Ex Parte Bass

I concur in the principal opinion by ATWOOD, J., but desire to add a word to what is said in the dissenting opinion of RAGLAND, C.J., concerning the right of this court to declare a statute unconstitutional ex mero motu.

For a long time it has been consistently held that in safeguarding its own jurisdiction this court may inquire whether a construction of the Constitution is involved and the question preserved in cases whereof appellate jurisdiction here depends on that ground (Art. 6, Sec. 12. Mo. Constitution), and this though the point be not raised by any party to the proceeding. Sometimes, it is said, we may conclude a constitutional question inheres in a case even without a specific presentation of that issue either here or below — if it appears the trial court's judgment could not have been rendered without passing upon the question. [Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 137, 18 S.W.2d 441, 444; Schildnecht v. City of Joplin, 35 S.W.2d 35.]

These decisions bear on the right of this court to determine whether its jurisdiction attaches because the case calls for a construction of the Constitution. But in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124, assailed in the dissenting opinion, we had unquestioned jurisdiction for another reason. It was an original proceeding in prohibition to keep one of the circuit judges of the State within his jurisdiction, and our writ was issued under Section 3 of Article 6, of the Constitution, which gives the Supreme Court "a general superintending control over all inferior courts" and confers on it power to issue original remedial writs. If we may raise a constitutional question sua sponte to keep ourselves within our jurisdictional range, may we not sometimes do the same thing to confine lower courts to their proper bounds.' Being possessed of the cause and having the express right to determine constitutional questions, undoubtedly we have inherent power to decide them whenever necessary to a proper disposition of the case presented. And it is held in State ex rel. v. Nolte,315 Mo. 84, 90-91, 285 S.W. 501, 503, that substantially the same rules govern the presentation and consideration of constitutional questions in an original proceeding here as apply in appealed cases, and that this court may decide such questions when inherently involved in the determination of the case, although they have not been raised as orderly procedure requires.

In criminal cases sometimes a mandate of the Constitution cannot be thwarted merely because the defendant consents. Thus it was ruled in State v. Mansfield, 41 Mo. 470, 475, and State v. Talken, 316 Mo. 596, 600, 292 S.W. 32, that a defendant in a felony case cannot waive his constitutional right to a jury trial even by consent below and failure to raise the point in this court on appeal. And jurisdiction of the subject-matter cannot be waived. Speaking with reference to the rights of a defendant it is said in 12 Corpus Juris. section 203, page 774: "Those rights guaranteed to accused persons by the constitution in which the state as well as the accused person is interested may not be waived by the accused, and therefore submission by him to proceedings under statutes in derogation of these rights does not estop him to deny the validity of such statutes. Of this nature, for example, are all statutes affecting the jurisdiction of the court." Again, the same work declares, Section 217, page 786, that "by the better rule the question as to the constitutionality of a statute on which a criminal prosecution is based may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal."

Without meaning to sanction a broad application of these statements of the law to every situation their language might seem to cover, it can be safely asserted they do suggest there are instances in which the constitutionality of a statute affecting the jurisdiction of our courts as institutions, particularly in criminal causes, may be a question inseparably connected with the case — a question in which the State has a vital interest that it cannot waive, if the State can raise such questions at all; for if it be true that the defendant cannot waive such questions because the State has an interest in them, how can it be contended the State itself cannot raise them, or may waive them?

But the dissenting opinion so holds, declaring the constitutionality of the concluding sentence of Section 12426. Revised Statutes 1919, now Section 8350, Revised Statutes 1929, can never be challenged except by some boy under seventeen years of age who has been committed to the Missouri Reformatory pursuant to its provisions — this under the general rule that constitutional objections cannot be interposed except by a person whose property or rights are affected, and evidently on the further theory that a circuit judge acting officially in defense of his jurisdiction, and not in defense of his personal rights, does not come within that class. To this the writer does not agree as applied to the facts of the instant case, though the authorities are conflicting. [30 A.L.R. 397, note.]

The State has a direct interest in the integrity of its Constitution. [State ex rel. Brewster Atty.-Gen. v. Doane,98 Kan. 435, 440, 158 P. 38.] In State v. Wiley, 109 Mo. 439, 444, 19 S.W. 197, it was held the State could in an appropriate direct proceeding assail the constitutionality of an act establishing a criminal court in Greene County; and in State ex rel. Wiles v. Williams, 232 Mo. 56, 71, 133 S.W. 1, 34 L.R.A. (N.S.) 1060, it was ruled by this Court en Banc without dissent that even a ministerial officer, a county treasurer, could attack the constitutionality of a statute when advised by the Attorney-General to do so. And in Michigan it has been held the Attorney-General may attack the constitutionality of a statute byquo warranto. [Taggart, Atty.-Gen., ex rel. Mason v. Perkins,73 Mich. 303, 312, 41 N.W. 426.]

It will not do to say that in all instances we may invoke the Constitution though the parties do not, merely because we have jurisdiction of the controversy for some other reason — as, for illustration, that the amount in dispute exceeds $7500, that the title to real estate is involved, or because the proceeding originated here. The unconstitutionality of a statute generally may be waived by the litigants. Furthermore, the decision of such questions where the authority exists, is, as has been said, one of the graved and most delicate of judicial functions and ordinarily should follow only after argument and mature consideration. There is also the matter of comity, or due regard for the co-ordinate legislative department of the state government to be considered. It was only after years of evolutionary struggle that the paramount authority of the judiciary was established. [12 C.J. sec. 206, p. 777, et seq.]

But in the Wells-Walker case, supra, this court was confronted with what it deemed a hopeless clashing between two statutes; Laws 1927, page 129, now Section 14163, Revised Statutes 1929, permitting the judge of any court having jurisdiction of delinquent children in his discretion to order such children to be prosecuted under the general criminal law, and Laws 1927, page 379, amending Section 12426, Revised Statutes 1919, now Section 8350, Revised Statutes 1929, requiring all commitments of boys under the age of seventeen to the Missouri reformatory, training school or penitentiary to be made by the juveniledivision of the circuit court. The court was not satisfied with the effort to harmonize the two statues made in State ex rel. v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061, and considered them in conflict; but held Section 14163 (and 14162) repealed the foregoing part of Section 8350 by implication, and further on its own motion that the objectionable part of Section 8350 is unconstitutional because not covered by the title of the acts in which it was included, and because it denies to girls equal protection of the law, the last mentioned view being in accord with the general holding and theory (though on different facts) of State v. Gregori, 318 Mo. 998, 2 S.W.2d 747.

There may be some question about the right or propriety of a court's declaring unconstitutional a statute which it has already held was repealed; but this was obviously because the learned author of the opinion was unwilling to rest his conclusions on the latter ground alone. The situation was one where the public interest was involved. The matter was left in doubt as to whether the criminal court or the juvenile court had jurisdiction in certain circumstances to try minors under seventeen accused of violations of our criminal laws, where liberty or even life might be at stake. In this situation the court was justified in raising constitutional questions deemed decisive of the case.

In State ex rel. Kelly v. Kirby, 260 Mo. 120, 168 S.W. 746, an attempt was made by writ of prohibition to attack the constitutional existence of the Juvenile Court of Greene County, and this court refused to entertain it because the relator had filed no demurrer or any sort of adversary pleading to the return of the respondent circuit judge. But in the course of the opinion this court referred to the gravity of the matter and said an attempt to overthrow a juvenile court "established by the Legislature from the most humane motives and . . . designed to protect and help the future men and women of the State and fit them for the duties of citizenship, should only be brought upon the reasonable belief that the act sought to be annulled violates the constitutional rights of the relator in some essential manner;" and the opinion further said this court would not consider such an attack, even if properly presented, if there were any reasonable theory upon which the act of the Legislature could be constitutionally upheld.

In the Wells-Walker case, the effort was not to overthrow a court resting on a solid statutory foundation, because of some supposed underlying constitutional infirmity in the statute, but it was rather to uphold both the juvenile courts and the criminal courts by delimiting their respective jurisdictions and relieving them from confusion resulting from a conflict in the statutes. The same reasons that restrained this court in the Kelly-Kirby case from entertaining the constitutional questions tendered made it necessary and to the public interest to decide them in the Wells-Walker case. But in the opinion of the writer the circumstances were exceptional and the Wells-Walker case ought not to be regarded as authority generally permitting this court to raise constitutional questions when they have not been presented and preserved as orderly procedure requires.

The Wells-Walker case being properly ruled on its facts, the principal opinion in the instant case, which follows it, is correctly decided. Henwood, White, Frank and Gantt, JJ., concur: Ragland, C.J., dissents.