author: BURGESS, J.

text:
    THE. STATE v. IDA ECKHARDT, Appellant.
    Division Two,
    December 31, 1910.
    1. STATUTORY CONSTRUCTION: Ejusdem Generis: Noscitur a Sociis: Abandoning Child* The words “other place,” used in the statute penalizing the exposure of a child “in a street, field or other place, with the intent wholly to abandon it,” do not mean that the place of exposure or abandonment must be a street or field, or a like place where the exposure is as great or greater than if in a field or street, but may include “a street railway shelter or station,” which is the place of exposure charged in the indictment in this ease. The words “field” and “street” signify subjects greatly different from one another, and hence the principle of ejusdem generis does not apply, nor does that of noscitur a sociis, for the words “field” and “street” are not even remotely related, and neither derives any color from its association with the other.
    2. -: Abandoning Child: Meaning of Statute. The object of the statute forbidding the exposure of a child of tender years “in a street, field or other place, with intent wholly to abandon it” was to mane it an offense to expose “such child” in any place with intent to abandon it; and the word “expose” means to cast out, or leave or place in a probably fatal position, which of itself indicates an intention to abandon.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
    Affirmed.

      B. L. Matthews and Henry Higginbotham for appellant.
    (1) Section 1856, R! S. 1899, is both criminal and highly penal, and in derogation of the common law; is to be strictly construed, construed stricti, if not strictissimi juris; is not to be extended by implication, to include other persons, places or things than those within both its letter and spirit. State v. Gritzner, 134 Mo. 527; State v. Bryant, 90 Mo. 537; State v. Sehuchmann, 133 Mo. Ill; State v. Krueger, 134 Mo. 262; State v. Butler, 178 Mo. 319'; Dooley v. Jackson, 104 Mo. App. 32; State v. Koonze, 123 Mo. App. 661; People v. Naer, 30 Hun, 461; People ex rel. v. Sheriff, 54 Misc. 8; 22 Cyc. 527. (2) Section 1856, R. S. 1899, should be construed in the light of the related sections, 1861 and 1857, and of the common law offense and of the offense as known to the ancients. People v. Joyce, 112 App. Div. (N. T.) 717, 189 N. T. 518; Shannon v. People, 5 Mich. 91. (3) The indictment must charge all the elements essential to the offense. McDaniel v. Campbell, 78 Ga. 188; Commonwealth v. Stoddard, 9 Allen, 280; Gedney v. Dey, 44 N. J. L. 576'; Richie v. Commonwealth, 23 Ky. L. R. 1237; State v. Sehuchmann, 133 Mo. 116. (4) The words “in a street, field or other place,” are descriptive of the offense. The indictment is fatally defective because of not containing- the descriptive words the statute contains. State v. Schuchmann, 133 Mo. 116; People v. Joyce, 112 App-. Div. (N. T.) 717, 189 N. T. 518; Shannon v. People, 5 Mich. 71.

      Elliott W. Major, Attorney-General, and Charles G. Bevellej Assistant Attorney-General, for the State.
    (1) The indictment is bottomed on Sec. 4490, R. S. 1909, and fully charges every element of the crime. Stale v. Davis, 70 Mo. 467; State v. Wilkerson, 170' Mo. 191. For the purpose of charging the crime, a comparison of this section with Sec. 4479, R. S. 1909', discloses a striking similarity, and the rulings on indictments based on the section last mentioned are applicable here and fully sustain the sufficiency of this indictment. State v. Lingle, 128 Mo. 528; State v. Napper, 141 Mo. 401; State v. Summar, 143 Mo. 220. (2) The record affirmatively discloses that appellant was duly arraigned ; that a jury was properly selected and sworn and a trial had in regular order. The verdict and judgment are in regular form and in every way sufficient. Under these conditions, this court can but affirm the judgment. State v. Miller, 209' Mo. 389; State v. Brown, 206' Mo. 718. •
   BURGESS, J.

Defendant and one Clara Shabulak were jointly indicted, charged with exposing, with intent wholly to abandon, a child under the age of six years, which child had been confided to them by a person or persons unknown. Defendant was thereafter duly arraigned, entered her plea of not guilty, and-, upon her motion, a severance was granted. The trial resulted in a verdict of guilty, her punishment being assessed at two years in the penitentiary. Her motions for new trial and in arrest of judgment having been overruled, defendant appealed from the judgment of conviction.

No bill of exceptions was filed in this case, and the only error assigned relates to the sufficiency of the indictment. The indictment is bottomed on section 1856, Revised Statutes 1899' (sec. 4490, R. S. 1909), which is as follows: “If any father or mother of any child under the age of six years, or any other person to whom such child shall have been confided, shall expose such child in a street, field or other place, with intent wholly to abandon it, he or she shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months.”

The charge in the indictment is “that Ida Eckhardt and Clara Shabulak, on the 13th day of August, A. D. nineteen hundred and eight, at said county of St. Louis, and State of Missouri, did then and there unlawfully and feloniously expose a certain child under the age of six years, to-wit, of the age of fourteen days, in a certain street railway shelter or station, with intent to unlawfully and feloniously wholly abandon said child, said child having been confided to them, the said Ida Eekhardt and Clara Shabulak, by person or persons unknown, contrary to the form of the statute,” etc.

Defendant contends that the place of exposure and abandonment “must be a street or field, or like place, where the exposure is as great or greater than if in a field or street, and not in a place of shelter as charged in the indictment. ’ ’ By this contention we understand the defendant to invoke the doctrine of ejusdem generis, a familiar rule of construction, that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. “The rule is based on the obvious reason that if the Legislature had intended the general words, to be used in their unrestricted sense they'would have made no mention of the particular classes. The words ‘other’ or ‘any other,’ following an enumeration of particular classes are therefore to be read as ‘other such like,’ and to include only others of like kind or character. The doctrine of ejusdem generis, however, is only a rule of construction, to be applied as an aid to ascertaming the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. Nor does the doctrine apply where the specific words of a statute signify subjects greatly different from one another; nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless.” [36 Cyc. 1119-1122.] This definition fairly and clearly explains the meaning, purpose, manner of applying and limitations of the doctrine invoked.

It is very clear to us that the principle of ejusdem generis cannot be applied here, nor yet the doctrine of noscitur a sociis, for the words ‘ ‘ street” and ‘‘ field, ’ ’ appearing in the statute, are not even remotely related, and neither derives any color from association with the other, but each stands as the representative of a distinct class. The meaning, then, of the general expression “or other place,” in the statute is not restricted or affected by the preceding particular words, which “signify subjects greatly different from one another.”

Endlich on the Interpretation of Statutes, section 409, says: “Further, the general principle in question applies only where the specific words are all of the same nature. Where they are of different genera, the meaning of the general word remains unaffected by its connection with them. Thus, where an act made it penal to convey to a prisoner, in order to facilitate his escape, ‘ any mask, dress, or disguise, or any letter, or any other article or thing,’ it was- held that the last general terms were to be understood in their primary and wide meaning, and as including any article or thing whatsoever which could in any manner facilitate the escape of a prisoner, such as a crowbar. [Reg. v. Payne, L. R. 1 C. C. 27.] ”

The great fundamental rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. For the purpose of discovering the legislative intent it is proper, and often necessary, to consider the history of the statute, the reason for its enactment, and the prior state of the law on the subject to which the statute relates. [Gabriel v. Mullen, 111 Mo. 119; Greeley v. Railroad, 123 Mo. 157; Missouri Light Co. v. Scheurich, 174 Mo. 235; State v. Balch, 178 Mo. 392.]

Our statute first appears in the Revised Statutes of 1835, p. 172, and except for a minor change in the punishment, has remained unchanged since its adoption. The section is substantially a copy of a provision in the Revised Statutes of New York; 1829 (vol. 2, p. 665, sec. 35), the only difference being that the New York statute contains the words, “expose such child in any highway, street, field, house or outhouse,” while the words in our statute are ‘ ‘ street, field or other place.” There is no doubt in our mind that the object of our lawmakers in making such change was to broaden the scope of the statute, and render it an offense for any such person as therein designated to expose a child in a street or field, or any other place, no matter where, with intent wholly to abandon it. This view is strengthened by the fact that the New York Legislature, probably moved by the same considerations as ours, repealed the old and enacted a new law in 1881 (New York Laws of 1881, chap. 676, sec. 287), which reads as follows: “A parent or other person having the care or custody, for nurture or education, of a child under the age of fourteen years, who deserts the child in any place, with intent wholly to abandon it, is punishable by imprisonment for not more than seven years.”

If the statute were construed as suggested by defendant’s counsel, it would lead to the most absurd and dangerous consequences. Suppose the places of exposure named therein were increased in number so as to include, we shall say, a house, outhouse, yard, garden, orchard, etc. What then? A child might be exposed and deserted in a tent, and be exposed to as much danger there as in any of the other places named. A maxim of law which well applies here is, that “as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated. ’ ’

With reference to the word “expose,” as used in the statute, there is no difficulty as to its meaning. A very respectable authority, Webster’s New International Dictionary, gives one definition of this word as: ‘ ‘ To turn or cast out; to place and leave in a probably fatal position; to abandon; as, to expose an infant.” That this is the sense in which the word is employed in the statute there can be no doubt. In view of this definition, which we accept as the proper one here, a child could be exposed in a “street railway shelter or station” as much as in a street or field.

Shannon v. People, 5 Mich. 71, was a prosecution under a statute similar to ours. Construing the statute, the court said: “At common law, the exposure of a child, with intent to abandon, was no offense, unless injury to the child actually ensued; and then the crime was measured by the event. In other words, the common law punished only the injury, not the. exposure to, or hazard of, the injury. [Reg. v. Hogan, 5 Eng. L. and Eq. 553; Reg. v. Renshaw, 20 Ib. 593 ; Ib. 591; 1 Bishop, Cr. Law, sec. 413.] But it was often difficult to determine whether ..the injury in a given case was the result of the exposure, or of some other cause; besides, this remedy, after the mischief was done, came too late. The object of the statute obviously was to meet the exposure to injury in limine;, to prevent the hazard of injury, and to punish as a crime the act creating the hazard. ’ ’

We find nothing wrong with the indictment in this case. It is sufficient under the statute, and the record being free from error the judgment is affirmed.

PER CURIAM. — This opinion was prepared by Burgess, J., prior to Ms death, and as it expresses onr views we hereby adopt the same a.s onr opinion and the opinion of the conrt.

All the judges concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. W. E. WILES, Appellant, v. SAMUEL H. WILLIAMS.
    In Banc,
    December 31, 1910.
    1. CONSTITUTIONALITY OF STATUTE: Raised by Ministerial Officer. Ordinarily a ministerial officer, such as a county treasurer, whose duties are purely ministerial, has no right to refuse to perform that duty on the ground that the statute creating a right or the duty, is unconstitutional; nor has he the right, of his own motion, when sued on a warrant which he has declined to pay, to defend on the ground that the stature, authorizing the issuance of the warrant, is unconstitutional. But when he has been advised by the Attorney-General that such statute is void, and directed by the county court not to pay said warrant, he does have the right on being sued on the warrant, to interpose the defense that the statute is unconstitutional and void.
    2. CONSTITUTIONAL LAW: Special Law: Applicable to Only One County. An act providing that “in all counties whose population, as ascertained by the United States census of 1900, is 32,000 inhabitants or over and less than 50,000 inhabitants, all prosecuting attorneys shall receive a salary of $2500 per annum, and no other remuneration whatever,” is a special and local law, and unconstitutional. It can apply only to the counties which on the day of its enactment had the requisite population.
    3. -: -: -: General Law Applicable. Said act is also unconstitutional because a general law on the subject could have been enacted, whereas it applies only to the counties which at the time of its enactment had the requisite population.
    4. -: Two Subjects: Creating Office and Fixing Salaries. An act amending a statute and so changing it that a county officer’s compensation is changed from fees and a salary, to a larger salary only, is not unconstitutional as embracing two subjects, because it gives bim a salary but no fees, and creates an assistant and fixes bis compensation at a definite salary. Tbe matters are germane anfl congruous.
    5. -: Uniform in Operation: Salaries of County Officers. A statute fixing tbe compensation of prosecuting attorneys at a definite salary, in lieu of fees and a smaller salary, in all counties having a named population, is not violative of that part of tbe Constitution providing that “tbe General Assembly shall, by a law uniform in its operation, provide for and regulate tbe fees of all county officers, and for this purpose may classify tbe counties by population.” Even though tbe law is special and local, it is uniform in its operation upon all matters and things embraced within its provisions.
    Appeal from Nodaway Circuit Court. — Hon. Alvin Bingaman, Special Judge.
    Affirmed.

      L. C. Cook, W. H. Crawford, W. W. Ramsay and: W. E. Wiles for appellant.

      A. F. Harvey and T. A. Cummins for respondent.
   WOODSON, J.

This is a petition for mandamus, instituted by the relator as prosecuting attorney of Nodaway county against the respondent, as treasurer thereof, seeking to compel the latter to pay a warrant for $208.33, drawn by the clerk of the circuit court of said county in favor of the former for his salary as such attorney for the month of April, 1909', as provided for by the Act of March 29, 1907, Laws 1907, p. 274 An alternative writ of mandamus was issued by the circuit court, and in due time the respondent filed his return thereto. A trial was had before a special judge, selected according to law, which resulted in a finding for respondent and a judgment denying the peremptory writ. From that judgment the relator appealed.

The legal propositions presented for adjudication will better appear by a presentation of the alternative writ, and the respondent’s return thereto. The former reads as follows (formal parts omitted):

“To Samuel H. Williams, Treasurer of Nodaway County, Greeting:
“Whereas, It has been represented to the judge of the circuit court of Nodaway county, in the State of Missouri, by the petition of W. E. Wiles, as follows, to-wit:
“Your petitioner, W. E. Wiles, respectfully represents that he is the duly elected, qualified and acting prosecuting attorney, within and for the county of Nodaway and State of Missouri; that on the 1st day of January, 1909', he entered upon the duties of said office and has ever since and to this date has performed the duties and services of such officer; that he was elected to said office on the 3d day of November, 1908, and duly commissioned by the Governor of said State to hold said office for a period of two years, beginning on the first day of January, 1909.
“Your petitioner further represents that Eugene Rathbun and Samuel H. Williams are respectively the duly elected, qualified and acting clerk of the circuit court, and treasurer of said Nodaway county.
“Your petitioner further states that under and by the provisions of the law of the State of Missouri, as contained in sections numbered 3237 and 4949, Revised Statutes of 1899, and section numbered 3237a, Laws of 1907, page 274, the salary of the prosecuting attorney in all counties in said State, having a population of 32,-000 or over and less than 50,000 inhabitants, as ascertained by the United States census of 1900, is fixed at $2500 per year, to be paid monthly by warrants drawn by the circuit clerk upon the county treasurer; that said Nodaway county has a population of more than 32,000 inhabitants and less than 50,000' inhabitants, as is required by the aforesaid sections, and your petitioner as such prosecuting attorney is entitled thereunder to the sum of $2500 per year as his salary for the performance of the duties of his said office.
“Your petitioner further represents that on the 1st day of May, 1900, he filed with the said Eugene Rathhun, circuit clerk as aforesaid, a statement'showing the amount due him as his salary aforesaid for the month of April, 1909; that thereupon the said Eugene Rathhun, as said circuit clerk, issued and delivered to petitioner a warrant drawn on the treasurer of said county in the sum of $208.33, the same being the amount due petitioner as his salary for said month of April, and which said warrant is in words and figures as follows:
No. 4. $208.33. Treasurer of Nodaway County, Missouri. Pay to W. E. Wiles, two hundred eight and 33/100 dollars. For one month’s salary as prosecuting attorney from April 1, 1909, to May, 1909. Out of money in the treasury appropriated for Salary Fund. Given at my. office in Maryville, Missouri, this first day of May, 1909.
(Seal) EUGENE RATHBUN, Circuit Clerk.
“Tour petitioner further presents that on the 3d day of May, 1900, he presented said warrant to the said Samuel H. Williams, in the office of the said treasurer, and demanded of the said Samuel H. Williams, as treasurer aforesaid, the payment thereof; but that the said Samuel H. Williams, as such treasurer, refused to pay the same or any part thereof to petitioner; that a.t the time petitioner presented said warrant to said treasurer as aforesaid, there was and now is in said treasury in the keeping of said treasurer sufficient money belonging to said county and duly appropriated to the salary fund, to pay said warrant; that said Williams refused to pay said warrant and declares an intention to continue to refuse to pay the same, so that petitioner has been and is unable to secure his aforesaid salary for the said month of April, as is justly due him and evidenced by said warrant.
“Tour petitioner further states that he is remediless in the premises by or through ordinary process of proceedings at law.
“The judge of said court, being willing that due and speedy justice be done to the said W. E. Wiles in this behalf, commands you that immediately after the receipt of this writ you do, without further excuse or delay, upon the presentation ,of the aforesaid warrant, pay the same to the said W. E. Wiles, in full amount as is represented by the said warrant, o.r show cause before the circuit court. of Nodaway county, Missouri, held at Maryville in said county on Monday, the 21st day of June, next ensuing, why you should not do so.
“Herein fail not at your peril, and have you then and there this writ. ’ ’

The return of .respondent is as follows (formal parts omitted):

“Comes now Samuel H. Williams and for return to the alternative writ of mandamus issued in the above entitled cause, says that said writ should not be awarded against him for the following reasons:
“1st. Respondent denies that he is now or was at any time the county treasurer of Nodaway county, but avers that he is' now and has since April 1, 1909, been the duly elected, qualified and acting county treasurer and ex-officio collector of the revenue in and for said Nodaway county, which office respondent says is another and different office to that of county treasurer; that Nodaway county is now and was at all times hereinafter mentioned under and governed by chapter 168 of the Revised Statutes of Missouri of 1899, known as the township organization laws, which was on the-day of November, 1906, adopted in said county.
“2d. Respondent says that relator is now and has. been since January 1, 1900, the duly elected, qualified and acting prosecuting attorney in and for said county, having been elected in November, 1906, and that Eugene Rathbun is the clerk of the circuit court of said county, and that Nodaway county had a population of more than 32,000 and less than 50',000 according to the United States census of 1900; that on the 3d day of May, 1909, relator presented to said Samuel H. Williams a purported warrant for the sum of $208.33, alleging on its face to be the salary 'of the prosecuting attorney from April 1,1909', to May 1,1909, which purported warrant was dated May 1, 1909, requesting said treasurer to pay to relator out of the-salary fund of. said Nodaway county said sum, and was signed by Eugene Rathbun, circuit clerk, and that payment thereof was refused.
“3d. Respondent denies that under the provisions of .sections 3237 and 4949, 3237a, Laws of 1907, page 274, or under any other sections' or any law or statute of the State of Missouri, the relator as such prosecuting attorney is entitled to a salary of $2500 per annum, or that the same should be paid monthly by warrants drawn on the county treasurer or any other person, or drawn by the circuit clerk of said county or any other person, or paid monthly or at any other time.
“4th. Respondent denies that there was in-, the treasury of said county on said 3d day of May, 1909, or at any time, any money or funds whatever subject to or which had been lawfully appropriated for the payment of the alleged warrant aforesaid or any money or funds of said Nodaway county in his possession or control which could be lawfully used for such purpose.
“5th. Respondent says that as snch county treasurer and ex-officio county collector of said Nodaway county he has in his charge, possession and control the moneys and. funds belonging to and the property of said county collected by taxation from its taxpayers; that he holds and retains the same and pays out said funds as the agent and trustee of said county and its taxpayers, and as such officer he has no right and is not permitted by law to pay out or disburse any of said money or funds to any person or for any purpose except upon an order of record of the county court first had and obtained, and upon a warrant therefor drawn and signed by the presiding judge and clerk of said county court and in the manner and form provided by article 4, chapter 97, of the Revised Statutes of 1899'.
“6th. Respondent further says that the county court of said county by its order of record duly made on April 26,1909, ordered and directed this respondent not to pay any warrant drawn by said Eugene Rathbun out of any fund belonging to said^ Nodaway county, which order is in words and figures as follows:
Whereas, the Attorney-General of this State has advised this court, and this court after due consideration has found and adjudged, that the act of the General Assembly of Missouri, approved March 29, 1907, entitled, Pees — Prosecuting Attorneys, found on page 274 of the Laws of Missouri of 1907, is void, unconstitutional and of no effect, it is therefore ordered and adjudged by the court that no money or funds belonging to said Nodaway county be used or appropriated in payment of any warrant or order drawn upon the county o'r treasurer thereof, and it is further ordered and adjudged that the county treasurer and ex-officio county collector of said Nodaway county, Samuel H. Williams, be not allowed credit on his accounts with said Nodaway county for any money used or paid upon any warrant or order issued, drawn or paid under or by virtue of said act of the Generai Assembly above mentioned, and that the said Samuel H. Williams be held upon his official bond’ for any and all moneys or funds of the sa'id county used or paid out by him or by any one for or under him, under, by virtue of and in pursuance of said above mentioned act or purported law; that said Samuel H. Williams be served with a copy of this order issued under the hand and seal of this court.
“Which said order is valid and binding upon this respondent.
“7tb. Respondent further says that tbe purported warrant to tbe said Wiles before described is issued, drawn, presented and payment thereunder claimed out of the revenue funds of said county solely upon and by virtue of section 3237a, Laws of Missouri, 1907, page 271, which said act aforesaid is unconstitutional, illegal and void and of no effect, and is no right or authority whatever authorizing or justifying and does not permit respondent to pay out to any one, or use or consume any of the revenue funds or moneys belonging to' said county; that the subject-matter of said act is not clearly expressed in the title, and the title thereto is not broad enough to embrace the subject-matter in the body of said act, and is in violation of section 28 of article 4 of the Constitution of the State of Missouri; .that said act contains more than one subject, namely, the salary of the prosecuting attorney, the subject of fees, and the creation of another office of the State, an assistant prosecuting attorney, and also providing his salary, all of -which is in violation of section 28 of article 4 of the Constitution of the State of Missouri;' that said act is in violation of section 12 of article 9’ of the Constitution of the State of Missouri in that it is not uniform in its operation; that said act is in violation of section 53 of article 4 of the Constitution of the State of Missouri’, in that it is local and special, does not apply to all localities of any one general class, either at the present time or at the time when the same was enacted, and makes no provisions for counties that may hereafter have the population it prescribes, and no provision for counties that had the population it prescribes at the time it was enacted.
“8th. Respondent says that relator has since January 1,1909, claimed, received and collected fees under section 3237 of the Revised Statutes of 1899, which are taxed as costs in criminal prosecutions instituted since said 1st day of January, 1909, and is thereby estopped to claim under said section 3237a.
“9th. Respondent further states that by reason of the premises aforesaid the. said purported warrant is illegal, void and of no force or effect, and that it is in violation of respondent’s duties as such officer in charge of the public revenue funds of said county as aforesaid to pay said illegal warrant and thereby withdraw from the treasury of said county the public funds, wherewith he stands charged as aforesaid; that the same would be in violation of his oath of office and a breach of his official bond as custodian of said county funds; that the said Eugene Rathbun has no legal power or authority to sign or issue said purported warrant, and the said relator has no legal right or authority to receive the same, or demand payment of the same o.r to receive or claim out of the county treasury of said county any of the county revenue funds thereon. ’ ’

To this return relator filed a reply, which in legal effect was a general denial of the new matters stated in the return.

The relator and respondent, respectively, introduced evidence tending to prove the allegations of the alternative writ and those of the return.

I. The facts of this case are practically undisputed, and the only matters presented by this record for determination are propositions of law, namely: First, can a ministerial officer raise the constitutionality of a statute requiring him to perform a ministerial duty by refusing to obey the statute? and, second, is the act of March 29, 1907, Laws 1907, page 274, constitutional? We will consider those propositions in the order stated.

As regards the first, there can be no question but what the duties of the respondent under the laws of this State are purely ministerial. [State ex rel. v. Adams, 161 Mo. 349; State ex rel. v. Meier, 143 Mo. l. c. 447; State ex rel. v. Haynes, 72 Mo. 378.]

This being true, then recurring to the question, can the respondent raise the constitutionality of the act mentioned? That question, where the point has been raised, has been answered in the negative by the overwhelming weight of authority in this State, and elsewhere.

Judge Wagner, in the case of State v. Douglass, 50 Mo. l. c. 597, said: “Every law of the Legislature, however repugnant to the Constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted; but must be received and obeyed as, to all in tents and purposes, law, until questioned in, and set aside by the courts. ’ ’

And Judge Burgess, in State v. Seebold, 192 Mo. l. c. 731, in speaking, for this Court in Banc, said: “Nor will a court listen to an objection made to the constitutionality of an act of the' Legislature, by a party whose rights it does not specially affect. An act of the Legislature will be assumed to be valid, until some one complains whose rights it invades; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained.”

The language above used was taken from Jones v. Black, 48 Ala. 540, cited Shehane v. Bailey, 110 Ala. 308, to support it, declared it to be the law of this State, and added, “Only such persons as are in some way prejudiced by an unconstitutional law can complain of it.” To the same effect are Commonwealth v. Wright, 79 Ky. 22; State ex rel. v. Currens, 111 Wis. 431.

In the Seebold case, the defendant had been indicted for selling liquor in violation of the excise law; and, in discussing that question, Judge Burgess further said: “The defendant is in no position to raise objection, and will not be heard to question the constitutionality of the excise law, because, in the first place, the revocation of such license is not punishment within the meaning of the law, and, because, in the second place, his personal or property rights were not affected by the act of the excise commissioner in .revoking his license, and he has, therefore, no interest in defeating the law. The statute is assumed to be valid until some one complains whose rights it invades. Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the- aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect fox the Legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers.” See also Cooley’s Constitutional Limitations (7 Ed.), p. 232;.Cunningham v. Railroad, 165 Mo. 270; State v. Hathaway, 106 Mo. 236.

The same conclusions have been reached by the courts of many of our sister States, as well as by the courts of the United States.

In Commonwealth ex rel. v. James, 135 Pa. St. 480, it is said: “It is too plain fox argument that the appellant, who is the clerk of the court of quarter sessions of Luzerne county, had no right to decline to receive and record the resolutions of the school boards of "Wilkes-Barre, accepting the provisions of the act. of May 23, 1889. The act referred to requires him to receive and record these papers; his duties are purely ministerial, and the court below properly awarded the peremptory mandamus. It is but just to say that his act in refusing does not appear to have been one of insubordination, but was intended to test the constitutionality of the said Act of 1889. We are of opinion that the constitutional question cannot be raised in this way. The order of the court below is affirmed. ’ ’

In Friedman v. Horning, 128 Mich. 606, the board of supervisors of the county had issued a warrant to one of its members, in payment for official services. The treasurer refused to pay the warrant, on the ground that Friedman was not a legal supervisor, and that the board had no authority to issue him a warrant. Mandamus being brought to compel payment, the Supreme Court of Michigan said: “The board recognized Mr. Friedman as a de facto officer, and allowed his account. It was not for the county treasurer, a ministerial officer, to. say he was not a de juo’e officer, and that the action of the board was illegal. If he' could do that in this case, he could say, when an order was presented to him which was issued to pay the bill of a constable, that the constable,had not performed the service, and the action of the board was illegal in allowing his claim, and therefore he would not pay it. It can easily be seen how unseemly such a result would be. Upon the refusal of the treasurer to pay this order, the aid of the circuit judge was invoked. He issued the writ, directing payment, and his action is affirmed. ’ ’

In State ex rel. v. Heard, 47 La. Ann. 1679, mandamus was brought to compel the State Auditor to issue, and the Treasurer to pay certain warrants.. These officers had refused, on the ground that the legislative act authorizing such issue and payment was. unconstitutional. The proposition was there made that these officers could not raise the constitutionality of the act by refusing to obey it. The authorities were reviewed from many of the States, and the court stated its conclusion in the following language: “In mandamus proceedings against a public officer, involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute, and the ministerial character of the duty he is charged to perform. After a careful investigation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in Nicholls v. Shakspeare, and other cases, to the effect that the executive officers of the State governnjent have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the Constitution. Laws are presumed to be and must be treated and acted upon by subordinate executive functionaries as constitutional and legal, until their unconstitutionality or illegality has been judicially established, for, in all well-regulated government, obedience to its laws by executive officers is absolutely essential, and of paramount importance. Were it not so, the most inextricable confusion would inevitably result, and ‘produce such collisions in the administration of public affairs as to materially impede the proper and necessary operations of the government. It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it.’ The result of this conclusion is that the respondents are without right to urge the unconstitutionality of the concurrent resolution which is involved. . . . The judgment of the court below was in favor of relators, and it is affirmed. ’ ’

The case last mentioned seems to be the leading case in this country upon the question here presented, and reviews at' great length the authorities on both sides thereof.

So in Thoreson v. State Bd. of Examiners, 19 Utah, 18, it is said: “Where a statute requires an officer to perform a ministerial act, he will not be permitted, in a mandamus proceeding, to plead in justification of non-performance that the act would violate the Constitution. The decision [of the constitutional question] was the exercise of a judicial function. No such judicial power was conferred [upon the officer]. He had no greater personal interest in the matter'than any other citizen of the State. To allow mere ministerial officers, who have no direct personal interest in the matter, to refuse to perform . . . their duty, on the ground that the performance of the act would violate the Constitution, would he establishing a very dangerous precedent. ... It would be deciding a constitutional question, affecting the rights of third persons, at the instance of officers whose duties' are merely ministerial, and who have no direct interest in the matter, and cannot in any event be made responsible. ”

And the Supreme Court of Nebraska in State ex rel. v. Stevenson, 18 Neb. 421, said: “It may well be doubted if the incumbent of a ministerial office, created by, and whose current duties rest solely upon, legislative authority, may invoke the provisions of the Constitution as a justification of his refusal to discharge a plain statutory duty. Under our present system, lawsuits may be prosecuted or defended only by a real party in interest. Such party alone has the right to make a record which will render the question litigated res judicata. The respondent can have no greater interest than that of any other citizen in the constitutional question which he invokes.”

The same question came before the Supreme Court of Florida, and in the case of Franklin County Commissioners v. State ex rel., 24 Fla. 55, the court said: “The court will not listen to an objection made to the constitutionality of a statute by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. A party who seeks to have a statute declared unconstitutional must not only show that he is o,r will be injured by it, but he must also show how. . . . The duty of the commissioners being merely to receive and keep in their official custody the returns, such duty involves no consideration by them of the legality of the election, . . . nor does it permit them to raise . . . the question of such legality as a reason for not performing their stated functions; nor does its performance decide or conclude anything as to the legality of the election, but merely preserves the evidence of the result. ... As county commissioners they are not charged with the duty of raising the question in behalf of those who may have personal interests which the enforcement of the Constitution may affect.”

In Maynard v. First Representative District of the Board of Canvassers, 84 Mich. 228, it is said: “At the threshold of this controversy is an insurmountable objection to the position taken by the respondent, if it were insisted upon. The sole duty of the canvassers . . . is to examine the original statements, . . . and issue certificates. ... It was never contemplated by the Legislature that they should possess any other power than to canvass the returns and to declare the result. . . . It is said that constitutional questions have often been raised and decided by this court in mandamus proceedings. This is true where personal and property rights are involved, and great inconvenience and damage would result if prompt action were not taken. In such case the public officers or body charged with the performance of duty may either decline to act, on the ground of the alleged unconstitutionality of the law, or he may proceed. . . . But this does not apply to cases where the duty of the officer is only clerical or ministerial, and the law provides an ample remedy afterward to test the validity of his action. ... In such case, the officer must perform his duty, and leave the parties interested to contest the result in the proper forum and by the proper proceeding. He should not, in such case, be heard to plead the unconstitutionality of the law as an excuse for his refusal. ’ ’

And the Supreme Court of Maine, in Smyth v. Titcomb, 31 Me. 272, said: “A ministerial officer intrusted with the collection and disbursement of revenue in any of the departments of the government, has no right to withhold a'performance of his ministerial duties prescribed by law, merely because he apprehends that . . . the law may be unconstitutional. [Syllabus]. It does not lie with the respondent, as a ministerial officer, to make [the objection that the law is unconstitutional], He is not authorized or required to adjudicate the law.”

The quotations before made from the adjudications by courts from various States show the general tenor of the cases throughout this country; and, in brief, the consensus of opinion is, that the constitutionality of a statute imposing ministerial duties upon a ministerial officer cannot be raised by him in a mandamus proceeding instituted for the purpose of compelling him to perform those duties.

The reason assigned is, that since such an officer has no personal interest involved, to tolerate his objections to the validity of the law would lead to delays and endless confusion in the administration of the law. Such officers are not appointed or elected to pass upon constitutional questions; and, in most cases, it is common knowledge that such officers are not learned in the law, and, consequently, are not qualified to intelligently pass upon constitutional questions. Such questions challenge the ability, learning and judgment of our greatest lawyers and most eminent jurists.

While we have no hesitancy in holding that, ordinarily, in the first instance, ministerial officers- cannot raise the constitutionality of a statute imposing ministerial duties upon them, however it does not follow therefrom that such officers may not do so upon the advice of the law officers of the State who have been elected for the purpose of advising such ministerial officers. In this State we have the Attorney-General and the prosecuting attorneys of the various counties, whose duty it is to give legal advice to other officers of the State and counties when called upon for advice regarding the administration of the affairs of their respective offices. [Secs. 4941, 4950 and 4951, R. S. 1899.] In the case at bar, it appears from the record that the Attorney-General of the State was called upon and gave a written opinion to the county court of Nodaway county, which was the fiscal agent thereof, to the effect that the act in question was unconstitutional, null and void, and that said court informed relator of said opinion, and notified him not to pay the warrant mentioned in the pleading's; and that if he did so, he would he held liable upon his bond for the amount so paid thereon. In the light of those disclosures, the respondent not only had the legal right to raise the constitutionality of the act, but under those facts it became his legal duty to do so, otherwise he would have paid the warrant at his peril.

We therefore hold that in the case at bar the respondent had the right to raise the constitutionality of the Act of 1907.

II. This brings us to the consideration of the second proposition previously mentioned, namely, is the said Act of 1907 constitutional? If so, then the judgment of the circuit court should be reversed; if not, then it should be affirmed.

All enactments of the Legislature are presumed to be constitutional until the contrary is made clearly to appear. For this reason the burden rests upon the respondent to point out and make clear to this court that said act is violative of the Constitution.

Counsel for respondent challenge the constitutionality of the act for several reasons, and-they will receive consideration in the order presented by counsel for respondent in their brief:

First. It is insisted that said act is- violative of section 53 of article 4 of the Constitution of 1875 in this, that it is local and special and can never apply to any other counties, though they may subsequently attain a population of more than thirty-two thousand and less than fifty thousand, or may have had that population at the time when the law was passed. The act in question reads as follows:

“Section 3237a. That in all counties whose population, as ascertained by the United States census of 1900, is 32,000 inhabitants or over, and less than 50',-000 inhabitants, all prosecuting* attorneys shall receive, a salary of twenty-five hundred dollars per annum, and no other remuneration whatsoever, for services as prosecuting* attorney: Provided, that in each of the counties affected by this act, the county court may, when, in its discretion, it is necessary to select an assistant prosecuting attorney, to receive such compensation as the county court may decide, in no case to exceed the sum. of one thousand dollars in any one year, and who shall hold his office as such assistant prosecuting attorney during the will of the county court. The salary of the prosecuting attorney and the assistant prosecuting attorney shall be paid in monthly installments by warrants on the county treasurer drawn by the circuit clerk”

By a perusal of this act it will be seen that it applied only to those counties which had a population of thirty-two thousand or over and less than fifty thousand, as was shown by the United States census of 1900. It further appears therefrom that no provision was made for its application to. counties which may have had the required population at the date of the passage of the act, or which might hereafter acquire such population. '

This identical question came before this court in the case of State ex rel. v. Turner, 210 Mo. l. c. 83, where we were called upon to construe a similar act, enacted May 10, 1907. There we said:

“Relator insists that this act is violative of section 53 of article 4 of the Constitution of 1875, which prohibits the Legislature from enacting any statute which is special or local in its operation.

“The agreed statement of facts shows that the State University is located in Columbia, and that it was the only State educational institution which had enrolled fifteen hundred or more students at the time said act went into effect. According to this agreement the act could only apply to a section of country ten miles in diameter around the university, because there is no other State educational institution which had at the time fifteen hundred or more enrolled students; nor could the act ever apply in the future to other localities of the State, even though some one or more of the State educational institutions should have an enrollment of fifteen hundred students, for the reason that the act in express terms limits its operation to such localities as then had State institutions of learning, with an enrollment of fifteen hundred or'more students. In other words, this act only applies to Columbia, and can never apply to other portions of the State although the same conditions may subsequently exist there. This being true, the act is clearly local and special in its operation; as much so as if it had named Columbia in express terms and then provided, that no license should thereafter be granted to. any person to keep a dramshop within five miles thereof.

“Similar statutes have many times been before this court for consideration, and we have uniformly held them to be unconstitutional and void, as will be seen by an examination of the following adjudications: State ex rel. v. Herrmann, 75 Mo. l. c. 353; State ex rel. v. County Court, 89 Mo. 237; Murnane v. St. Louis, 123 Mo. 479; Henderson v. Koenig, 168 Mo. l. c. 375 ; State ex rel. v. Messerly, 198 Mo. 351.”

Nothing remains to be said upon that subject, and we must, therefore, hold that said act is violative of said section 53 of the Constitution in the particulars stated.

Second. It is next contended that said act is also violative of said section 53 of the Constitution, in that it is local, for the reason that a general law could have been enacted instead thereof. Said section of the Constitution prohibits the passage of any local or special law where a general law conld have been enacted. This contention is also well grounded, for the reason that it can never apply to any county except those which had 32,000 inhabitants or over and less than 50,000, as shown by the census of the United States of 1900, and whereas a general law could have been enacted which would have applied to all counties which might at the date of the enactment or which might thereafter acquire the requisite number of inhabitants. [See case before cited; also the following: State v. Hill, 147 Mc l. c. 67; State v. Granneman, 132 Mo. 326; State v. Anslinger, 171 Mo. l. c. 611; State v. Thomas, 138 Mo. 95.]

Third. The third ground for assailing the validity of this act is, that it violates section 28 of article 4 of the Constitution. This section of the Constitution provides that “no bill . . . shall contain more than one subject, which shall be clearly expressed in its title. ’ ’

The act in question not only amends a statute which prescribed what fees should be ' paid to the various prosecuting -attorneys throughout the State, and fixes the fees of those in the counties to which the act applies, but also creates the office' of assistant prosecuting attorney in those same counties, provides for the manner of their appointment and fixes the amount of their salaries.

"While the question of creating an office and prescribing the manner of appointing the officer thereto is different from the question of prescribing the fees to be paid such officer; however, the one is germane to the other and so closely connected therewith that we are unable to say that they constitute two separate and distinct subjects within the meaning of said constitutional provision. [Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller, 45 Mo. 495; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Heege, 135 Mo. 112; Elting v. Hickman, 172 Mo. 237; State ex rel. v. Vandiver, 222 Mo. 206.]

In the last case it was held, that the thing prohibited by statute and the penalty imposed thereby for its violation were' not such separate and independent matters as to constitute them two subjects within the meaning of said constitutional provision; but upon the contrary, that the penalty was germane to the thing prohibited by statute, and for that reason both might be properly included in the same bill, and do no violence to said constitutional provision. In the case at bar, while the salary of the prosecuting attorney may not be so much dreaded as the penalty before mentioned, nevertheless it is as closely connected with and as much germane to the office of the prosecution as said penalty was to the said crime. [See also State v. Coffee & Tea Co., 171 Mo. 634; State ex rel. v. County Court, 102 Mo. 531; State ex inf. v. Borden, 164 Mo. l. c. 236; Shively v. Lankford, 174 Mo. l. c. 544, 545; State v. Fulks, 207 Mo. 26.]

We are of the opinion that this contention of counsel for respondent is not well taken.

Fourth. The last insistence of counsel for respondent is, that said act of the Legislature is violative of section 12 of article 9' of the Constitution, in that its operation is not uniform; and cite in support thereof the following cases: State v. Hill, supra; Henderson v. Koenig, supra; State v. Granneman, supra.

Said section of the Constitution reads as follows: “The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population. ’’

In our opinion that insistence is untenable; and the authorities cited in support thereof are not in point. The act in question operates uniformly upon all salaries of all prosecuting attorneys who are embraced within its provisions. While the act is local and special in its operation, yet, as before stated, its operation is uniform upon all matters and things embraced within its provisions.

Counsel for both relator and respondent have presented and discussed many propositions in their briefs, and have cited numerous authorities in support thereof; but, since entertaining the views of this case as heretofore expressed, their consideration becomes unnecessary.

For the reasons before stated, the judgment of the circuit court denying the peremptory 'writ of mandamus is affirmed.

All concur.


author: LAMM, J.

text:
    THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. THOMAS F. RYAN, CHESLEY A. MOSMAN and LUCIEN J. EASTIN.
    In Banc,
    December 31, 1910.
    1. JURY: Inapplicable Statute. If a statute under which juries for the courts of Buchanan county are selected is no longer available, because of a decrease in requisite population, there yet remains the constitutional provision that “the right to trial by jury, as heretofore enjoyed, shall remain inviolate,” under which common law right jurors may he summoned as talesmen as occasion may require, or article 3 of chapter 64, Revised Statutes 1909, applies to that county, and if one or both do not meet the full ends of justice the General Assembly can supply the deficiencies. The county is not left without any jury law whatever simply because the Act of 1905 as amended in 1907, creating a hoard of jury commissioners for that county, is no longer applicable to that county.
    2. STATUTE: Classification by Population: Decrease. Where counties are classified according to population, courts or legislatures do not assume that the number of their inhabitants will never decrease. Simply because a certain county had the requisite population at the time a statute was enacted, and therefore came within a statutory class, it will not he held that it continued, to remain in that class after its population decreased .below the statutory standard. Even if this were the rule for cities in that regard (namely, that a city once admitted to a class because of requisite population will not be taken from that class because of a decrease of its population below the minimum standard), it would not be applicable to counties, since they pass automatically from one class to another, while cities do not, but only by virtue of a vote of the people.
    3. SPECIAL LAW: Courts: Juries. Cases holding valid, against the objection that they were local or special, acts creating some new court, or a new division of an existing court, or regulating changes of venue from one division of the court to another, or providing that terms of a circuit court should be held at some town other than the county seat, were properly decided, because the Constitution áuthorizes legislation of the character of those acts; but it has no such provision concerning juries; on the contrary it says that “the General Assembly shall not pass any local or special law summoning or impaneling grand or petit juries.”
    4. -: Counties: Classification by Population: Decrease Below Standard. Where population is the sole basis of classification, it would be class legislation to permit a county which had the requisite population at the time the statute was enacted to remain in that class after its population had decreased below the minimum population, while keeping out other counties which have equal population but less than the minimum fixed by the statute. Where the statute divides counties into classes by population, and fixes the method of selecting juries in each class, a county whose population decreases below the minimum fixed by the statute, passes automatically to the next lower class.
    5. -: -: -: Jury Commissioners of Buchanan County: Ouster. The statute enacted in 1905-7 provided that “in each county of this State now containing or which may contain hereafter a city having, according to the last preceding national' census, more than 100,000 inhabitants and less than 400,000,” petit jurors should be selected by a board of jury commissioners composed of the judges of the circuit court and the criminal court,, and gave to those judges $1500 per annum for their services as such jury commissioners. The last national census taken prior to the enactment of the statute gave St. Joseph a population in excess of 100,000, but the same census for 1910 reduced that population to about 77,000. Reid, that Buchanan county automatically passed out of the class upon the ascertainment by the last national census that the population of St. Joseph was less than 100,000 and that the jury commissioners as such must be ousted.

      Quo "Warranto.
    Writ of ouster given.

      Elliott W. Major, Attorney-General, Thos. B. Allen, Chas. H. Mayer and Culver, Phillip & Spencer for relator.

      C. C. Crow, K. B. Randolph, J. W. Boyd and Broion & Dolman for respondents.
   LAMM, J.

Respondents are severally judges of the criminal court of Buchanan county and of subdivisions one and two of the Buchanan Circuit Court.

The Attorney-General exhibits here an information, ex officio, in the nature of quo ivarranto, to try the title of respondents to the office of, and to oust them as, a Board of Jury Commissioners of Buchanan county.

The information pleads by title and sections two acts of the General Assembly — one found in the Laws of 1905, p. 174, entitled, “Jurors: Board of Commissioners in Counties containing City of 150,000 and less than 400,000 Inhabitants” — the other, in the Laws of 1907, p. 322, amendatory of the first.

The information shows that as amended in 1907’, section 1 of the first act now reads: “In each county of this State now containing or which may contain hereafter a city' having, according to the last preceding national census, more than one hundred thousand inhabitants and less than four hundred thousand inhabitants, petit jurors for the circuit court and for the court having jurisdiction of felony cases shall be selected as hereinafter provided.”

Section 2 of the original act, not amended, in part reads: “The circuit judges of said counties, and the judge of the court having jurisdiction in felony cases, shall be and constitute a board of jury commissioners for such counties, a majority of whom shall constitute a quorum for the transaction of business. .’ . . Each member of said board shall, as compensation for his services under this act, as jury commissioner solely, receive a salary of fifteen hundred dollars per annum. Said salaries shall be paid by the county monthly in equal monthly installments. The time, place and manner of meetings of said board and the rules for performing its duties shall be fixed by said board.

As amended in 1907, section 3 of the original act now reads: “In every county in this State to which this act may apply, the board of jury commissioners of said county, at its first regular meeting, after it is ascertained from the last preceding national- census that said county contains a city of more than one hundred thousand inhabitants, and less than four hundred thousand inhabitants, shall cause to be made, under its supervision, a complete list, as near as they can, alphabetically arranged, of all the qualified jurors in the county and their residences; and in compiling said list said board of jury commissioners, and their clerks and assistants, may have access to the books of the county assessor and to any registration of voters required by law to be made.”

The amendatory act had an emergency clause based on the “necessity of the immediate revision of the jury laws in counties affected by its provisions,” and was approved February 26,1907. The original act had the same emergency clause and' was approved February 21, 1905'. The other provisions of the original act, not amended, consist of 14 sections, working out the details of the plan — all immaterial here. The original act ran in favor of every county of the State “now containing or which may contain hereafter” a city having, according to the last preceding national census, more than 150,00 and less than 400',000 inhabitants. At the outset the act took effect in only one county — that of Jackson — Kansas City being the only town then fitting the- statutory requirement in population. The amendatory act of 1907, by reducing the requirement in population to 100,000, including Buchanan county — the city of St. Joseph, contained therein, according to the then last national census having the required number.

Further outlining the information, its theory is that according to the national census of 1910', as officially promulgated, the city of St. Joseph does not contain 100,000 inhabitants, nor does the county of Buchanan have so many; that by virtue of the Act of 1905 as amended in 1907, respondents at once assumed the office of jury commissioners in Buchanan county, constituting its board of jury commissioners, put on foot its jury scheme and took to themselves its duties, honors and solatium; that by virtue of the official promulgation of the national census of 1910, establishing the fact that the population of St. Joseph was less than 100,000, the law ceased to be operative in Buchanan county; and that such board of jury commissioners became functus officio and no longer had any right to legal existence. It is charged that despite that fact respondents continued to perform and are performing such duties and usurping the office of jury commissioners “in contempt and to great prejudice and damage of the authority of the State of Missouri.” Process was prayed against them that they be cited to make answer to the State and show by what authority they claimed to use and enjoy the rights, liberties, privileges and franchise aforesaid.

The suit is a friendly one to set at rest a vexed question relating to selecting jurors for service in the courts of Buchanan county.

Respondents enter their voluntary appearance, submitting the cause on demurrer — the grounds of which are:

“First. The petition in quo warranto filed by the Attorney-General does, not state facts sufficient to constitute a cause of action against respondents.

“Second. The petition on its face shows that respondents are lawfully performing the duty of jury commissioners in Buchanan county, Missouri.”

We are furnished with forceful, briefs of excellent pith and temper on both sides. A .resume of points there made will aptly and concisely outline the general contentions pro and con, viz.:

For respondents (inter alia) it is argued.it was the intention of the Legislature in the Act of 1905 as amended in 1907 that it should afford a permanent jury system for Buchanan county without reference to any possible decline in its population; that in framing the various jury law's of this State no attempt has been made to create a general system founded upon popula,tion either urban or general; that in framing the law under consideration the Legislature was skillful and intelligent in the selection and use of words expressive of its purpose to make the law applicable to Buchanan county irrespective of any future decrease in the population of St. Joseph; that the act is not a local or special law; and that if that act is not operative in Buchanan county, then it has no jury law — this by virtue of the fact that prior laws operative in that county have either been repealed or are no longer applicable.

Por relator (inter alia) it is argued that for the purpose of prescribing. the manner of selecting petit jurors the Legislature has classified the counties of this State, and cities which are separate from counties, according to population; and that, since the population of St. Joseph as shown by the last national census is less than 100,000', Buchanan county, as to the manner of selecting petit jurors for the circuit and criminal courts, is not now subject to the provisions of the Act of 1905 as amended in 1907.

There is a reply brief controverting the propositions and arguments in respondents’.

In our opinion, a judgment of ouster will have to go. This, because:

(a).. To show they are not overlooked, we shall consider some phases of the argument of respondents’ counsel in limine. For example:

(1). By way of argument ab inconvenienti they say unless we accept their construction of the statutes, then Buchanan county is left facing chaos without any jury law whatever. We shall not elaborate the theory. In a nutshell it is that the present jury statutes are compiled in chapter 64, Eevised Statutes 1909, under five articles. Article 2 relates to “juries in counties having 100,000 and not more than 175,000- inhabitants” —manifestly Buchanan does not fall in this class. Article 3 relates to “juries in counties containing cities of 50,000 and less than 300,000 inhabitants” — manifestly Buchanan county would fall in this class on the face of things, except some insurmountable obstacle intervenes —which obstacle they say does intervene. Article 4 relates to “juries in counties containing cities- of 100,-000 and less than 400,00-0 inhabitants” — obviously Buchanan does not fall in that class. — unless the doctrine of once in,- always in, applies (article 4 is the aforesaid Act of 190-5 as amended in 1907). Article 5 relates to “juries in cities with over 100',000 inhabitants” — B-uchanan does not belong there. Article 1 relates to juries generally, in all counties., “except in cities having over 300,00-0 inhabitants, and in counties containing cities of 50,000- inhabitants and less than 300,000.” It is obvious at a glance that'article 1, article 5 and article 4 seem to overlap on their outer edges at first blush and may need the pruning hand of a reviser, but that does not concern us in the determination of the instant.case.

The phase of relator’s argument now up travels on the theory that article 1 of the present chapter 64 was passed in 1879, article 3 in 1891, article 2 in 1903, article 4 in 1905-7; that article 2 was a new law and not an amendment of any existing act; that it .operated to repeal article 3 passed in 1891, as said, so far as concerned counties which at that time contained or might thereafter contain not less than 100,000' and not more than 175,000 inhabitants, in which class Buchanan county belonged at the time — therefore, as the Act of 1903 (art. 2) repealed the Act of 1891 (art. 3), unless the Act of 1905-7 applies there is no jury law applicable to Buchanan. The contention, subtle and somewhat elusive to the grasp, it will not be necessary to fully develop because of a conclusion to be presently stated.

To this argument relator presents, the counter view that the “repeal” in the minds of respondents was not an express repeal, but results, if at all, only by implication, and is the product of over refinement; that the two acts are not irreconcilably in conflict and since repeal by implication is never favored and is not allowed except in case' of an irreconcilable conflict between a younger and, an elder act, it results that both may stand, ergo, Buchanan county has left an existing statutory jury scheme, viz., article 3, which it can fall back on. But we need not follow the ingenious evolution of the argument for and against, nor decide the "dainty questions presented in that behalf. This, because one of two things is bound to be true if Buchanan county ceases to come under article 4, and if either exist the argument ab inconvenienti must fall. Those two things are: Either Buchanan county has left the common law right to jurors summoned as talesmen as occasion may require in obedience to the constitutional provision (sec. 28, art. 2), viz., “The right of trial by jury, as heretofore enjoyed, shall remain inviolate,” or article 3 of chapter 64, supra, applies to that county. If the one or the other or both of these schemes do not meet the full ends of justice because of facts appropriately within legislative kno'wledge, and calling for the exercise of legislative power, then the General Assembly about to convene can amend either article 2, article 3 or article 4, so that a statutory scheme may he enacted, curing the sickness of the State by striking down mischiefs.

(2). To further their main argument, counsel say courts do not interpret nor legislatures pass laws on the assumption that the population of a town will decrease, citing Davis v. Clark, 106 Pa. St. l. c. 384 et seq. The Davis case held in judgment the constitutionality of a mechanics’ lien act — the question turning on a clause reading: “Provided that the provisions of this act shall not apply to counties having a population of over two hundred thousand inhabitants.” At that time two counties in that State, Philadelphia and Allegheny, had a greater population. The act was held bad, as obnoxious to a constitutional interdiction, viz., “The General Assembly shall not pass any local or special law, authorizing the creation, extension or impairing of liens.” In holding the act bad, that court said: “It was not, then, a general act, applicable to every part of the commonwealth. It did apply to a great number of counties; but there is no dividing line between a local, and a general statute. It must be either the one or the other. If it apply to the whole State it is general. If to a part only, it is local. As a legal principle it is as effectually local when it applies to sixty-five counties out of the sixty-seven, as if it applied to one county only. The exclusion of a single county from the operation of the act makes it local.” However, the case sustained a classification by population, putting'the classification on the theory of the assumption that counties having a small population, may ultimately have, one much larger. But the converse was not allowed as a correct assumption. “Here,” said the court, “the larger are excluded. We cannot assume that their population will ever be reduced to less than the number named. They are therefore practically and permanently excluded by the' intent and purpose of this act, which is special in its terms and local in its effect.”

We have no call to approve or disapprove the result there reached, but the assumption indulged in the Davis ease that laws are always interpreted as if passed on the theory a population will remain stationary o,r increase, and that there can be no assumption it will ever decrease, or that the lawmaker enacts laws under that assumption, must be taken cum grano salis.

If a classification by population is not arbitrary in the sense of being unreasonable, and if, therefore, it is not obnoxious as special and local legislation, we can see no inherent reason why the county or officer that goes in under a law through an increase in population may not (by the same token) go out under a decrease— the result hinging in each instance on a reasonable construction of the words and spirit of the law. Speaking of shifts in populations, the census tells the same story history has always told, viz., that populations wax and wane, stand or shift as different causes operate to produce different effects. The school boy reads that story in his Herodotus and in many a, page since. The old materialistic poet, Khayyam, mockingly toying with the moral phenomena of human life, had it in mind in the quartet of lines of his Rubaiyat:

“They say the Lion and the Lizard keep
The Courts where Jamshyd gloried and drank deep:
And Bahram, that great Hunter' — the wild Ass
Stamps o’er .his Head, but cannot break his sleep.”

It is not without the pale of sober speculation, for did not the noble Whig historian, reviewing Ranke’s History of the Popes, see in his mind’s eye “some traveler from New Zealand, in the midst of a solitude, take his stand on a broken arch of London Bridge to sketch the ruins of St. Paul’s?” Even in Missouri, we are pointed by relator’s counsel to “the departed glories of our own "Weston, once the Mecca and metropolis of Northwest Missouri.” And does the student of our annals need to he reminded of (Old) Franklin on “Cooper’s Bottom,”, its early pre-eminence in the Boone’s Lick Country, its bounding hopes, its trade stretching away to Santa Fe, its lottery, pouring venal wealth into its lap, its gay life, its near-by Hardeman’s Garden — a dréam of flowers, fruits and labyrinths of pleasant walks — one and all faded like the fog before a morning sun, and now nothing but a dim reminiscence, amusing the idle moments of a prying scholar like Walter Williams ? And what of SpRrta in Buchanan county —once a rival of the town of Joseph Robidoux? Sic transit gloria mundi!

We are not prepared to rule that lawmakers, presumably wise men, in using population as a standard of classification, do not look before and behind and may not assume that populations may not both wane and wax. Hence, we decline to follow the lead of that phase of respondents’ argument. Once in, always in, is a dogma we do not subscribe to as an invariable rule in legal hermeneutics in cases like the one at bar.

(3). We are told we have held valid, as against the objection that such acts were local and special, acts-creating some new court, or a new division of an existing court, or regulating taking changes of venue from one division to another, or providing that the term of a certain court should be held at some town other than the county seat, etc. We are cited to a line of such cases.

Respondents argue that cases which sustain that sort of legislation support their construction of the Act of 1905-7, under which the existing jury scheme in Buchanan county is operated. The office of this phase of their argument is to parry the thrust in relator’s brief that, if respondents’ construction of the Act of 1905-7 be adopted, then, by that ruling, the law becomes a local and special act and invalid as such. Hence (relator says), that construction is vicious, fo,r that where two constructions are open — one validating the law, the other destroying it — we are hound to take the first instead of the last, so as to make the law stand rather than fall. Interpretatio fienda est wt res magis valeat quam per eat. To further their argument respondents advance the notion that the General Assembly might have passed a valid jury law dealing by name with Jackson or Buchanan county, one or both, with provisions impliedly excluding all other counties and having no regard, to population; that the population idea may be treated as surplusage; that, in reason,- as applied to juries, it stands on a lame foot or none at all; that the population idea was merely inserted in the law because the lawmakers saw some “imaginary” constitutional difficulty to get around; that the several articles of chapter-64, pertaining to juries, were passed to meet a well-defined and well-understood local necessity; that such necessity exists in St. Joseph, whether its' population he a hundred thousand or less. Indeed, counsel in their ardor claim to see in the peculiar verbiage of the act in question a substantial legislative intent, thinly veiled, to keep- all counties, who get in under the law, in, while making it as difficult as possible for other counties to get in — in other words, a spirit of exclusiveness.

We will copy a little from respondents’ brief to illustrate the delicate scope and character of this side of their argument.

At one place they say: “If there is. any one thing more striking than another in connection with the growth of these jury laws it is that in their enactment there has been no attempt to create a uniform system based upon population. All the numerous amendments which constitute the present body of the law on that subject were passed to meet the needs and at the demand of some particular community, and in each case a new rule has been introduced, founded upon the actual population of the county or city to be affected, and guarding it as effectively as possible against the intrusion of new members, by growth or otherwise, upon the exclusiveness of the newly created family. In each case, to meet some fancied constitutional necessity, . . . a provision has been inserted applicable to future conditions assumed to be possible, thus malting the Constitution an instrument of evasions and subterfuges by which lingual tricks are substituted for the direct and simple statement which should characterize the laws.”

In another, this: “Conditions certainly prove that the national census alone is not a reasonable test for such needs, and a short review of the several jury laws of the State will not only show that the Legislature never intended to adopt a system founded on it, but that every act making it an element was framed to meet a public necessity founded upon peculiar local conditions, that as fast as a necessity arose in any city an act was framed to meet it, regardless of the condition in any other locality, population being mentioned merely to avoid an imaginary constitutional objection, as if the constitution were made to promote subterfuges rather than to control action.”

In another, referring to the act, they say: “It curtained the front door as with a cobweb to catch any county flying in thereat. ’ ’

As presently seen, in another paragraph of this opinion, classification by population (under different forms of verbiage) is a favorite method of classification in our statutes. In passing such laws an attempt has been made to ground them solidily on the Constitution, strictly observing the interdiction against mere special or local legislation.

'We dismiss this phase of- respondents’ argument by suggesting that we cannot very well allow it sound in the face of a Constitution which provides, as does ours, that (art. 4, sec. 53): “The General Assembly shall not pass any local or special law . . . summoning or impaneling grand or petit juries, . . . and whether a general law conld have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regal'd to any legislative assertion on that subject.”

Referring to the point made in the first part of this paragraph, to the effect that those cases holding that an act referring to some particular court, or to some term of that court, or to the place some term of that court should be held, etc., and seeking to apply, the doctrine of those cases to this, we observe: It is obvious that the principle upon which those cases are grounded does not apply in the instant case. The reason given for the doctrine of that line of cases is that the Constitution authorizes that character of legislation. [State ex rel. v. Fort, 210 Mo. l. c. 532, et seq.'] It has been said that the judicial system of the State is a whole; “a. composite unit;” that statutes dealing with courts as such have been usually held general though not applicable to every courf of like nature in the State. [State ex rel. v. Shields, 4 Mo. App. 259.] The idea of unity in the judicial system is instructively dealt with by our Brother Valliant in Zellars v. Surety Co., 210 Mo. l. c. and 106 (q. v.).

(4). Respondents seek to borrow aid from a conceded doctrine, viz,, that under the statutory plan for classification of cities it is not pretended that a city organized under one class, although a certain popular tion is a sine qua non to such organization, retrogrades to a lower class when its population falls off. They say, in effect, that when the door opens to let a city into a class, it swings inward, not outward — in other words: Once in, always in, despite the adventitious fact that its population ebbs or swells. As to this view of it, we observe: The fundamental fallacy in applying that idea lies in the fact that while parity of reasoning is allowable reasoning yet (to be worth while) it must be reasoning from. similars to similars, and here all similarity in the two eases vanishes. A city does not pass from one class to another automatically as counties do under the jury chapter. It passes by virtue of a vote of its people — its people shed their old charter, soul and shell, and assume new ones — the vote of the people in adopting the change being strictly in the nature of an act of incorporation — an entity is born, a municipal corporation, an artificial person, that may not lose its life and charter franchises otherwise than by another act of sovereignty, viz., another vote of the people reincorporating the city in another class. [See art. 1, chap. 91, and secs. 5263, 5489, 5751, 5894, 6004, R. S. 1899.] We cannot see how respondents’ case prospers on the theory advanced.

With the foregoing disposition of subsidiary and collateral questions, we come to the main proposition in the case.

(b). That proposition is this: Attending to what has already been said in paragraph (a), does the Act of 1905-7 (now, art. 4 of ch. 64, R. S. 1909) now apply to Buchanan county? If it does, the writ of ouster should not go — if not, otherwise.

(1). A consideration of the question must-proceed on the theory that the city of St. Joseph has lost the requisite population to make the act apply on its face, or, more precisely stated, the county of Buchanan if not under the act could not come in at this time. It got in under the Federal census of 1900, and the question is: Can it stay in although the Federal census of 1910 cuts the population of St. Joseph to 77,000 and makes the entire county have less than 100,000 souls?

That we may take judicial cognizance of the size of the population of a city or county, when once established by the national census, cannot be gainsaid. rBut we do not here need the doctrine of judicial notice; for in this ease the information alleges the official promulgation of the census figures at less than 100,000. The demurrer admits facts (not absurd or impossible) wlien well pleaded. It remains to determine the legal significance of such facts so admitted.

(2) . In expounding a statute one rule is that effect should be given to all its words, when possible, without violating reason; another is to consider the context, and those sections in pari materia as well as cognate sections, and get at the true intendment of the act, having regard to the maxim: The explanation should arise from the whole subject-matter (Ex tota materia emergat resolutio).

(3) . In what we have to say we shall assume it settled doctrine that statutory classifications by population are not unphilosophical or unconstitutional but are sustained in reason. Counsel on both sides cite abundant authority to- that proposition. The theory of classification by population in jury statutes was under consideration in Dunne v. Railroad, 131 Mo. 1. In that case the single point was made that the Act of 18-91, Laws 1891, p. 172 (now, art. 3, _ chap. 64, R. S. 1909') was unconstitutional. It was held constitutional because the Federal census, furnishing evidence upon which the law operated, thereby furnished a basis of certainty in time and accuracy in manner, otherwise difficult to secure when the' census is committed to local authorities of counties dominated by large cities.; that the selection of juries under the general law in counties containing large cities is liable to much abuse, complaints were common and to remedy evils existing in condensed populations — not in one, but in all cities of a certain size — the classification was deemed necessary; that the act was not special legislation or local in its application — this because (and only because) it related to persons and things as, and not to persons and things of, a class — all counties being entitled to its provisions containing a city of the named population. The Dunne case did not consider the precise question presented here, viz., whether a county once in, stayed in,- but that phase of it relating to other counties getting in. But is it not quite too plain for argument that if a county gets in because of having a city of the requisite size, it should go out and fall into some other class when it can no longer pass muster and toe the mark in population? Otherwise, a construction keeping a county in which could not get in (as its population stands at the time) would result in class legislation of the most patent and pernicious character. To illustrate: If St. Joseph, the only large city making the law operate in Buchanan, has 77,000-inhabitants and that county can stay in the 100,000 class, then (as put by relator) although Springfield in Greene, Joplin in Jasper, or Sedalia in Pettis might have the same population yet the counties of Greene, Jasper and Pettis would be effectually barred from the benefits of the statute. Thereby, we would have one law for one county and another law for another county of the same population, though population is the sole pretended basis of classification. Such construction with one stroke mutilates, the symmetry and general scope of the law, makes it local in terms and application — in other words, the whole act perishes by. construction. Therefore, if there is any other reasonable construction we should take that in order the law may stand and not fall.

There is another construction entirely consistent with the reason of the thing, which (unless we are constrained by the strict letter of the law) we should give; which is; that the statute opens automatically to let in (and out) of the same door those counties to which the law applies — -the door swinging on a double hinge — in and out. That is, a county gets in, or stays in o.r goes up to a higher or down to a lower class all by virtue of the law. This view treats the situation, needing correction, as a continuous one. Such a construction, if allowable, is due to the law-making branch of the government, because it would be odious to assume that lawmakers (absent unmistakable evidence of the fact) intended to fly in the face of the unaccommodating sternness of the constitutional interdiction against special legislation.

(4). We shall presently see whether the words of the law forbid such construction. F'or the present let us look to cognate laws and to the legislative policy evidenced by many statutes which we think fortifies, the construction suggested. There is a statute (R. S. 1909’, sec. 978) relating to giving to the circuit attorney in a circuit embracing a city of 300,000 or more inhabitants power to appoint five assistant circuit attorneys. Does such circuit attorney retain that power when his circuit ceases to. contain a city of that size? Such circuit attorney has power to appoint clerks and stenographers (sec. 978). Now section 982 names a salary of $3000 for assistant circuit attorneys and $1200 for clerks and stenographers. Do such appointments and salaries continue when the circuit contains no such city? Section 1036, on a given population and taxable wealth, provides that in a county adjoining a city of á population of 300,000 the prosecuting attorney shall employ a clerk at the salary of $1000'. Does such employment continue when such county no longer adjoins a city of that size? Section 1044 authorizes county courts in counties containing 100,000' inhabitants or inore, according to the last census of the United States, and such as may hereafter contain that number, to appoint a county counselor at a salary of not more than $3000 nor less than $1500 (see sec. 1047). Does that authority exist and is that salary payable after the county dwindles below the population limit? Section 1005 grades the salaries of prosecuting’ attorneys on a sliding scale by modest leaps and bounds. The' county of 5000' people pays $300'; that of 10',000 pays $400; that from 10,000 to 15,000' pays $500; that of 15,000' and less than 20,000 pays $600; that of 20',000 and less than 25,000" pays $700;,that of 25,000 and less than 30,000, $800; from 30',000 to 35,000 the salary is $900; and for 35,000 and over, $1000'. Do those salaries continue when a county, by decrease, falls back from the class it may once be in to a lower class? Section 1006 is an attempt to classify counties according to the United States census of 1900, and undertakes to provide that prosecuting attorneys in counties of from 32,000 to 50,-000 inhabitants shall receive salaries of $2500 each and no other remuneration whatever. Because that statute, ex vi termini, cannot open to let other counties in or those that are in, out, on any possible hypothesis, it has been held unconstitutional by a decision just handed' down (State ex rel. v. "Williams, 232 Mo. 56). By section 4072 it is provided that in cities having or hereafter having a named population a probate clerk shall be elected. Does that statute mean that such clerk shall be elected and receive his solatium no difference, how much the city dwindles, below the population mark? By section 10,683 it is provided that in counties exceeding 50,000 inhabitants and having a criminal court, the judge thereof shall receive an annual salary of $3000. Does that statute mean that if the county hereafter falls below 50,000 souls, the judge of its criminal court shall continue to receive $3000'? By section 10,687 it is ordained that in a county of a certain population and of certain taxable wealth adjoining a city of a given population, the circuit judge shall receive the sum of one hundred and twenty-five dollars per month in addition to the salary now provided by law and the prosecuting attorney of such county the sum of fifty dollars per month in addition to his regular salary. Are those salaries to be paid when such county ceases to meet the definitions and limitations of the statute? By section 10,698 the remuneration of circuit clerks is regulated on a sliding scale of population. When that scale is applied in accordance with the population, does it become fixed and continue though the population falls below the standard? The general law is that thé sheriff receives two dollars per day for -himself and for each of two deputies actually employed and in attendance upon court, but in cities and counties- having over 100,000 inhabitants such deputies receive three dollars per day. In counties having 50,000 and under 600,000 sheriffs receive three dollars per day for each and every day’s attendance during the term of each of the courts. Is the three dollars per diem to continue when the population falls below the statutory requirement? See in this-connection section 10,702.. By section 10,722 an elaborate scheme is enacted whereby clerks of courts are paid on a sliding scale, depending entirely on the population of the county. In counties of great population, a greater amount is paid, and a lesser when the population is less. When a county paying the largest amount ceases to have the statutory number of inhabitants, is the larger salary to continue? See in this connection section 10>,727. By section 10*,737 the idea of population in grading salaries is applied to counties' having a population greater than 150,000' and less than 500;000. Does that salary scheme remain though the population does not? Doubtless other statutes might be mentioned of a kindred sort and the same pertinent inquiry spontaneously arises on each of them. In each the apple, salary, grows on the tree, population — out down the tree, does not the apple fall? The population is the principal thing. Things following population are incidental or derivative. Cessante primitivo cessat derivativus.

Article 4, chapter 64, supra, we think comes within the legislative policy marked out in the body of the statutes considered. To eliminate the population requirement from that statute would affect the population idea in the rest, thereby doing -violence to the law by corroding its bowels.

.(5). The very words of the law remain to be considered. When the lawmaker plainly says what he means, to dotting his i’s and crossing his t’s, we have no call to say he means what we think he should mean. Therefore, if the words of the lawmaker keep Buchanan county in its present class, we should say so, although thereby the act becomes bad constitutionally. Respondents argue that the grammatical construction is such that Buchanan county, once in, must be held to stay in by force of the words used. Those words are: “In each county of this State now containing or which may contain hereafter a city having,” etc. We are not clear we grasp the nice shades of thought in the contention. Stated broadly the idea seems to be that there are two adverbs of time used — one, “now;” the other, “hereafter;” that the now refers to counties having a city of the right size at the time the law took effect; the hereafter, the counties getting a city of that size in the future. But may both “now” and “hereafter” not refer to the same county? May not the statute mean that any county gets in on a present showing of the right condition and stays in or goes out if that condition continues hereafter, and that any other county gets in, stays in or goes out the same way? There is nothing in the grammatical construction or context demanding we take a narrower or other view, and we prefer such view because it not only makes the statute constitutional but it comports with what we conceive to be the intendment of the statute.

On the theory that the situation is. crying and that he gives twice who gives quickly, we have been pressed to an early decision of this case, brought since oral hearings were adjourned at the October call of our October term. Doubtless something of substance is lost by the fact that counsel were not permitted to argue ore tenus.

The English editors of the last English edition of Benjamin on Sales, the fifth, took time to consider and held the text in solution, if that term be permitted, such a time as provoked complaint. They offered a brace of lines from Chancer as their defense, running in old Anglo-Saxon thus:

“There nis no workman whatsoever he be, That may both worke wel and. hastily.”

Mindful of the limitations suggested in that couplet, we have given the case the deliberation time allowed, resulting in the conclusion that the demurrer he overruled, and a writ of ouster should go. Accordingly, one is ordered. Let the State pay the cost.

All concur, except Burgess, G. J., not sitting.