State Ex Rel. Garvey v. Buckner , 308 Mo. 390 ( 1925 )

This is an original proceeding in prohibition. The relator is Roy B. Garvey, who is defendant in the criminal case of the State of Missouri v. Roy B. Garvey pending in Division No. 1 of the Circuit Court of Jackson County, Missouri. The respondent is judge of Division No. 1 of said circuit court. Relator stands charged with first degree murder alleged to have been committed on September 6, 1922. He seeks to prohibit respondent from entertaining jurisdiction and proceeding with the trial of said cause.

Relator was first proceeded against by indictment filed September 27, 1922. After numerous continuances, resettings and one change of venue, the case was dismissed on February 18, 1924. On May 28, 1924, the prosecuting attorney filed an information against relator, charging him with the same crime, upon which information defendant was arraigned, pleaded not guilty and the case was set for trial June 16, 1924, thereafter set for July 28, 1924, thereafter continued on defendant's application to September 8, 1924, thereafter reset for September 15, 1924, when relator filed application for change of venue from Judge Austin's division, which was Division No. 9 and designated as Criminal Division A, which change of venue was granted and the case transferred to Judge Buckner's division, which was Division No. 1 and designated as Criminal Division C. On September 16, 1924, relator filed application for a continuance, which was overruled, and the case set down for trial on the 22d day of September, 1924. On September 18, 1924, relator filed his petition here for writ of prohibition and assigned the following grounds:

1. That the Act of March 11, 1921, is unconstitutional and void, because,

(a) It contains more than one subject, in violation of Section 28 of Article IV of the Constitution of Missouri.

(b) It is a local or special law, in violation of Section 53 of Article IV of said Constitution.

(c) No notice of intention to apply for the passage of said bill was published, in violation of Section 54 of Article IV of said Constitution.

2. That the transfer of the case by Division No. 9 to Division No. 1 was in violation of court Rules 46 and 48 pertaining to criminal causes, and therefore void.

3. That the rule adopted by the circuit court on Jaunary 1, 1923, and the said rule thereafter adopted, are null and void and in direct conflict with said act of the Legislature.

4. That relator's application for continuance filed on September 16, 1924, was improperly overruled.

Preliminary writ was issued. Respondent's return denies the existence of the grounds specified and relator's right to the relief prayed, and sets up new matter mainly relating to additional court rules or orders. After issue joined by relator's reply, Hon. William C. Lucas was appointed by this court as special commissioner, who took and returned testimony on issues of fact.

Relator's claims will be considered in the order pleaded.

He first says that the Act of March 11, 1921, is unconstitutional and void, because it contains more than one subject, in violation of Section 28, Article IV of theTitle. Constitution, which provides that "no bill . . . shall contain more than one subject, which shall be clearly expressed in its title." It is uniformly held that this provision should be liberally construed; that the title need only indicate the general contents of the act; and if the contents of the act fairly relate to and have a natural connection with the subject expressed in the title they fall within the title. [State v. Mullinix,301 Mo. 385; Ex parte Harvey Karnstrom, 297 Mo. 384; State ex rel. v. Hackmann, 292 Mo. 27; State ex rel. McClintock v. Guinotte,275 Mo. 298; Coffey v. Carthage, 200 Mo. 616; 36 Cyc. 1017, 1028.]

The act in question consists of eleven sections found on pages 220 to 222 of the Laws of Missouri for the year 1921, and the title reads as follows:

"An Act in relation to the administration of justice in Jackson County; abolishing the criminal court of Jackson County and the office of judges and clerk thereof, abolishing the office of marshal of said county, and vesting the jurisdiction of said criminal court in the Circuit Court of Jackson County, and providing for the performance of the duties now performed by said clerk of the criminal court and said marshal of Jackson County."

This act relates to the "administration of justice in Jackson County." The act deals with this single, general subject. True, this subject is amplified, but it is singly and clearly expressed in the title. Every provision of the act fairly relates to and has a natural connection with the subject expressed in the title and therefore, falls within the title. There is no multiplicity. Moreover, the provisions enacted are all harmonious and compatible, and therefore not incongruous. Where the contents of the act are harmonious and have a natural connection with one subject singly and clearly expressed in the title, it is of no consequence that the General Assembly may not have fully legislated on the subject, that some provisions of the act are not specifically named in the title, or that by refinement of terminology the minutiae of the act itself can be separately catalogued. This point is ruled against relator.

Relator further says that the act is a local or special law, in violation of Section 53 of Article IV of the Constitution which provides that the General Assembly shall not pass anyLocal local or special law in some thirty-two specified cases.Law. This section has frequently been here for construction and the unvaried holding is that legislation authorized by the Constitution cannot be regarded as local or special, although its application is purely local. It is also held that whether an act be local or special must be determined by the generality with which it affects the people as a whole rather than the extent of the territory over which it operates, and if it affects equally all persons who come within its operation it cannot be local or special within the meaning of the Constitution. [State ex rel. Judah v. Fort, 210 Mo. 512; State v. Etchman, 189 Mo. 648; State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Hughes,104 Mo. 459.]

Section 22 of Article VI of the Constitution provides that the circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; Section 24 of said Article VI provides that judicial circuits may be changed, enlarged, diminished or abolished, from time to time, as public convenience may require; and Section 4 of the Schedule provides that all criminal courts organized and existing under the laws of this State, and not specially provided for in this Constitution, shall continue to exist until otherwise provided by law. These provisions undoubtedly constitute an express grant to the Legislature of power to pass the Act of March 11, 1921, and the act having been passed in pursuance of such express grant of authority in the organic law, it cannot be regarded as local or special. Furthermore, the law affects all persons alike who come within its operation, and hence it is not local or special. Every citizen of the State is interested in the operation of this law because he does not know in what hour he may need its protection.

Having held that the Act of March 11, 1921, is not local or special, it follows that relator's contention that the act is in violation of Section 54, Article IV, of theNotice. Constitution, which requires that notice of intention to apply for the passage of a local or special bill must be published, is also without merit.

Relator also says that the transfer of the case by Division No. 9 to Division No. 1 was in violation of court rules 46 and 48 pertaining to criminal cases and therefore void. In hisRules. return respondent pleads rules or orders subsequently made by the court in banc for the apportionment and dispatch of its business which he says should be considered and construed in connection with printed rules 46 and 48. In reply relator says that because these subsequent rules or orders had not all been spread on the clerk's permanent record when relator's petition was filed they should not be considered in this proceeding.

Relator errs, failing to observe the sound distinction that exists between rules framed to guide and govern litigants, and rules or orders made to aid the court in the apportionment and dispatch of its business. Formal promulgation should precede the effective date of the former, but such need does not exist nor does such legal requirement obtain as to the latter. [15 Corpus Juris, 911-13.] The latter class of court rules or orders made for the more convenient dispatch of the court's business is fully authorized by Sections 7 and 10 of the Act of March 11, 1921, and the answer to relator's objection is well expressed under similar conditions in State ex rel. v. District Court, 49 Mont. 158, 141 P. 151:

"The question has been removed from the realm of doubt or uncertainty by positive statutory enactment. The members of the Legislature must have appreciated fully that the matter of distributing the business of a court between the judges presiding therein is one of convenience; that so long as the business is efficiently and expeditiously transacted, no one is concerned as to the particular judge who sits in the trial of a given case; that, if a division of the business is actually made, and in point of volume of business the division is an equitable one, the purpose of the law is subserved, and the interest of the public fully satisfied. . . . Whether criminal cases shall be tried in one department or the other is a matter which cannot possibly interest anyone but the judges themselves."

The additional rules or orders made by the court in banc on October 5, 1923, on January 21, 1924, on September 6, 1924, and on September 13, 1924, of which relator complains are clearly of this kind and the well recognized principle of law that orders of court are not rendered invalid by the clerk's mere failure to transcribe his minutes on the permanent record until a subsequent date, is upheld by an unbroken line of authorities in this State. [Pelz v. Bollinger, 180 Mo. 252; Fontaine v. Hudson, 93 Mo. 62; Platte County v. Marshall, 10 Mo. 346.] The evidence taken and returned by the Commissioner discloses no effort to suppress or conceal any rule or order, nor does it appear that anyone was deceived or relator's rights prejudiced in any way through failure to print. These orders are properly before this court and are to be considered.

The court's order of September 13, 1924, supra, created Criminal Division C. The court's order of January 21, 1924, provided that "in event a change of venue is taken from any judge designated to try criminal causes, said causes shall be transferred to any other division designated by the court in banc for the trial of criminal causes." It was, therefore, entirely proper for Judge Austin on September 15, 1924, sitting in Division No. 9 (designated as Criminal Division A), to send the cause on change of venue to Division No. 1 (designated as Criminal Division C). Criminal Division C had been previously designated by the court in banc for the trial of criminal cases, and he had the right under the court's order to send the case of State v. Garvey to any division so designated. There is no merit in relator's contention that these rules or orders are null and void. However, without reference to these rules or orders of court, this transfer is upheld by statutory authority. [Secs. 2452, 2557, R.S. 1919, and Sec. 9 of Act of March 11, 1921, Laws 1921, p. 222.]

Relator's last ground pleaded was that his application for a continuance was improperly overruled. Relator ignoresChange of this assignment on brief, and properly so, becauseVenue. even if well founded it would be mere error not cognizable in this proceeding.

Another point raised in briefs, though not an issue under the pleadings, may be here dealt with. At page 163, Record No. 800 (Abs. pp. 90-91) of the Circuit Court of JacksonFiling of County, being record of Division No. 8, alsoInformation. designated as Criminal Division No. A of said circuit court, the following entry appears under date of May 28, 1924:

"Now on this date comes the prosecuting attorney and in open court files the following information, to-wit: No. C-2303, State of Missouri v. Roy B. Garvey — murder, first degree."

From this record entry relator argues that the information was never filed in the Circuit Court of Jackson County, which is the 16th judicial circuit, and respondent is therefore without jurisdiction of the cause.

Section 3849, Revised Statutes 1919, among other things, provides:

"Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdiction of the offense specified therein."

In legal contemplation the presentation and delivery of an information to the court or officer is the filing which dates from its receipt by the clerk and lodgment in his office, and whether the information is filed in term or in vacation the place of deposit is the same, that is, with the clerk. [State v. Coleman, 186 Mo. 151; Baker v. Henry, 63 Mo. 517; State v. Grate,68 Mo. 22; State v. Derkum, 27 Mo. App. 628.] Lodgment with the clerk of the proper court is the essential thing. The records upon which relator relies show that William H. Harper, Circuit Clerk, was present in court when the information was filed, and the information was thereafter produced in his custody. From all the evidence we must conclude that the information was lodged with him as Clerk of the Circuit Court of Jackson County on May 28, 1924, and filed in the Circuit Court of Jackson County within the meaning of the statute.

Nor is the circuit court's jurisdiction impaired by the fact that this filing or deposit with the circuit clerk occurred in Criminal Division C, and that the circuit court's record so shows. Under Section 2454, Revised Statutes 1919, the court sits in division not only for the trial of causes, but for thetransaction of all other business not specified in the preceding sections, and such business though transacted in division is none the less transacted by the circuit court. Whatever virtue rests in a court record of the fact that the prosecuting attorney filed the information during term time fully appears in the above record No. 800 at page 163. Fully cognizant of its power so to do the circuit court in banc by printed Rule No. 49 provided for the filing of criminal causes as follows:

"All criminal causes hereafter instituted in the Circuit Court, whether by information or indictment, and all criminal causes appealed thereto, shall be filed in the division of the Circuit Court that is then Criminal Division A. Said Criminal Division A shall then proceed to make up the issues in such causes and set the same for trial at the earliest possible date."

This rule rests on the same statutory authority as printed Rules 18, 22 and 25 prescribing the duties of the presiding judge, defining the assignment division, and relating to the filing and assignment of causes. If the circuit court in banc had power to provide where all pleadings in cases on the general docket should be filed (Rule 25), and that the presiding judge should have charge of the general docket, sit in a division designated for convenience only as the assignment division and there make up the issues and set down causes for trial (Rules 18 and 22), it also had the power to except criminal causes therefrom, as it expressly did in Rule 18, and by Rule 49 direct that such causes be filed in Criminal Division A, that the issues be there made up and the causes set down for trial. Authorities cited by relator are not in point.

For the above reasons the preliminary rule is discharged and peremptory writ denied. All concur, except Walker, J. absent, and Graves, C.J., who dissents.