State ex rel. Judah v. Fort ( 1908 )

SEPARATE CONCURRING OPINION.

WOODSON, J. —

While I fully concur in all that has been said in the majority opinion filed herein; yet I wish to add a few observations regarding one phase of the constitutionality of the act creating the second division of the criminal court of Jackson county, not touched upon in said opinion.

By section 1 of article 6 of the Constitution of 1875 •the judicial power of the State is vested in the Supreme Court, . . . circuit courts, criminal courts, •etc.

Section 31 -of said article prohibits the Legislature from establishing criminal courts, except in counties having a population of exceeding fifty thousand.

By section 28 of the same article the Legislature is authorized from time to time to provide one or more judges in circuit’s composed of a single county as the business of the circuit may require, and each judge thereof shall separately try cases and perform all other duties imposed upon circuit judges.

We will take judicial notice of the fact that Jackson county has a population in excess of fifty thousand.

It is clearly to be seen from reading the three sections of the Constitution, just mentioned, that the Legislature possessed the power to create an additional •division of the criminal court of Jackson county. This power, however, is not disputed by the learned counsel for respondent, but it is contended that the act creating the second division of that court is unconstitutional and void because it is special and local in its operation, in this:- that it confers jurisdiction upon only one of the several circuit judges of that county, namely, the one who presides over Division No. 7 thereof, to hear and determine criminal cases, and for that reason it is contended it is in violation of sections 32 and 53 of article 4 of the Constitution, which prohibits the Legislature from enacting any local or special law. The ground of this contention is predicated upon what was said by this court in the case of State v. Hill, 147 Mo. 63.

In that case the Legislature in 1897 passed an act providing that the judge of the criminal court of Buchanan county might be called in by the circuit judge of any other county to hold a 'term or part thereof in such other county, and vesting him in such case with all the powers of a circuit judge. This court in holding that act unconstitutional, on pages 67 and 68, speaking through Judge Sherwood, used the following language: “The Act of 1897 is also obnoxious to other objections: Its operation is not uniform. In Buchanan county the judge of the criminal court has only ‘such powers as the several judges of the circuit courts of this State have in criminal cases,’ but whenever he steps over the line of Buchanan county he immediately assumes the proportions and jurisdiction of a circuit judge in civil as well as in criminal cases; Touching this topic of the uniform operation of a law, Judge Cooley observes: ‘Those who make the laws “are to govern by promulgated, established laws, not to be-varied in particular cases, but to have one rule for the rich and poor, for the favorite at court and the countryman at plough.” This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments. [Const. Lim. (6 Ed.), 483, and cases cited.] ’ ‘The Legislature may suspend the operation of the general laws of the State; but when it does so the suspension must be general and cannot be made for individual cases or for particular localities. [Ib. 482, and cases cited.] ’ By the general laws of the State the judges of the criminal courts of the State could not be called out of their respective counties to sit on a circuit bench in other counties; by the law in question that general law is suspended only in a particular locality, to-wit, Buchanan county. "While in that county the judge of the criminal court is, as such.judge of such court, subject to the control of the circuit court of his county, but when he is dehors the county, he becomes a controller of the criminal court of any county into which he may be called to exercise his newly-found and newly-fledged functions. Nor is it possible to separate the civil powers of the judge thus called in from his criminal, since the Legislature evidently had but one object in. view —its purpose was evidently to confer both civil and criminal jurisdiction. This being, the case, the whole statute must fail. [Cooley’s Const. lim., 211.]”

But none of the objections urged against the validity of that act are tenable in the case at bar. The act in question here does not attempt to confer jurisdiction in criminal cases on a judge who had no such jurisdiction under the Constitution, for the reason that said sections one and twenty-eight of the Constitution, in express terms, confer such jurisdiction upon each and every circuit judge in the State, and no such judge is shorn of that jurisdiction by the existence or the establishment of a criminal court within any county composing a part or all of his circuit. [State v. McCarver, 194 Mo. 717; State v. Gordon, 196 Mo. 185.]

In the former case, on pages 736 and 737, Judge Burgess, in the discussion of this question, said: “The statute authorizing the calling of a judge of another circuit to preside at the trial of a certain criminal cause pending in another circuit, under the circumstances and conditions therein provided, malíes no exception against any judge who may not have jurisdiction of criminal cases in the circuit court in which he presides, because such jurisdiction is conferred upon a criminal court in that circuit; nor can any such exception be inferred from or read into the statute. Its terms apply to all circuit judges in this State, and the fact that Judge Davis did not have jurisdiction to hear and try criminal cases in the Fifteenth judicial circuit in no way disqualified him from hearing and trying such in another circuit, when requested to do so by the judge presiding therein under the conditions provided by the statute. Suppose that in one county only of the Fifteenth circuit there was a criminal court having exclusive jurisdiction of criminal cases, would it be contended from that fact that Judge Davis would be disqualified from hearing and trying a criminal case in any other circuit when properly requested so to do by the judge of that circuit? Or, suppose Judge Anthony, under the provisions of section 1678, Revised Statutes 1899', had requested Judge Davis to hold the term or part of the term of the St. Francois Circuit Court, and Judge Davis had presided at the trial of defendant, could it be claimed that he was without authority to try the case because he had no authority to hear and try criminal cases imhis own circuit? We think not. There is no difference in principle between the two propositions. Judge Samuel Davis has on several occasions, in response to requests made by the judge of the criminal court of Jackson county, presided at the trial of cases in that court. At one of such trials (State v. Taylor, 171 Mo. 465) the defendant was convicted of murder in the first degree, and upon appeal to this court the judgment was affirmed, with directions that the sentence of the law be executed. In addition to Taylor’s case may be mentioned State v. Hudspeth, 159 Mo. 178; State v. Blitz, 171 Mo. 530; State v. Nelson, 181 Mo. 340; State v. Nelson, 166 Mo. 191, and in none of them was it ever intimated or suggested, so far as the records therein disclose, that he had no jurisdiction; nor do we think there can be any question as to his jurisdiction to try the case at bar.” This case was cited and approved by this court in the case of State v. Gordon, supra, ih which all the judges concurred. In my judgment the establishment of a criminal court within a county constituting a part or all of a circuit does not deprive the judge of that circuit of jurisdiction to hear and determine criminal cases in that or any circuit or criminal court of the State, but. merely suspends or holds in abeyance that power or. jurisdiction until it is called into requisition by proper-authority. This is the logical deduction it seems tome to be drawn from the two cases last considered.. The Fifteenth circuit, over which Judge Davis presides,, is composed of Saline and Lafayette counties, and each of them has a criminal court, and for that reason he has no authority to try criminal cases in either county; but we apprehend that it could not.be seriously contended in the light of the cases of State v. Gordon and State v. McCarver, supra, that he would not have that power and authority if called in to try a criminal case by the judge of the criminal court of either of said counties. If a circuit judge has the jurisdiction to-hear and try criminal cases outside of his circuit, when called in by the judge of another circuit, or.the judge of a criminal court, then by parity of reasoning it must necessarily follow that he has the same authority when called in by the judge of the criminal court of a county composing a part or the whole of his circuit. And this has been the practice for years in all such courts of the State, and when the writer was on the circuit bench he was frequently called into the criminal court of Buchanan county and there tried numerous criminal cases, and it was never suggested, that I now recall,, that he had no jurisdiction to try such cases. But for the argument’s sake concede that I am mistaken in the conclusions just stated, yet it cannot be contended, in the light of those cases, and the statutes upon which they are based, that when a circuit judge is called in by the judge of another circuit or by the judge of a criminal court to try a criminal case, that, when so called,,lie is not clothed with necessary legal authority and jurisdiction to try the cause; and that is true whether he had jurisdiction to try criminal cases in his own circuit or not. The statute upon that question is itself perfectly clear; but the cases before mentioned construing the statute make it doubly so, and removes, the question from the pale of further judicial discussion. This being true, then when the Judge of Division No. 1 of the criminal court of Jackson county calls-upon the judge of Division No. 7 of the circuit court, of that county to try criminal cases, unquestionably he would be clothed with the same authority to do so as were the judges who were called in and tried the Gordon and MeCarver cases, supra. Not only this, but. the constitutional provisions before mentioned, in express terms, confer jurisdiction upon the circuit judges to hear and try civil and criminal cases in all the counties of the State, and permit the Legislature to establish a separate criminal court in any county which has more than fifty thousand inhabitants; but that provision is not mandatory. It may or may not do .so,, just as it sees proper. If it does not, then, as a matter of course, the circuit court retains jurisdiction of both civil and criminal causes regardless of the population of the county. But suppose the Legislature does establish a separate criminal court in such counties as it has done in the city of St. Louis and in the counties of Jackson, Buchanan, Greene and others, and concede that the Legislature has the power under the Constitution to not only abate the jurisdiction of the circuit judges in such counties to try criminal cases, but that, it has the power also to entirely deprive them of such jurisdiction, and conceding further that the various acts of the Legislature creating the criminal courts of those various counties, either in express terms or by implication, deprived the circuit judges of those counties of all jurisdiction to try criminal cases therein and conferred exclusive power upon the criminal courts so established, yet it cannot be logically contended that the Legislature cannot by an express act, such as the one here under consideration, restore to such circuit judges the jurisdiction to hear and determine criminal • cases as fully and as completely as they possessed it before they were so deprived of that jurisdiction. And when the act in question conferred jurisdiction upon the judge of Division No. 7 of the circuit court of Jackson county to hear and determine causes sent to him on change of venue from Division No. 1 of the criminal court of the county, or by being called in by that court, or by the circuit or criminal courts of any other county, his jurisdiction is just as complete and perfect to try such causes as is that of the judge of the circuit court of Saline or Buchanan county when called in as provided by law.

By the act in question the Legislature conferred upon the judge of Division No. 7 of the circuit court of Jackson county the same authority and jurisdiction to .hear and determine both civil and criminal cases that is possessed and exercised by the circuit judges all over the State, and he and they may be called into another circuit or criminal court when not prohibited by statute to hear and determine cases therein, as was held by the able and well-considered cases of Gordon and MeCarver, supra.

I am, therefore, clearly of the opinion that the act in question is not vulnerable to the constitutional assaults before suggested.