17 Mo. 529 | Mo. | 1853
delivered the opinion of the court.
Field was indicted in the Circuit Court of Saline county for neglect of duty as a road overseer, under the sixty-sixth section of the act concerning roads and highways, R. C. 969. He moved to quash the indictment because the act of March 3, 1851, in the twenty-seventh section, (Sess. Acts, 279,) provided a different and inconsistent mode for the recovery of penalties, and therefore repealed the sections of the act in the Revised Code which imposed the penalties and provided for their recovery by indictment. To this it was replied, that the thirty-third section of the act of March 3d, 1851, provided that, “if the county court of any county should be of opinion, that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order ; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force, or the special acts on the subject of roads and highways in the several counties of this state, that might take effect and be in force after the 4th of July then next.” It was alleged that, under this section, the county court of Saline county made an order at the November term, 1851, suspending the operation of the act
On all the different points on which provision is made, it professes to be the declaration of the legislative will, and the subject it regulates is one of vast importance, not only to the people of the county, but to the people of the state at large.
Yet this act is submitted to the control of every county court, to make such order for its being in force in their county as they, in their discretion, may think proper. In other words, this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which
The constitution of the state, after declaring, that “the powers of government shall be divided into three departments, each of which shall be confided to a separate magistracy,” proceeds to vest the legislative power of the government in these words : “ The legislative power shall be vested in a general assembly, which shall consist of a senate and house of representatives.” The constitution of each house of the general assembly is provided for in the constitution, the qualifications of the members, and of the electors who choose them ; the mode in which bills shall be passed and authenticated is also directed, and the machinery is complete for the exercise of the legislative power conferred upon the general assembly. The power thus conferred is the power to make laws ; and the exercise of the power is entrusted to bodies of men, who are sup
The difference between the statute which was before the Supreme Court of Pennsylvania and that now under consideration is, that the entire act there depended, for its force in any county, upon the popular vote being cast in its favor at the polls, without which it was not to be binding as a law ; while the act before us, being in its own terms the expression of the judgment and will of the legislature, allows, by its thirty-third section, the judgment and will of a county court to set aside that of the legislature and adopt a different rule. The difference between the two acts is more in form than substance. The question passed upon by the voters in Pennsylvania was, whether a law previously existing, which authorized the issuing of licenses for the salo of liquor, should be suspended for a year, so that no license during that time should be issued; and as the majority of voters determined, the law was or was not in force. The question in our act which is to be passed upon
It is the opinion of the court, that the thirty-third section of the act of March 3d, 1851, is unconstitutional and void, and that the action of the Saline county court had under that section, by which the act was suspended, was void, and therefore that the act itself was, at all times, from its first taking effect, in force in Saline county. As it.s provisions for the recovery of the penalty against the defendant are inconsistent with the provisions of the law under which he was indicted, and therefore repealed that law, the indictment was rightly quashed by the Circuit Court, and its judgment is, with the concurrence of the other judges, affirmed.