised Statutes, 1889, was passed, then Kansas City was a city with a population exceeding one hundred thousand inhabitants. A criminal court having jurisdiction of felonies was organized, and held three of its regular-terms in said city. The law regarding the appointment and duties of official stenographers was then in force in this state, and by its terms applied to said court in said city. Lid the general act of 1887, which, by its terms, referred to circuit courts only, repeal this law made specially for the government of criminal courts'? To justify a repeal of a statute by implication by the mere enactment of a subsequent statute, there must be a positive repugnancy between the two acts. Manker v. Faulhaber, 94 Mo. 430; State ex rel. Reid v.
But above and beyond this rule of construction, it seems to us that there are other grave reasons for holding that article 5 supra was not repealed by article 2. The constitution of this state, article 2, section 10, commands that “the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay.” In all cases of felony in which a defendant has been convicted, an appeal to the supreme court is allowed, if applied for during the term. R. S. 1889, sec. 4277. By article 4 the judge of every circuit or criminal court in counties having a population of forty-five thousand inhabitants or less is empowered to appoint a stenographer for his court. R. S. 1889, sec. 8247. By section 8251, it is provided that in criminal eases when an appeal is taken'or writ of error obtained by the defendant, and it shall appear he is unable to pay the costs of a transcript, the court shall order the same to be furnished and the stenographer’s fees taxed against the state or county as may appear proper, and in such cases the stenographer is required to furnish two copies, for one of which he receives compensation, and for the other, nothing.
By the census of 1890, there were only four counties in this state outside of the city of St. Louis that contained more than forty-five thousand inhabitants, and it is clear that section 8256 applies in St. Louis. By virtue, then, of articles 4 and 5 of chapter 153, the
This legislation is in keeping with the spirit and humanity of the enlightened age in which we live, and was in harmony with the constitution, and it emphasizes the rule of law and constitution that when a right exists all the means essential and necessary to the enforcement of that right are implied. Ex parte Marmaduke, 91 Mo. 267; Johnson’s case, 1 Grreenleaf (Me.) 230. Surely it was not the intention of the legislature to say that a defendant convicted and ■sentenced to death in the criminal court of Jackson county was less deserving of consideration, than one ■convicted of the same offense in Henry, Bates or Cass. To reach such a conclusion the statute should he susceptible of no other construction. It would hardly stand the test of reason to say that a provision like that contained in sections 8251 and 8256, could not be made to apply to every county in the state as well as to one, or in all, except one. State v. Hayes, 81 Mo. 574. We are unwilling to attribute to the legislature an intention which to us savors so strongly ■of favoritism and tends to show that the law is unconstitutional because special legislation.
Much is said about the inconsistencies that would result in the matter of costs, and the power to remove the stenographer. These are minor and secondary considerations, and are not involved here. The stenographer is an officer of the court under all these acts. He is not better than the other officers of the court. By section 4293, it is provided that: “When any appeal shall be taken or writ of error filed, which shall operate ■ns a stay of proceedings, it shall be the duty of the
The state has adopted this system of stenography. It is very onerous and expensive o'n litigants who are-able to pay for the service, but if it is to result in denying a poor person his appeal, the sooner it is dispensed with, the better. Expedition of public business, is desirable, but not at the expense of the substantial rights of litigants'. It is no exaggeration to say this., system has increased the cost of appeals in this court almost four-fold, with little or no corresponding-benefits.
We are of the opinion that section 8256 applies to-the criminal court of Jackson county, at its terms held in Kansas City and that relator is entitled to a peremptory writ commanding the judge to require the-