State ex rel. Hughlett v. Hughes

1. Constitution: title of act : additional terms of court. The act of the legislature of April 11, 1889 (Laws, p. 68), entitled “An act to repeal section 1147, ef article 4, chapter 23, of the Revised Statutes of Missouri, entitled ‘ circuit courts,’ and to enact a new section to be numbered 1147 in lieu thereof, providing for the times and places of holding circuit courts in Audrain, Pike, Lincoln and Montgomery counties,” provided for two additional terms of the circuit court to be held at Montgomery City, in Montgomery county, and which is not the county seat of said county, and also required the judge and clerk of the court to make the necessary preparations therefor. Held that the act is not in conflict with article 4, section 28, of the constitution, providing that no bill shall contain more than one subject which shall be clearly expressed in its title. 2. -: special OR local law. Said act is not a special or local law; and, therefore does not fall 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.” 3. --: removal oe county seat. Nor is said act in conflict with article 9, section 2, of the constitution providing, that “ the general assembly shall have no power to remove the county seat of any county.” 4. Injunction: constitutionality oe law. ' An injunction in the-name of the state on the relation of the prosecuting attorney against the circuit judge, the clerk and the sheriff, was a proper proceeding by which to test the constitutionality of the act.

Appeal from Montgomery Circuit Court. — Hon.. Alexander Martin, Special Judge. (1) The remedy by writ of injunction shall exist m all cases to prevent the doing of any legal wrong, whatever, whenever, in the. opinion of tlie court, an adequate remedy cannot be afforded by an action for damages. R. S. Mo. 1879, sec. 2722, p. 457. And so the-inquiry is, can an adequate remedy be afforded in an action for damages, if the acts sought to be restrained are-permitted to be done, and the injunction refused ? ‘ ‘ One of the offices of an injunction is to prevent a multiplicity of suits where the whole question can be decided in one and the same. proceeding. Damschroeder v. Thias, 51 Mo. TOO ; Valle v. Zeigler, 84 Mo. 214 ; Boole v. Lari, 87 Mo. 246; Cooley on Taxation [2 Ed. ]763; Mathias v. Cameron, 62 Mo. 504; State v. Saline Co., 51 Mo. 350 ;. Newmeyer v. Railroad, 52 Mo. 81. And thus we see the object of an injunction is preventive rather than restorative. See Snell’s Princ. of Eq. [ Am. Ed. ] 481; Overall v. Ruenzi, 67 Mo. 203. ( 2) It has been uniformly held that a law is construed to be local of special, when by its application it relates to particular things or persons or a particular portion of a state, as for instance a county. Sedgwick on Const. Const’r [ 2 Ed. ] note p. 629 ; Earle v. Board, 55 Cal. 489 ; People v. Supervisors, 43 N. Y. 10 ; State ex rel. v. Judges, 21 Ohio St. 11; State ex rel. v. Hermann, 75 Mo. 340; State v. Toole, 71 Mo. 645; Slate ex rel. v. Pond, 93 Mo. 640 : State v. Kring, 74 Mo. 622; State v. PMlbrick, 15 N. J. 579 ; State v. Commissioners, 14 N. J. 587; Clark v. City, 14 N. J. 581; Frost v. Cherry, Pa. A. 782 ; City v. Savage, 13 Pa. 919. The subject of the amendment was to establish courts at another place in Montgomery county, and there is nothing in the title indicating that purpose. The act is, therefore, obnoxious to section 28, article 4, of the constitution. Ewing v. Hoblitzelle, 85 Mo. 64 j State v. Miller, 45 Mo. 497. (1) The act complained of is local, for the l’eason that it affects the people and the property of one county only, and does not, either in its subject or operation, relate to the people of the state or their property in general. Sedgwick on Stat. and Const. [ 2 Ed. ] note on p. 529; Earle v. Board, 55 Cal. 489 ; People v. Supervisors, 43 N. Y. 10; Slate ex rel. v. Judges, 21 Ohio St. 1; State ex rel. v. Hermann, 75 Mo. 340. (2) An act which affects and has its operation in one or two counties only is local. Earle v. Board, 55 Cal. 489; State ex rel. v. Judges, 21 Ohio St. 1 ; People v. Supervisors, 43 N. Y. 10 ; State ex rel. v. Hermann, 75 Mo. 340; State ex rel. v. Walton, 69 Mo. 556. (3) Though the act in question may be a general law in form, yet it is local in its operation and effect, and courts of justice cannot permit constitutional prohibitions to be evaded by dressing up special laws in the garb and guise of general statutes. State ex rel. v. Hermann, 75 Mo. 340 ; Earle v. Board, 55 Cal. 489 ; State ex rel. v. Judges, 21 Ohio St. 1. ( 4) Whether an act is local and special, or general, must be determined by its operation and effect, and not by its form. State ex rel. ¶. Judges, 21 Ohio St. 1; State ex rel. v. Hermann, 87 Mo. 340 ; Earle v. Board,'55 Cal. 489. { 5) The act com plained of, having no operation or effect except in Montgomery county, is clearly a local act, and .should have been passed as such, and notice of the intention to apply to the legislature for the passage of such act should have been exhibited in the legislature, and the substance of such notice should have been recited in the bill. Const. 1875, sec. 54, art. 4; R. S. 1879, et seq., sec. 6255, ch. 124. A law which applies only to a limited part of the state (as a county) and the inhabitants of that part is local. 2 Abbt. Law Die., p. 56. ( 6) The provisions in the act complained of, fixing the times and places for holding the circuit court throughout the district, are in each of the counties precisely the same as those of the act of March 19, 1887, and these provisions, with reference to Audrain, Lincoln and Pike counties in the act complained of, are verbatim copies of said act of March 19, 1887, with the exception that the term Monday is used in the plural in the counties of Montgomery and Pike in the said act of 1887. Hence it follows these provisions being the same as the prior laws existing at the commencement of the revising session are continuations of existing laws, and not new enactments. Act of March 19, 1887, p. 147 ; Act of April 11, 1889, p. 68 ; Act declaratory of Revised Statutes, approved May 15, 1889, p. 146; City t. Alexander, 23 Mo. 509 ; State ex rel. v. Heidorn, 74 Mo. 410. The act complained of is-violative of section 28, article 4, constitution, 1875, for the reason that the subject of the act is not clearly set forth in the title, nor is it set forth at all. The requirements of this section are mandatory. Ewing x. Hohlitzelle, 85 Mo. 64; State v. Miller, 45 Mo. 495; Gannon v. Hemphill, 7 Tex. 184; Cooley’s Con. Lim. [5 Ed.] pp. 93, 94. The title should not mislead nor tend to avert inquiry into the contents of the act. Holmes Case, 77 P a. St. 77. The title must be a fair index of the subject-matter of the bill. State ex rel. x. Miller, 100 Mo. 439. (7) This act is contrary to the precedents established by the legislature in passing acts on the same subject. Acts, 1877, p. 222 ; Acts, 1877, p. 215 ; Acts, 1879, p. 84; Acts, 1887, p. 141; Acts, 1889, p. 86. (8) Injunction is the proper remedy, and the only remedy that can be resorted to. The acts sought to be restrained are ministerial in their nature, and are wholly unauthorized by law. Such acts are, therefore, legal wrongs within the meaning of the statutes. R. S. 1889, sec. 5510; Slate ex rel. x. Court, 51 Mo. 350 ; Mathias x. Cameron, 62 Mo. 504; Railroad x. Apperson, 97 Mo. 300; Bank x. Eerehexal, 65 Mo. 682. Jurisdiction of equity to restrain public officers by suit at the relation of the prosecuting attorney or the people in violation of law to the prejudice of the public is well established. High on Injunction [2 Ed. ] sec. 1327; People x. Board, 55 N. Y. 390. The state, through its proper officers, may restrain the enforcement or execution of unconstitutional acts. 2 High on Injunctions, secs. 1282, 1304. Injunction will issue to prevent the invasion of legal rights without the proof of great damages or proof of any damages. Railroad x. Railroad, 69 Mo. 65; Com. x. Railroad, 24 Pa. St. 160 ; Bank x. Eerehexal, 65 Mo. 682 ; Harris x. Board, 22 Mo. App. 462. (1) Relator has not the capacity to bring this action, it not being against any public corporation or municipality. State ex rel. x. Court, 51 Mo. 350 ; Ewing x. Board, 72 Mo. 436. (2) Relator has mistaken his remedy. The question should be raised in the court itself, when pretending to act by some party about to be ■subjected to its process or jurisdiction. Yitt v. Owens, 42 Mo. 512; Oily ». Wright, 69 111. 318; Ewing *. Board, 72 Mo. 440 ; State n. Johnson, 4 Wall. 475. (3) The bill should be dismissed for want of equity, and, lacking this, the court will not proceed to declare an act unconstitutional upon some abstract proposition, or mere theory framed for the occasion. People v. Board, 55 N. Y. 395 ; Beckhaus v. Ordelheid, 22 Mo. App. 76. (4) Injunction would be useless, - as the action of the court now would not result in anything but an empty decree ; because, at the time of trial below, all the things from the doing of which relator fears injury had been done, and rooms and offices provided for all time to come free of cost to the county. (5) The general judiciary law of the state now provides that circuit court shall be held at certain times and places in Montgomery county. R. S. 1889, sec. 3365. (6) Whenever a power is given by statute, everything necessary to making it effectual is given by implication. Sheidley t>. Lynch, 95 Mo. 492; Boone Oo. v. Todd, 3 Mo. 140 ; Ex parte Kiburg, 10 Mo. App. 422; Harper v. Jacobs, 51 Mo. 296; 71 Mo. 454. (7) Rejecting the provisions of this act for carrying out its chief intent, the general law on the subject, without resorting to implication, authorized all the acts threatened by the defendant. R. S. 1879, secs. 1104, 623, 625, 628, 1024, 3887; Acts, 1885, p. 107; Whallon v. Ingham, 51 Mich. 504. (8) Every presumption will be indulged in favor ■of the validity of an act of the legislature, and courts wifi not declare it unconstitutional except in a very -clear case. Cooley’s Con. Lim. [3 Ed.] 181-3; State v. Laughlin, 75 Mo. 150; Stale ». Pond, 93 Mo. 606; Hamilton v. St. Louis Oo., 15 Mo. 3; Phillips v. Railroad, 86 Mo. 540; The State to use v. Aubuchon, 8 Mo. App. 328 ; Ogden v. Saunders, 12 Wheat. 270. (9) If & statute attempts to accomplish two or more objects, and is void as to one, it will still be held valid as to the others, if they can be separated. Cooley’s Con. Lim. 177, 178; Allen v. Louisiana, 103 U. S. 83; City v. Railroad, 14 Mo. App. 225 ; State r. Williams, 77 Mo. 313; Ensworth v. Curd, 68 Mo. 283. (101 Matters germane to the general subject expressed in the title to an act are properly united in the provisions of the bill. Ensioorth v. Curd, 68 Mo. 285; State ex rel. u. Wood, 71 Mo. 266; Bergman v. Railroad, 88 Mo. 678 ; Ewing ». Hoblitzelle, 85 Mo. 64. (11) The subject of the bill is clearly expressed in the title. It is sufficient if the general subject-matter is fairly embraced. Mere matters of detail need not be stated in the title ; but these are mere incidents to the general objects of the act, and do not make it a local law. State ex rel. v. Miller, 100 Mo. 445. (12) The constitution contemplates the holding of sessions of the circuit court at different “places in each county” and expressly authorizes the law-making power to fix those “places.” Const., art. 6, sec. 22. (13) The circuit court is the “judicial power of the state; ” and embodied in the person of the state’s officer, called the circuit judge, is by organic law commanded to enter each county at least twice a year to exercise its functions. Const., art. 6, sec. 22. (14) This judicial power, as lodged in the various courts established by the constitution, constitutes one of the three co-ordinate branches of the state or sovereignty, and all legislation relating thereto is necessarily general, because it relates to the power and operations of the great sovereignty itself. Const., art. 3 ; State ex rel. v. Shields, 14 Mo. App. 259. (15) No law can be local or special within the meaning of the constitution, which results directly from a specific constitutional power. State ex rel. n. Shields, 4 Mo. App. 259; State ex rel. ®. Walton, 69 Mo. 558; Ewing v. Hoblitzelle, 85 Mo. 75. (16) The people of a county have nothing to say as to when or where the state shall hold its courts, or how they shall be conducted; but the legislative branch of the government has full control of the whole matter, subject only to the one express limitation of the constitution, that “at least two terms shall be held every year in each county.” Const., art. 6, sec. 22 ; 51 Mich. 504. (17) The county seat has no connection with the-circuit court, except by association, and the constitution nowhere intimates that any session of the circuit, court must be held there. Const.; 51 Mich. 513-14. (18) The effect of the act is to establish Montgomery City as a place for holding a session of tbe circuit court of the state, not to establish a new court. Trimble v. State, 2 Greene (Iowa) 404; 51 Mich. 504.